Kennedy v Byron Shire Council [2010] NSWLEC 1177

Land and Environment Court of New South Wales

CITATION : Kennedy v Byron Shire Council [2010] NSWLEC 1177

APPLICANT A Kennedy PARTIES : RESPONDENT Byron Shire Council

FILE NUMBER(S) : 10567 of 2009

CORAM: Moore SC

KEY ISSUES: CONSENT ORDERS - DEVELOPMENT APPLICATION - SUBDIVISION :- Stormwater; neighbourhood flooding

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 25 and 26 February, 29 March, 7 May 2010

EX TEMPORE JUDGMENT DATE : 7 May 2010

APPLICANT Mr J Webster SC INSTRUCTED BY LEGAL REPRESENTATIVES: Harris & Co

RESPONDENT Mr A Seton, solicitor Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC

7 May 2010

10567 of 2009 Kennedy v Byron Shire Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

JUDGMENT 1 SENIOR COMMISSIONER: These proceedings relate to a proposed subdivision off Bottlebrush Crescent at Suffolk Park. During the course of the on-site hearing and the subsequent court hearing, options were discussed about a possible alternative to the proposed development on the particular aspect of stormwater detention and disposal. During the course of the site inspection, I had the opportunity to look at an existing stormwater detention structure – not apparently one that was the subject of development consent but a matter that I do not now need to determine in these proceedings. 2 One of the aspects of that detention structure was that it did not cope with (or was not designed to cope with) a 1 in 100 year rain event and that an event frequency somewhat less than that caused flooding that would discharge through an informal spillway over the northern edge of the detention basin and into a number of adjacent properties. The intention now is, as originally proposed in a slightly varied fashion, to augment the downstream drainage system to remove the detention basin that is on the site. The construction of facilities in this fashion is consistent with a scheme that is contained in a report dated 31 January 2008 from WRM Water and Environment (the WRM report), this report being a flood mitigation study. 3 There were a number of objections to the original development proposal – both from the residents to the north (who would experience flooding when the detention basin overtopped) and residents in a development to the south of the south-eastern corner street frontage of the proposed subdivision (who are presently experiencing flooding due to the incapacity of the stormwater system on the site to cope with flows during high rainfall). 4 The WRM report with respect to which the proposed development is now consistent, indicates that, in addition to improving general stormwater flow downstream, the now proposal will have the benefits of removing the likelihood of nuisance flooding to the properties to the north, removing the overland flows to the properties in the south-eastern corner, known as Jabiru Terraces, and also providing a broader community benefit of flooding immunity for the local community at Broken Head Road. 5 The parties have now agreed to enter into consent orders that require reliance on amended plans. I formally grant leave to rely on the amended plans that have been appended to the consent orders. As a consequence of granting the amendment to the plans, the provisions of s 97B of the Environmental Planning and Assessment Act 1979 are potentially triggered and in order to resolve the issues that arise from that section, the consent orders include an order pursuant to s 97B(2) that the applicant is to pay the respondent the agreed sum of one dollar within twenty-eight days of the date of these orders. 6 In addition to those two orders, the further orders of the Court will be that the appeal is upheld: Development Application 10.2005.730.1 for the subdivision of land into nine community title allotments comprising eight residential lots and one community lot and one residual Torrens Title allotment on land (known as Lot 282 DP 1018663 Bottlebrush Crescent, Suffolk Park) is approved subject to the conditions that have been agreed to between the parties and will be annexed to the orders of the Court.