Land and Environment Court of New South Wales CITATION : Our Firm Facility Pty Ltd v Wyong Shire Council [2001] NSWLEC 243 APPLICANT: Our Firm Facility Pty Ltd PARTIES : ACN 094 177 349 RESPONDENT: Wyong Shire Council FILE NUMBER(S) : 10471 of 2001 CORAM: Lloyd J KEY ISSUES: Development Application :- nursing home - sewerage service - adequacy Environmental Planning and Assessment Act 1979, s 97 LEGISLATION CITED: State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability, cl 12 Wyong Local Environmental Plan 1991, cl 29 CASES CITED: Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370; CSR Limited v Fairfield City Council & Anor [2001] NSWLEC 221 DATES OF HEARING: 19/09/2001, 20/09/2001, 21/09/2001, 24/09/2001 and 25/09/2001 EX TEMPORE JUDGMENT DATE : 09/25/2001 APPLICANT: Mr S B Austin QC and Mr M C Fraser (Barrister) SOLICITORS: Winston Readford LEGAL REPRESENTATIVES: RESPONDENT: Mr J A Cole (Solicitor) SOLICITORS: Abbott Tout JUDGMENT: 10 IN THE LAND AND Matter No.: 10471 of 2001 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 25 September 2001 Our Firm Facility Pty Ltd ACN 094 177 349 Applicant v Wyong Shire Council Respondent EXTEMPORE JUDGMENT HIS HONOUR: 1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against the deemed refusal of a development application for a 100-bed nursing home at No. 40 Pearce Road, Kanwal. The subject land is within zone 1(c) (Rural Holding zone) under the Wyong Local Environmental Plan 1991 (which I shall call "the Wyong LEP"). Hospitals and housing for aged or disabled persons are permissible with development consent within the zone. 2. The council has prepared a draft local environmental plan under which it is proposed to rezone the land to zone 10(a) (Investigation Precinct zone), in which the proposed use would be prohibited and in which State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability (which I shall call "SEPP 5") would not apply. The draft plan has not yet been certified under s 65 of the EP&A Act and so has not been publicly exhibited. Although the draft plan is a matter to which regard must be had as a circumstance of the case, its relevance in these circumstances is so marginal that it does not displace the statutory provisions of both the Wyong LEP and SEPP 5, both of which apply to the proposed development. 3. A number of issues which were originally identified were resolved either before or during the hearing. For example, it was initially contended by the council that the proposed development did not satisfy sub-cll 12(1) and (2) of SEPP 5 which relate to access by residents of the development to a range of facilities and support services. This issue was resolved by way of proposed conditions of consent, agreed to by the parties, for the provision of foot paving to the nearest bus stop and the provision of a minibus or similar transport to residents of the proposed development. 4. I propose only to deal with those issues which remain unresolved. Firstly, the issue of sewerage. This emerged as perhaps the major issue during the hearing. The council contends that the proposed development does not comply with either cl 29 of the Wyong LEP nor with sub-cl 12(4) of SEPP 5. Clause 29 of the Wyong LEP states: The Council shall not grant its consent to the carrying out of any development on any land unless (a) an adequate water supply and facilities for the removal or disposal of sewage and drainage are available to that land or (b) arrangements satisfactory to the Council have been made for the provision of that supply and those facilities. 5. Subclause 12(4) of SEPP 5 states: (4) Water and sewer (a) The consent authority must not consent to a development application made pursuant to this Part unless the consent authority is satisfied, by written evidence, that the housing will be connected to a reticulated water system and have adequate facilities for the removal or the disposal of sewage. 6. My attention has been drawn to the decision of the Court of Appeal in Codlea Pty Limited v Byron Shire Council (1999) 105 LGERA 370, in which that Court construed a provision which was in similar terms to cl 29(b) of the Wyong LEP. 7. In my opinion, neither that case nor cl 29(b) of the Wyong LEP are relevant. This is because of a provision of SEPP 5, which applies to the land in this case, which is as follows: 5(2) If this Policy is inconsistent with any other environmental planning instrument made before or after this Policy, this Policy prevails to the extent of the inconsistency . 8. It seems reasonably clear that there is an inconsistency between the wording of sub-cl 12(4) of SEPP 5 and cl 29(b) of the Wyong LEP, so that any further consideration of cl 29(b) and the construction placed upon clauses of that kind in Codlea Pty Ltd v Byron Shire Council are irrelevant. 9. The principal evidence on this issue was given by Dr I Naoum, the council's investigation engineer, by Mr M D Preece, the applicant's hydraulic consultant, and by Mr N Ingham, a consultant town planner and registered surveyor who gave evidence for the applicant. 10. Shortly stated, the council contends that that sewage disposal is not available to the land because the existing sewerage system which serves the land is overloaded and cannot accommodate any more connections. The applicant contends to the contrary. The development application proposes to connect the sewerage service of the proposed development to the existing sewer main which passes through the property and which discharges to a pumping station known as pumping station T15, which would in turn result in the sewage eventually going to the Toukley treatment works, as I understand it. It is pumping station T15 which is said by the council to be overloaded. 11. An alternative method of providing sewerage services to the land, which is not preferred by the applicant but which is nominated by it as an alternative, would be to provide a package pump station for the nursing home and pumping to either a carrier main or a sewage pumping station approximately 1.7 kilometres away, which in turn would result in the sewage going to the Charmhaven treatment works. It is my understanding that that system is not overloaded and would have the capacity to accommodate the sewage from the proposed development. This alternative would require a separate approval, since it would involve the laying of a pipeline for a distance of about 1.7 kilometres through both private and publicly owned land. 12. According to Dr Naoum, there are three methods that are used to calculate the capacity of a pumping station: (a) Feedback from operations staff as to the surcharge levels of a pumping station. This is simply a matter of contacting the operations staff who would be able to say whether there had been any problems with the system; (b) Analysis of pump hours. This method extracts raw data from the system as to the number of pumping hours of the station; and (c) Theory calculation from tenement count. This method requires a tenement count to be conducted. It involves physically going around the area of the catchment to count the number of equivalent tenements (ETs) within it. I should add that such a tenement count was carried out in this instance. 13. In relation to the first method, the applicant wrote to the council on 10 November 2000 in the following terms (inter alia): We propose for the purposes of the DA application to adopt without prejudice your suggestion of a package pump station with a rising main to the existing 450 millimetre carrier main that drains to SPS C12 . 14. I interpolate here that this is apparently a reference to the applicant's alternative proposal which would result in the pumping of sewage to the Charmhaven system. The letter then continues: However, in the meantime, our client has indicated he will pursue all options available for the disposal of the sewage, and for this purpose we would need to further investigate all opportunities within Kanwal sewage system. To this end, we retain the developer's right to amend the application subject to further analyses. Your memorandum dated 27 October 1999 states that SPS T15 is overloaded and that an ET of 170 cannot be accommodated. If the above proposed project is significantly less in ET, say 40 to 50 ET, could this be accommodated within the system? Alternatively, is SPS [Sewerage Pump Station] T15 able to be upgraded to accommodate an additional flow? In order for Hughes Truman to verify that all options have been investigated and assessed, please forward to us a copy of Council's sewer analysis data for the Kanwal system. 15. By letter dated 28 November 2000, the council's investigation engineer, Dr Naoum, replied in the following terms: Reference is made to your letter dated November 10 2000 regarding the feasibility of connecting the above proposal to Council's sewerage system. A review of the Kanwal sewerage system has been carried out recently. Currently, Pump Station (PS) T15 drains to PS T19 catchment area, and the results reveal that any upgrading of the PS T15 will cause overloading problems in the downstream system, ie PS T19 catchment area. However, in the short term, an additional load of 40 - 50 ET's can be accommodated in the PS T15 system without the necessity of upgrading the Station. Eventually, this station will be diverted toward north by a gravity system to PS C13 that is located in Minnesota Road. 16. In the course of his evidence, Dr Naoum said that when he wrote the letter he was under the impression that pumping station T15 accommodated approximately 400 ETs. A subsequent count by him disclosed that in fact the number of ETs going to that pumping station are 639. Accordingly he, that is Dr Naoum, does not place any reliance on the first method of calculating the capacity of the pump station which he described. 17. The applicant, however, submits that the letter of 28 November 2000 operates as an estoppel; that is to say the council is bound by it. It is a formal communication in response to a written request and the council cannot now be heard to resile from the representation it made; and the applicant, it is submitted, relied upon it. 18. In my opinion, an estoppel does not operate in this instance. There is no evidence of reliance, or of the applicant changing its position in reliance on the letter. Indeed, the letter sent by the applicant to which Dr Naoum replied clearly states: We propose for the purposes of the DA application to adopt without prejudice your suggestion of a package pump station with a rising main to the existing 450 millimetre carrier main that drains to SPS C12 . 19. The fact that the applicant subsequently explored and propounded the alternative of connecting to pumping station T15 is not in my opinion an act which creates an estoppel against a council. 20. Turning now to Dr Naoum's second method, the actual pump operating hours at the pump station T15 have been produced and they show great variations between the dry weather flow and wet weather flow. According to Dr Naoum, when one averages this out, the pump station has been shown for the last twelve months to have been pumping about 4.6 hours per day. According to the design criteria for pump stations issued by the Department of Land and Water Conservation, the ratio of peak wet weather flow to average dry weather flow should be 7:1. In the present case, it seems that the average dry weather flow is either 3.8 or 3.57, depending upon whether one adopts the calculations of the applicant's expert or the applicant's junior counsel. The figures also show that the peak wet weather flow at this particular pumping station was 21.51 hours. If one adopts the Department's design criteria, this means that the average pumping hours of the pump station should be one seventh of that, which I calculate as being 3.07 hours. We know that the average pumping for dry weather is noticeably greater than that. It is, as I have said, either 3.8 or 3.57, depending upon whose calculations one adopts. This suggests that, at least based upon the Department's design criteria, the pumping station is overloaded. 21. The third method referred to by Dr Naoum is the application of the actual tenement count. As I have said, the total number of equivalent tenements which drain to this pumping station is 639 as counted by Dr Naoum. Again, he relies upon the Departmental standards. We know, for example, that the pump capacity at this pump station is 25.34 litres per second. A pump of that capacity, according to the Departmental standards, should have no more than 280 ETs going into it, yet in the present case there are 639 which, according to Dr Naoum, represents a theoretical overload of 220 per cent. 22. The applicant submits, however, that one can in this case disregard the theory, because we know that there is no problem in practice. There has never been a surcharge; and the maximum pumping hours during peak wet weather is 21.5 hours. The proposal is to add, by way of this development, an additional 40 ETs. This will generate an additional pumping time of something between 1.1 and 1.5 hours at pump station T15, depending on whose calculations one adopts. Even adopting the lower calculation, that would increase the maximum pumping time in a twenty-four hour period during wet weather to 22.6 hours, and if one takes the alternative calculation it would be 23.1 hours of total pumping time. This does not leave too much of a margin for safety. There would be very small "buffer" in the system. It is not known, for example, whether the recorded peak wet weather flow during the twelve months that records were taken is in fact the true peak wet weather flow. There may well be worse rainfall events or more severe rainfall events that those indicated. In my view, this is a case where the precautionary principle ought to be adopted; and in view of the very small margin for safety and the very small "buffer" in the system, it would be inappropriate to allow sewage from this development to discharge to pump station T15. Moreover, it is known that this is a mine subsidence area, which presents an increased risk of movement in sewerage pipelines and an increased risk of storm and ground water infiltration during periods of wet wether. This effectively means that the appeal must fail. 23. As I have said, the applicant's alternative method of disposal of sewage to the Charmhaven system is one which requires a separate application and separate consideration. I cannot be satisfied that cl 12(4) of SEPP 5 has been satisfied, namely that adequate facilities for the removal or disposal of sewage are available to this development in the absence of the feasibility and the acceptability of the alternative method of disposal of sewage which has been suggested. 24. That makes the rest of the issues somewhat academic, but I shall say something briefly about them. I should add, however, that I would not have been inclined to grant a deferred commencement consent. As I have said, the question of sewage disposal is one which will require a separate application and separate determination. The difficulties that can arise with deferred commencement conditions was illustrated by the recent decision of the Chief Judge in CSR Limited v Fairfield City Council & Anor [2001] NSWLEC 221. In my opinion, this is not an appropriate case where a deferred commencement condition ought to be applied. 25. Turning briefly to the other issues: firstly, bulk and scale. The proposed development was criticised because it looked like an institution. In my opinion, that alone would not be a sufficient ground to refuse the development. The fact is that it is an institution. It is next to an institution, namely a large and modern church building. It is opposite an institution, namely the Scout Hall. Institutions such as this are permissible within the zone. It is what it is and it does not pretend to be anything else. It has been designed to reduce its somewhat monolithic appearance. It does not present to the street frontage as an overly large building. It does not present as a building which is as large as the church next door. I do not think I need say anything further about that issue. 26. The next issue was downstream stormwater. The council is concerned about nutrient runoff into the downstream stormwater catchment. I am nevertheless satisfied, however, by the evidence of Mr R Engelbrecht, the hydraulic engineer called by the applicant, that his opinion can be accepted, being that the proposed development will lower the present nutrient levels which run off the land. For example, he said here there will be no cats and dogs, there will be no car washing, there will be a large roof area and overall nutrient levels in the runoff from this site will be lower than those that presently occur. I do not see this as a ground for refusing the development. 27. Next is the design. A number of detailed criticisms of the design were made by Ms K Fraser, the council's social planner. On behalf of the applicant, evidence on this issue was given by Mr M S Relf, a specialist access consultant. In my opinion, many of the detailed criticisms of the design have been met by both amended plans and by the evidence of Mr Relf. It may be the case that some aspects of the design can be improved, but the Court is not concerned with achieving a level of perfection. The Court is presented with the development as proposed. The Court is not in the business of redesigning it. Either the development as proposed is acceptable or it is not. Perhaps it can be improved. I have no doubt that it can. But the development is not so deficient in design that it would be refused on that ground alone. 28. Next is the question of vegetation removal. There is no doubt that this development will involve the removal of trees. However, the trees to be removed from within the building footprint are all multi-stemmed regrowth of no great significance. I had the benefit of a view of the site in the presence of the parties. No trees within the footprint of the site of any significance were pointed out to me. In my opinion, this would not be a sufficient ground to refuse the proposal. 29. Finally, there were a number of disputed conditions. I shall refer briefly to them for the assistance of the parties. Firstly, the council seeks a covenant pursuant to s 88E of the Conveyancing Act 1919, such covenant required to be registered on the property title prohibiting the use of the land for anything but housing for older people or people with disability. In my opinion, a covenant of this kind is quite inappropriate. In MacDonald v Mosman Municipal Council (1999) 105 LGERA 49 I examined a line of authority in this Court in which it has been consistently held that it is inappropriate for conditions of development consent to require the imposition of covenants on the title to land. It would be a rare and exceptional case where that would be an appropriate measure. 30. Next is the question of contributions under s 94 of the Act. Fortunately, the parties were able to agree on most of the items for which contributions are sought. There was disagreement in respect of three items, namely the contribution for open space, the contribution for community facilities (the land component) and the contribution for community facilities (the works component). 31. In relation to open space, the difference between the parties is a contribution for what I understand to be a cycleway. I must say I question the need, or any need, generated by this development for a cycleway. It is suggested that cycleways can be used also as walking paths. Most of the people to be accommodated in this nursing home I suspect would be not the sort of people who would use the cycleway either for cycling or walking. I, therefore, favour the applicant's submissions on that point and would not require a contribution towards a cycleway. 32. As to community facilities (the land component), it is said that this is required for community centre purposes, in particular a child care centre. Again, the connection between this development and the need for a childcare centre is tenuous in the extreme. Again I favour the applicant's submissions on this point and would not require a contribution towards this facility. 33. The other component is community facilities (works) and again that is for the same kind of facility. For the same reason, I favour the applicant's submissions on this point and would not require a contribution towards such a facility. 34. Turning briefly to other conditions, the applicant has proffered as a condition that the proprietor of the nursing home facility shall maintain at all times arrangements for a general medical practitioner to be available to attend at the nursing home as necessary. The council, by its proposed condition, wants written evidence to be provided to it of such agreement. In my opinion, it is not unreasonable for the council to be provided with written evidence of that fact. If there is an agreement with a medical practitioner or medical practitioners, the council should have the benefit of seeing such an agreement. 35. Next is the courtesy bus which the applicant has agreed to provide. The council wants this to be provided at no cost to the residents. This could in turn have inequitable consequences upon those residents who choose to use it and those who do not. The residents would all pay for it indirectly in any event, if a condition were to be imposed that it be provided at no cost to residents. If the courtesy bus was not provided, the residents would have to use the public bus service nearby, for which they would have to pay a fare. In my opinion, the requirement that a courtesy bus be provided at no cost to residents is one which is not called for. The courtesy bus should be available, but I see no reason why a fare should not be provided on a needs basis. 36. A condition is sought by the council for the payment of any costs incurred by it in making good any pavement damage to its roads used in the construction of the approved development. That is an appropriate condition and would have been imposed. 37. A condition was sought relating to the provision of kerb and gutter and half road construction across the frontage of the development. The council asked that design plans be approved and the subsequent work itself be approved by the council. The applicant wants it approved by a certifier. Since, however, this work is to be carried out on the council's own land, I think it appropriate that such design and work be approved by the council itself. 38. Other conditions relate to the design. I have already expressed my view on issues relating to design. I would not have imposed such conditions for the reasons I have given above. As to proposed conditions relating to compliance certificates for stormwater disposal, for soil erosion and the prevention of siltation, the council requires this information to be provided prior to the issue of the construction certificate. In my opinion, this can be provided prior to the commencement of construction. The conditions to which I have referred are the principal conditions which were argued. 39. It follows that the formal orders of the Court are as follows. 1. The appeal is dismissed. 2. The exhibits may be returned. I hereby certify that the preceding 39 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. Associate 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.