Land and Environment Court New South Wales Medium Neutral Citation: Damerau v Central Coast Council [2020] NSWLEC 1417 Hearing dates: 3 September 2020 Date of orders: 10 September 2020 Decision date: 10 September 2020 Jurisdiction: Class 1 Before: Bish C Decision: The orders of the Court are as follows: (1) The Court grants leave to rely on amended subdivision plan, version D, dated 28 February 2020. (2) The appeal is dismissed. (3) Development Application DA/27/2019, which as amended seeks subdivision of one residential lot into two residential lots, the demolition of a shed, and connection to an existing sewer system on Lot 2 in DP 9672, also known as 15 Marine Parade, Rocky Point is refused. (4) All the exhibits are retained. Catchwords: DEVELOPMENT APPLICATION – Torrens title subdivision – essential services – insufficient information in order to assess development application – flood risk Legislation Cited: COVID-19 Legislation Amendment (Emergency Measures) Act 2020 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Wyong Local Environmental Plan 2013 Texts Cited: BMT WGM Wyong River Catchment Flood Study 2014 Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020) WMA Water Tuggerah Lakes Floodplain Plan 2014 Wyong Development Control Plan 2013 Category: Principal judgment Parties: Andrew Damerau (First Applicant) Quanhong Sun (Second Applicant) Central Coast Council (Respondent) Representation: Counsel: A Damerau (Litigant in person) (First Applicant) Q Sun (Litigant in person) (Second Applicant) K Mortimer (Respondent) Solicitors: Central Coast Council (Respondent) File Number(s): 2020/00004187 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against refusal of Development Application DA/27/2019 (DA) by the Central Coast Council (hereafter the Council) which as amended, seeks subdivision of one residential lot into two residential lots, the demolition of a shed, and connection to Council's sewer system on Lot 2 in DP 9672, also known as 15 Marine Parade, Rocky Point (hereafter the site). Background 1. The DA was lodged with Council on 10 January 2019, and after notification, no submissions in objection were received. 2. On 23 December 2019, the Council formerly refused the DA on the grounds of increased risk to life from flooding, potential for non-functioning sewer system during flood event, incompatibility with constraints of the site and as a result the proposed development not in the public interest. 3. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 4. In response, the Land and Environment Court (the Court) ordered a conciliation that was commenced in Court between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (the Court Act). The parties agreed for the conciliation to proceed remotely by Microsoft Teams without a site visit. This approach to the hearing procedure is consistent with the Court's COVID-19 Legislation Amendment (Emergency Measures) Act 2020 and the Court's COVID-19 Pandemic Arrangements Policy, which commenced on 23 March 2020. 5. Conciliation was subsequently terminated as an agreement could not be reached, pursuant to s 34AA(2)(b) of the Court Act. The parties agreed for the appeal proceedings to be disposed of by myself as the presiding Commissioner, based on the facts and evidence provided at the conciliation conference, pursuant to s 34AA(2)(b)(ii) of the Court Act. 6. Prior to the conciliation of the appeal, the applicant sought amendments to the subdivision plan that supports the DA, for which the Court (Registrar) granted leave to rely on, and which the respondent did not oppose. This plan amendment thereby amends the DA, which is now before the Court in this appeal. The respondent in response, amended their Statement of Facts and Contentions (SoFC), dated 15 June 2020, which is relied on in the assessment of this appeal. 7. The contentions as specified in the amended SoFC, tendered as Exhibit 1, that remain for the Courts consideration in this appeal include: 1. site unsuitable due to flood risk, 2. insufficient information to assess and manage disposal of sewage for proposed Lot 101, and 3. consequently, the proposed development is not in the public interest. 1. The documents identified by the parties to be relied on, together with the submission of the Council's expert engineer, Mr Brendan Dee, are considered by the Court in the assessment of the application. The documents identified by the parties include: 1. Exhibit 1 – Amended SoFC, dated 15 June 2020. 2. Exhibit 2 – Respondents Bundle of documents filed with the Court on 28 August 2020. 3. Exhibit 3 – Councils Flood Engineer Expert Report, by Mr Rudy VanDrie, filed 12 August 2020. 4. Exhibit 4 – Councils Engineer Expert Report, by Mr Brendan Dee filed 12 August 2020. 5. Exhibit 5 – Councils Planning Expert Report, by Ms Katrina O'Malley filed 12 August 2020. 6. Exhibit 6 – Respondents amended conditions of consent, filed 3 September 2020. 7. Exhibit A – Amended SoFC in Reply, filed 19 June 2020. 8. Exhibit B – Applicants Bundle of Documents, filed 25 August 2020. 9. Exhibit C – Class 1 Application. 10. Exhibit D – Statement of Environmental Effects, filed 18 February 2020. 11. Exhibit E – Stormwater Management Plans, filed 26 February 2020. 12. Exhibit F – Applicants draft conditions of consent, filed 31 August 2020. 13. Exhibit G – Amended Proposed Subdivision Plans, filed 11 June 2020. 14. Exhibit H – DA under appeal, filed 18 February 2020. 1. After termination of the conciliation, as agreed between the parties, the applicant filed an amended subdivision plan, to amend the date for the version (D) relied on, and the Council amended their conditions of consent, which were both filed on 3 September, and replace Exhibits G and 8, respectively. The Court grants leave to rely on the amended subdivision plan, unopposed by the respondent, which appends to the amended DA. 2. The proposal to be assessed by the Court involves residential subdivision of one lot into two lots, and specifically to create: Lot 101, with an area of 452m2 and which is vacant, with frontage to Marine Parade; and Lot 102 with an area of 766.1m2, and contains an existing dwelling with frontage to Palmer Street/crown reserve. The proposed development also seeks on proposed Lot 101 to demolish a shed and connect to Council's vacuum sewer system, which is located at the intersection of Marine Parade and High Street. The site 1. Currently, the site has a single storey dwelling with separate shed, and dual street frontage to Marine Parade in the west and to Palmer Street/crown reserve in the east. The site is a regular, rectangular shape, that fronts 17.045m to Marine Parade, and 17.835m to Palmer Street and the reserve. The site has an area of 1214m2. (The Court notes there is a slight discrepancy between the total area of the site as existing, and the total areas of the two proposed lots combined, at 1218.1m2. This discrepancy does not constrain the Courts determination, however should be addressed in future development applications). 2. The site is generally flat, bounded to the north and south by existing residential dwellings, and is in close proximity to a reserve adjacent to Tuggerah Lakes. Relevant planning controls 1. The requirements of s 4.15(1) of the EPA Act are relevant for the Court's consideration, which must be satisfied for the grant of the DA under appeal. 2. The facts before the Court do not specify the zoning of the site, as described in the Wyong Local Environmental Plan 2013 (WLEP). However, there is no contention that the proposed development is not permissible, nor inconsistent with the zone objectives, pursuant to cl 2.3 of the WLEP. The issue of permissibility must be addressed jurisdictionally in any future application for this site, although does not constrain the Court in its determination of the DA under appeal, as the DA is refused on separate grounds. 3. The parties agree that the site is not flood affected as it is elevated above flood levels, forming part of a 'flood island'. Therefore, the requirements of cll 7.2 and 7.3 of the WLEP are not in contention for the site. 4. The parties agree that cl 7.9 of the WLEP, which relates to provision of essential services, is a contention that the Court must be satisfied to grant consent to the DA. The contention relates specifically to cl 7.9(c) below: 7.9 Essential services Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required— (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable vehicular access. 1. The Wyong Development Control Plan 2013 (WDCP) is relevant for the Courts consideration of this appeal, and the respondent draws the Courts attention specifically to Part 4, which relates to subdivision. 2. The contentions that relate to managing risk to persons in a flood event, as the site is isolated in a flood, refer to the Council's WMA Water Tuggerah Lakes Floodplain Plan 2014 and BMT WGM Wyong River Catchment Flood Study 2014. Jurisdictional preconditions not satisfied for the provision of essential services, specifically sewage, for proposed Lot 101 1. In the amended SoFC, the (third) contention as raised by the Council is that there is inadequate information to assess the provision of essential services, specifically connection to the vacuum sewer main for proposed Lot 101. There is no issue regarding provision of essential services to Lot 102, as the existing dwelling on the site is already connected to the required essential services, which is not intended to change as a consequence of the proposed subdivision. 2. The applicants however contend that the Council had previously provided advice, in an email to the applicants dated 8 August 2019 from Councils planning expert, Ms O'Malley, attached to Exhibit A, that indicates the issue relating to the sewer disposal was previously addressed. 3. It is unclear on what basis Ms O'Malley has made this assessment, as the Court heard in conciliation from the Councils' engineering expert, Mr Dee, that he still holds concern regarding the connection from proposed Lot 101 to the existing vacuum sewer system located in High Street. Mr Dee has no concerns that the sewer system can handle the additional load, only that there is no detail to address a potential conflict with existing services along the frontage of the proposed lot and impact to the existing vacuum system at the connection point. Therefore, this contention is still pressed. 4. I accept that the applicants were somewhat confused when confronted with this evidence as they had understood that the essential services issue had been resolved (including by a deferred commencement condition as initially proposed by the Council in conciliation). 5. The Council initially sought to resolve this issue in the conciliation by a deferred commencement condition, however, before the conciliation was terminated Council retreated from this position. The respondents amended conditions of consent reflect their revised position. 6. It must be acknowledged that throughout Council's review of the DA, the applicants were provided ample opportunity to secure the required services of a qualified expert to provide a suitable design for a sewer disposal management plan for proposed Lot 101, similar to what was provided to address the provision of water supply essential service (but chose not to do so). This contention has remained in the amended SoFC, which is post dated Ms O'Malley's email to the applicants, and therefore is still a live issue for the Court's assessment. 7. I accept that the applicants have provided sufficient detail on the proposed lot (101) connection to the existing water mains, as shown in Exhibit E, to address the supply of water, pursuant to cl 7.9(a) of the WLEP. This is not in contention. 8. The applicants however have provided no concept or detailed plan for proposed Lot 101 to connect to Council's existing vacuum sewer system, located in High Street. No further documentation on sewer disposal has been provided to the Court, than was submitted in the original DA, which Council at the time the DA was refused. The Council sought to address the requirements cl 7.7(c) of the WLEP by requiring the provision of detail on the service locations, with long section and utility allocation profiles of the proposed main, and address any impacts to the extension of the vacuum sewer main. 9. There are no plans or details before the Court that describe the design and connection of proposed Lot 101 to Councils existing sewer mains, including pipe dimensions, location/depth of pipes, relationship to existing services along site frontage, connection points etc. 10. The applicant has provided no expert evidence on this issue, and from their submissions fails to understand the necessity for this information to be addressed prior to consent for a DA. 11. I therefore find that the DA provides insufficient information and am not satisfied that the essential sewer service of sewage disposal can be provided for proposed Lot 101. 12. After assessment of the evidence before me and the Council's expert engineer submission in the conciliation, I accept that there is insufficient information in the application under appeal to be satisfied that essential services to proposed Lot 101, specifically relating to the disposal of sewage, has been provided to grant consent to the DA. The provision of sufficient information as it relates to an essential service is a precondition, pursuant to s 4.15(1)(a)(i) of the EPA Act and cl 7.9(c) of the WLEP, that must be satisfied before the Court exercising the functions of a consent authority can exercise its power to grant development consent. 13. The applicants were given a number of opportunities to provide the required information to satisfy cl 7.9(c) of the WLEP during the Councils consideration of the DA before it was refused and in the communications prior to conciliation, as outlined in the amended SoFC, and also by the Court during the conciliation. The applicants were also reminded in the conciliation that the provision of relevant engineering drawings that relate to subdivision work are required to accompany a DA application, pursuant to Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). However, the applicants clearly advised the Court in the conciliation that this information was not necessary at this stage of the consent, could be addressed by conditions of consent and sought to proceed with assessment of the DA based on the evidence already before the Court. I disagree for the reasons provided previously. 14. I am satisfied that the Court has not been provided with sufficient information to address cl 7.9(c) of the WLEP to grant consent to the DA. Subsection 4.15(1)(a)(i) of the EPA Act is therefore not satisfied. 15. On the basis of the assessed inadequacy of the development application with respect to the provision of supporting details on the disposal of sewage for proposed Lot 101, the DA under appeal is refused. Conclusion 1. The proposed development has been assessed by the Court, based on the evidence provided, including the DA's (amended) supporting plans, documents, expert reports and expert submission in the conciliation of the appeal, as required under s 34AA(2)(b)(ii) of the Court Act, which was agreed by the parties as the relevant power the Court could make its determination of the DA under appeal. 2. I have considered the relevant sections of the EPA Act in my assessment of this appeal. I find that the proposed development does not satisfy the relevant provisions of the EPA Act to grant consent to the DA under appeal, specifically subs 4.15(1)(a)(i). The proposed development, as it is intended to be carried out, will result in a contravention of the EPA Act. 3. The appeal that relates to DA/27/2019 is refused, pursuant to subs 4.16(1)(b) of the EPA Act. Based on this determination to refuse the DA under appeal, I am not required to address the remaining contentions, specifically flood risk, that relate to the DA appeal. These remain undetermined by the Court. Orders 1. Consequently, the orders of the Court are as follows: 1. The Court grants leave to rely on amended subdivision plan, version D, dated 28 February 2020. 2. The appeal is dismissed. 3. Development Application DA/27/2019, which as amended seeks subdivision of one residential lot into two residential lots, the demolition of a shed, and connection to an existing sewer system on Lot 2 in DP 9672, also known as 15 Marine Parade, Rocky Point is refused. 4. All the exhibits are retained. ……………………. Sarah Bish Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2020