Land and Environment Court of New South Wales CITATION : Jacobs v Hurstville City Council [2007] NSWLEC 468 Applicant Kevin Roy Jacobs PARTIES : Respondent Hurstville City Council FILE NUMBER(S) : 10084 of 2007 CORAM: Hussey C KEY ISSUES: Development Application :- Detached garage; stormwater discharge. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Hurstville Local Environment Plan DATES OF HEARING: 20 July 2007 EX TEMPORE JUDGMENT DATE : 20 July 2007 Applicant Mr. K. Jacobs, Applicant in Person LEGAL REPRESENTATIVES: Respondent Mr. J. Merlino, Solicitor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 20 July 2007 10084 of 2007 Kevin Roy Jacobs v Hurstville Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT Background 1 This appeal was lodged against council's deemed refusal of a development application for a detached garage to accommodate 4 vehicles and a boat on land situated at 75 Clarke Street, Peakhurst. 2 The application was subsequently granted conditional consent by council, including a deferred commencement condition requiring the submission of details of the proposed stormwater disposal arrangements. The appeal was subsequently changed to an appeal against this deferred commencement drainage condition. 3 However, in the interim period, the applicant proposed further minor detailing arrangements to the proposal, which were not opposed by the council. Consequently, the appeal issues mainly concerned the appropriateness of retaining the deferred commencement drainage condition. 4 The full details of the site, proposal and planning controls are contained in the statement of facts and contentions, on which I rely. The site is within the Zone No 2 (Residential) and the proposal is permissible with consent. The relevant planning controls are tabulated as follows: Planning Controls Hurstville Local Environmental Plan 1994 o Cl 5 - Interpretation o Cl 8 - Zone objectives and development control table - Zone No. 2 (Residential Zone) and Zone No.6(a) (Open Space Zone) o Cl 9 - Council policies o Cl 14 - Tree preservation orders o Cl 15 - Services o Cl 18 - Development in open space zones o Cl 19B - Foreshore scenic protection area o Cl 22 - Excavation, filling of land Greater Metropolitan Regional Environmental Plan 1994 - Georges River Catchment o Part 1, Cl 5(1)(a)(b)(c)(d)(e) - Aims and Objectives o Part 2, Cl 7(b) - Planning Principles o Part 2, Cl 8(a)(b)(f)(g) - General Principles o Part 2, Cl 9(5) & (9) - Specific Planning Principles Draft Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment (Amendment No.1) o Schedule 1 - Amendments to the Greater Metropolitan Regional Environmental Plan No. 2 National Parks and Wildlife Regulations 2002 o Cl 11(1)(m) - Littering and damage Single Dwelling House Code o Cl 3.9 - Landscaping Code for the Erection of Outbuildings o Cl 6.2 - Allotment coverage o Cl 6.3 - Size and total floor index o Cl 6.4 - Building Lines o Clause 6.5.4 - Garages, sheds and cabanas o Cl 6.6 - Height o Cl 6.7 - Foreshore Scenic Protection Area o C; 7 External finishes The evidence 5 Insofar as a number of people attended today's s 34 On Site Hearing, evidence was presented by Mr S Kuntz (councils engineer), Ms A Aversa (councils town planner), Mr R Wilson (neighbour from 71Clarke Street), Mr P Rossini (neighbour from 73 Clarke Street) and Mr G Briscoe Hough (Hurstville Residents Association.) 6 In response to the drainage issue, Mr Jacobs explained that he was satisfied to direct the stormwater into Clarke Street. He preferred to do this via 3x100mm diameter pipes discharging into an existing drainage pit located on the footpath in front of No 73. 7 However, Mr Kuntz explained that the preferred stormwater alignment was via a charged stormwater pipe directly into the kerb in Clarke Street, adjacent to the subject land. This would minimise disturbance to the footpath area and provide a cost effective solution, which would be consistent with council's current requirements for disposal of stormwater from properties on the lower side of the road. 8 Both the neighbours raised concerns about the effectiveness of the proposed stormwater disposal system, to ensure any new system minimises the risk of stormwater surcharges. 9 Mr Briscoe Hough expressed concerns about imposing conditions requiring discharge of stormwater to the upper level Clarke Street, rather than allowing gravity flow into the park at the rear of the site, as occurs by neighbouring properties. Conclusion 10 Having considered the evidence and undertaken a view, I am satisfied that it is reasonable to impose a condition requiring satisfactory disposal of stormwater from the new garage structure. Whilst Mr Jacobs envisages that the stormwater can be disposed of along the footpath into the existing stormwater pit in front of No 73, it is apparent that there are number constraints comprising: o the site topography and levels of the pit, o the levels of the pipelines under of the proposed new driveway and existing driveway at No 73, and o impact of the proposed pipelines on the existing Jacaranda tree in the footpath 11 Under these circumstances, I am satisfied that the deferred commencement condition requiring some detailed site survey information and an associated stormwater design to be undertaken, which addresses the aforementioned conditions, is reasonable to impose in the circumstances of this case. Such design can then be incorporated as part of the future Construction Certificate required by the other conditions of consent. 12 In any case, I note that the other conditions of consent require a Road Opening Permit and it is likely that the aforementioned stormwater design would be required to support the application for this permit. Accordingly I satisfied that the updated conditions, which relate to the amended plans a reasonable to impose and the following orders are then made. COURT ORDERS 1. The appeal is allowed in part. 2. Development consent is granted to DA 20060597 for the construction of a detached garage at 75 Clarke Street, Peakhurst, subject to the conditions in Annexure A. 3. The exhibits may be returned except for 2 and A. ___________________ Hussey R Commissioner of the Court DK/ljr 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.