Land and Environment Court of New South Wales CITATION : Property Partnerships Pacific v Woollahra Council (No 2) [2006] NSWLEC 765 Applicant: Property Partnerships Pacific Pty Ltd PARTIES : Respondent: Woollahra Council FILE NUMBER(S) : 10640 of 2006 CORAM: Roseth SC KEY ISSUES: Development Application :- drainage easment under s40 of the Land and Environment Court Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 s 40 CASES CITED: Castegnet Investments Pty Ltd v Woollahra Council [2005] NSWLEC 647 DATES OF HEARING: 15/11/2005 and 05/12/2006 DATE OF JUDGMENT: 12/05/2006 Applicant: Mr G Green, solicitor of Pike Pike & Fenwick (15/11/2005) LEGAL REPRESENTATIVES: Mr N Eastman, barrister instructed by Ms E Cooper of Priest McCarron (06/12/2006) Respondent: Mr M Connell, solicitor of HWL Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 5 December 2006 10640 of 2005 Property Partnerships Pacific Pty Ltd v Woollahra Municipal Council (No 2) JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Woollahra Municipal Council (the council) of a development application to demolish an existing four-storey residential flat building containing seven dwellings and erect a new three-storey residential flat building containing two dwellings over basement parking on lot 30 DP 590068, known as 10 Annandale Street, Darling Point. The site 2 The site is on the western side of Annandale Street. Its area is 828m2. A four-storey apartment building containing seven dwellings now occupies the site. Most buildings in the street are apartment buildings, with the exception of the south-adjoining building, 8 Annandale Street, which is a heritage-listed house. Relevant planning controls 3 Local Environmental Plan 1995 (LEP 95) zones this site Residential 2(b). Residential Development Control Plan 2003 establishes detailed control for residential flat buildings. State Environmental Planning Policy 1 – Development Standards (SEPP 1) deals with the variation of development standards. 4 Several other planning instruments, which the council did not raise as an issue, also apply to the site. The proposal 5 The applicant proposes to demolish the existing apartment building on the site and erect a smaller building containing two dwellings. The new building would necessitate the removal of several trees, including two Canary Date Palms (Trees 4 and 5), which now stand in the northern setback. 6 The proposed building has a Floor Space Ratio (FSR) of 0.97:1 and a height of 12.78m. These dimensions exceed the maximum permissible of 0.75:1 and 9.5m in LEP 95. The applicant submitted objections under SEPP 1 to the development standards. The Court-appointed planning expert, Mr N Ingham considered the non-compliance justified, on the grounds that the existing building, as well as most of the buildings in the street, also exceed the controls. While the non-compliance was an issue in the council's Statement of Issues, it did not raise it as an issue at the hearing. Given that the Mr Ingham and the parties agree, and the justification for non-compliance is sound, I accept that the non-compliance is justified. The issues 7 The council submitted a Statement of Issues containing seven issues. However, following Mr Ingham's report, the applicant's amendments in response to Mr Ingham's suggestions and a late report by the council's Manager of Public Open Space, Mr D Sheils, the issues were re-formulated at the hearing, as follows: · Whether the proposal can be approved without a downstream drainage easement. · Whether one, two or none of the Canary Date Palms should be transplanted elsewhere on the site. · Whether those of Mr Ingham's suggestions for change, to which the applicant has not responded in amended plans, should be accepted by the Court, ie the lowering of the roof by 300mm, reducing the roof overhang over the upper floor terrace, and placing a planter box at the edge of the terraces. · Whether the objectors' concerns are valid. Drainage easement 8 Clause 25(2) of LEP 95 provides: The Council must not grant consent to the carrying out of development on land or the subdivision of land to which this plan applies for any purpose unless it is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop. 9 Section 40 of the Land and Environment Court Act 1979 relevantly provides: i If the Court has determined to grant development consent on an appeal under section 97 of the Environmental Planning and Assessment Act 1979, the appellant may apply to the Court for an order imposing an easement over land. ii The Court, on application under subsection (1), may make an order imposing an easement over land if it is satisfied that: (a) the easement is reasonably necessary for the development to have effect in accordance with the consent, and (b) … (c) … (d) … 10 The Court's Practice Direction No. 21 became effective on 2 February 2004. Among other things, the Practice Direction provides: An application seeking such an order can only be made "if the Court has determined to grant development consent on an appeal under s97 of the Environmental Planning and Assessment Act 1979": s40(1). Accordingly, it will be inappropriate for any of the abovementioned questions (requiring adjudication upon an application under s40 of the Land and Environment Court Act) to be raised at the hearing of the appeal pursuant to s97 of the Environmental Planning and Assessment Act 1979. It is only if such an appeal is upheld and development consent is granted that an application for an order under s40 can be made. It is only at this point that those questions become relevant to the exercise of the power conferred by s40 of the Land and Environment Court Act. In order to preserve the integrity of s40 such questions should not be raised or adjudicated upon at the hearing of the relevant development appeal. 11 Notwithstanding the injunction in the Practice Direction that appears to construe s40 as if an order can be made under that section only if an appeal has already been upheld, several Judges of the Court have rejected the argument that applications under s40 are limited to cases where the Court has already granted development consent. Most recently, in Castagnet Investments Pty Limited v Woollahra Municipal Council [2005] NSWLEC 647 Talbot J listed the cases that dealt with this issue and came to the conclusion that, where a commissioner is satisfied with all aspects of an application (including the physical arrangements of the drainage system), he/she may delay the issuing of orders to allow the applicant to seek a drainage easement under s40 of the Act. Indeed, were it any other way, an applicant would find itself in a "Catch 22" conundrum, since it could not obtain development consent without a drainage easement and could not obtain a drainage easement without development consent. 12 In Castagnet Talbot J concluded: Having regard to the earlier decisions in this Court, commencing with Billgate , I can accept that the final decision to grant consent can be deferred pending an application pursuant to s40 for the grant of an easement provided that in all other respects the Court has reached the necessary degree of satisfaction, including pursuant to cl 25(2), that it will be otherwise prepared to grant consent. 13 It seems to me therefore that, in order to adjourn this matter to allow the applicant to seek a drainage easement under s40 of the Court Act, I have to be satisfied that · the application is worthy of approval in all respects (including the physical arrangements for the drainage system) other than the drainage easement; and · the easement is reasonably necessary for the development. 14 As regards the physical arrangements for the drainage system, I note that the applicant submitted to the council a Stormwater Disposal Concept Plan prepared by Lipscombe & Associates. The plan indicates a drainage easement along the southern setback of No 45 New Beach Road. The easement is in a part of No 45 where it does not disrupt existing development or displace trees. The engineer's comment (in a Referral response of 5 October 2005) was: Apart from the easement requirement there are no other objections to the stormwater disposal concept plan prepared by Lipscombe & Associates Pty Ltd, Drawing No Sheet No H11, H01, H02, Ho7 Rev C dated 04/07/05. 15 On the above basis I am satisfied that the physical arrangements for the drainage are acceptable. As regards the reasonable necessity for the easement, I note that the site is significantly below the level of Annandale Street, so that if rainwater were disposed to that street. It would have to be pumped. Where a choice is to be made between a gravity system and a pumped system, the gravity system is to be preferred. This is partly because it is the environmentally more sustainable solution (not relying on energy to function) and partly because pumps can malfunction. On that basis I am satisfied that the easement is reasonably necessary for the development. The objectors' concerns 16 The Court heard the evidence of one objector and visited two apartments whose owners were unable to be present. Ms L di Napoli, who lives at 8 Annandale Street, said that her principal concerns were about being overlooked from balconies facing towards her property and about noise from an elevated pool. The applicant had amended the proposal to provide a translucent screen to both. The council and Mr Ingham agreed that these measures would overcome the impact on privacy. Ms di Napoli's letter objects to bulk and overshadowing; however, the new proposal will reduce these impacts. 17 The Court visited the apartment of Mr N Gross at 3/7 Annandale Street. The proposal will increase the view from the living room and decrease it from the bedroom. The existing palms, Trees 4 and 5 significantly obscure the view. Mr Ingham suggested that the proposal should be lowered by 300mm to provide a better view to the bedroom. 18 The Court visited the apartment of Mr J Balderstone at 4/9 Annandale Street. Mr Balderstone's objection was to the new building being moved in a northerly direction (though his email described the movement as "easterly"). The council and Mr Ingham agreed that the proposal's impact on 4/9 Annandale was acceptable, if not beneficial. My visit to the apartment confirmed this. The Canary Date Palms 19 By the time of the hearing, the dispute between the council and the applicant had been reduced to the retention, removal or replanting of one or two palm trees. The three experts had different opinions on this. Mr Shiels wanted two palms (Trees 4 and 5) in the existing northern setback to be kept. Since they are located within the proposed driveway, they could be kept only if the driveway were replaced by a car lift. Mr Ingham considered this unacceptable. I agree with him. A car lift is an energy-wasting solution, apart from being inconvenient and unattractive. It is too high a price to pay for the retention of the two palms. 20 However, Mr Shiels agreed that, as a second best solution, the taller of the two palms, Tree 5, could be transplanted towards the west, though he thought that, if they could not be kept, both affected palms should be transplanted. Mr Ingham thought that transplanting the larger palm would interfere with the views from 3/7 Annandale Street. In response to Mr Ingham's concerns Ms Sonter suggested that Tree 6, a smaller tree, should be transplanted, rather than Tree 5. 21 In my opinion, Ms Sonter's suggestion provides the best compromise between public and private views. Tree 6 should be transplanted. The Court-appointed planning expert's three suggestions 22 Mr Ingham's first suggestion was that the roof of the proposal should be lowered to improve the view for 3/7 Annandale Street. The applicant provided a photomontage that showed that the lowering of the roof would slightly increase the view from the bedroom of No 3/7. I note that the applicant has already lowered the proposal in amended plans and that, on balance the impact on views from No 3/7 is beneficial. I do not think that a further lowering of the roof by 300mm is justified. 23 Mr Ingham's second suggestion was to reduce the roof overhang over the upper floor terrace. There was no photomontage to indicate the impact of this on views from Rushcutters Bay; however, it was possible to interpolate the existing photomontage to imagine the impact. In my opinion, it would make a minor difference only. Given that the proposal already significantly reduces the bulk of the existing building, I do not think that the suggestion is justified. 24 Mr Ingham's third suggestion was to place a planter box at the edge of the terraces, in order to improve the privacy of the properties to the west. The applicant argued that the separation distances were sufficient. Given the length of terraces and their suitability for outdoor living, in my opinion Mr Ingham's suggestion has merit. Planter boxes should be provided corresponding to his specification. Conclusions 25 An unusual feature of this proposal is that it replaces a bulky building with a smaller one. By the time the matter came to a hearing, the only remaining issue between the parties was whether one or two palm trees should be retained, removed or transplanted. That issue was resolved by the compromise suggestion to transplant a palm tree to a new location. 26 In my opinion, the concerns of the three objectors whose properties the Court visited are not valid, since the benefits of this proposal on them will exceed the adverse impacts. I am satisfied on all the merit issues that the proposal is worthy of approval. Since I am also satisfied on the proposed drainage system and that system requires an easement through an adjoining property, I adjourn the proceedings to allow the applicant to seek the easement by negotiation or by application to this Court under s40 of the Court Act. Addendum The above judgment was published on 23 November 2005 as Judgment No 1. The applicant subsequently made application under s40 of the Court Act for the grant of a drainage easement. In a judgment dated 10 November 2006 Biscoe J granted the easement. The parties have agreed on conditions of consent. Consequently nothing stands in the way of my making orders to uphold the appeal. Orders 1. The appeal is upheld. 2. Development application to demolish an existing residential flat building and erect a new residential flat building containing two dwellings over basement parking on lot 30 DP 590068, known as 10 Annandale Street, Darling Point, is determined by the grant of consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits 9 and B. __________________ Dr John Roseth Senior Commissioner 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.