Guilfoyle Developments Pty Ltd v Woollahra Council [2011] NSWLEC 1006

Land and Environment Court New South Wales

Medium Neutral Citation: Guilfoyle Developments Pty Ltd v Woollahra Council [2011] NSWLEC 1006 Hearing dates: 21 December 2010 Decision date: 12 January 2011 Jurisdiction: Class 1 Before: Fakes C Decision: 1. The appeal is dismissed. Catchwords: DEVELOPMENT CONSENT - deletion of a condition of consent relating to disposal of stormwater Legislation Cited: Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995 Cases Cited: Billgate Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 436 Category: Principal judgment Parties: Guilfoyle Developments Pty Ltd (Applicant) Woollahra Council (Respondent) Representation: Ms S Hill, solicitor (Applicant) Susan Hill & Associates Mr P Rigg, solicitor (Respondent) Norton Rose Australia File Number(s): 10841 of 2010

1COMMISSIONER : This is an appeal pursuant to s 96(6) of the Environmental Planning & Assessment Act 1979 (the Act) against the deemed refusal by Woollahra Council (the council) to grant consent to a s 96 Development Application Number 324/2008/6. 2The development application seeks to modify a part of Condition 13 of DA 324/2008/1 approved on November 17 2008 as amended by s96 DA 324/2008/4 approved on December 2 2009 that relates to drainage. 3The applicant is seeking to delete subclauses 13(a), 13(b) and 13(c) of Condition 13 that in essence require the construction of a pipeline to remove surface stormwater from an approved residential flat building. The applicant seeks to discharge the stormwater to council's kerb and gutter. In doing this, the applicant proposes to rebuild a section of kerb and gutter beyond the immediate boundary of the site. The site and locality 4The site comprises 2 allotments being 4-10 and12 Guilfoyle Avenue Double Bay respectively. An approved development for a 6 unit residential flat building is currently under construction. 5The site is on the southern side of Guilfoyle Avenue close to the intersection with Bay Street and in close proximity to the Double Bay commercial centre. Opposite the site is Guilfoyle Park, which is located in the centre of Guilfoyle Avenue. 6To the east is a five-storey commercial/retail building and to the immediate west is a single storey dwelling house. Further to the west are other residential flat buildings. On the northern side of Guilfoyle Avenue are two and three storey residential flat buildings. 7On the southern side of Guilfoyle Avenue are a number of mature and well-established Platanus x hybrida (Plane Tree) street trees planted in the grass nature strip between the footpath and the kerb. 8The site and the immediate vicinity are almost flat with a gradual fall to the west. A comment from council's Heritage Officer in a report to council's Development Control Committee dated 20 October 2008 notes that Guilfoyle Avenue was originally known as Swamp Street. Numerous council documents state that the site is in a critical area in the flood plain. The condition in contention and relevant background 9The condition in contention is part of condition C13 Road and Public Domain Works - Council approval required . This condition covers works on the road and footpath as well as drainage works. 10The original DA for the demolition of two existing residential flat buildings and the erection of one new residential flat building was approved on 17 November 2008. The referral response from council's technical services on 13 November 2008 notes that In general there are no objections to concept stormwater plan subject to...the stormwater discharge is to be connected directly to Council's stormwater pipe located connecting the drainage from the proposed works to the existing stormwater system located in Guilfoyle Rd with a minimum of 375 dia RCP for at least 30m. A condition of consent, Condition C 13, reflecting that requirement was drafted and formed part of the final conditions of consent for the development. [In the Court proceedings this pit is referred to as Pit 1 and is located downstream of the boundary between 20/ 24 Guilfoyle Avenue.] 11In March 2009 a s 96 application (DA 324/2008/2) was approved to modify aspects of the development however this did not include the stormwater drainage works. 12On 12 November 2009 the applicant lodged another s 96 application (DA 324/2008/4) to modify and remove part of Condition C 13 on the basis of the distance to the nearest gully pit of 54 m and the technical difficulty of achieving an adequate fall to that pit. The applicant cites cl 6.4 of council's Draft Stormwater Drainage Management Development Control Plan (SDM DCP) and the possibility of an exemption from discharging into council's below ground system if the required extension exceeds 30m. In the alternative, the applicant suggests discharge to the kerb and gutter. 13On 2 December 2009 council approved a modification to Condition C 13 with an allowance of reduced coverage of the pipe and an alternative location (option 2) for a connection to the existing drainage system to the north of the site, across Guilfoyle Park to the north-western corner of Guilfoyle Avenue and Bay Street [referred to as Pit 3]. 14On 26 July 2010 the applicant lodged another s 96-development application (DA 324/2008/6), the subject of this appeal, to modify or remove part of Condition C13. 15The relevant part of the condition in contention is as follows: C13.... Drainage a) Construction of a standard gully pit in the kerb fronting the subject site in accordance with Council's Standard "Grated Gully Pit with extended Kerb Inlet" drawing DRI. b) Construction of a new 375mm RCP in-ground drainage pipeline to be connected to Council's existing drainage system via the following options: 1. A pipeline to connect from a new gully pit outside the site to near the existing Council pit located downstream of boundary 20/24 Guilfoyle Rd to be constructed with sufficient distance to enable the pipeline to have the required fall. The design pipeline can have a minimum cover and Council will consider a grade less than 1% as a result of the lack of grade in the area and a box culvert. 2. A new pipeline constructed in a northeasterly direction and connect to the existing drainage system at the northern corner of Guilfoyle Ave (north) and western side of Bay St. The pipeline can be laid across Guilfoyle Park. c) The developer shall be responsible for carrying out any service investigations to allow gravity connection. d) Prior to pumping any water onto the road or public stormwater system that approval is obtained from Council under section 138(1)(d) of the Roads Act 1993 see Condition of Approval "Disposal of site water during construction" 16In a series of responses from council's technical services, referrals to other council officers and correspondence from the applicant, the merits and technical issues of the condition are canvassed. As part of this process, council proposed alternatives to the original condition in order to achieve an adequate fall and minimise the impact of the works to the roots of the street trees to the west of the site. The council had not determined DA 324/2008/6 by the time the applicant appealed to the Court. Council later approved this DA subject to a minor change to Option 1 to reduce the diameter of the pipe to 300mm to be installed about 2m from the kerb in the road shoulder and to connect to an existing pit outside No 30 Guilfoyle Avenue (some 74m from the site and referred to in the proceedings as Pit 2). The planning framework 17Clause 25(2) of the Woollahra Local Environmental Plan 1995 (WLEP) refers to water, wastewater and stormwater systems. It states that: 25(2) 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. 18The council's Draft Stormwater Drainage Management Development Control Plan (SDM DCP) dated 14/12/2006 also applies. Clause 6.3 covers 'Connection to Council system'. Cl 6.3.2 Connection to Council's Kerb and Gutter (in part states) Connection to Council's kerb and gutter is only possible where a suitable site layout allows it. ... Cl 6.3.3 Connection to Council's below ground drainage (in part) For larger developments, other than dwelling houses and minor alterations and additions, the stormwater drainage discharge off the site is to be connected to Council's nearest below ground drainage system (Refer clause 6.4 for exemptions for variations to this requirement). Full design details are to be submitted to and approved by Council and the connection constructed by the developer at their full cost. The new drainage system is to be constructed to Council's specifications and requirements. 19Clause 6.4 refers to 'Exemption from discharging directly into Council's below ground drainage system'. Relevantly it states: An exemption from the requirement to discharge directly into Council's below ground drainage system may be considered where: ·The required extension of Council's below ground drainage system to the site exceeds 30 m and a merit-based assessment by Council deems an exemption is warranted. The merit-based assessment will consider factors such as the magnitude of the development, extent of required works beyond the minimum requirement and suitability of an alternative solution. ·Council has determined based on the merit of the development that the continued discharge of stormwater to the kerb and gutter is satisfactory. Factors to be considered include the nature of the works, proximity of Council's existing below ground drainage system, catchment flows and suitability of Council's existing below ground drainage system to cater for surface flows. The evidence 20The hearing commenced with a site inspection. Mr P Boehm, owner of the dwelling to the west of the site gave evidence in support of a written statement (with attached photographs) concerning the frequency of nuisance flooding in the street. Mr Boehm states that he and the applicant have an agreement for a 'double pipe drainage' [system] that will collect surface and rainwater in one pipe and subsurface water in the other. He says this arrangement is a result of his concerns about the impact of the proposed development, in particular the underground car park, on the movement of groundwater and the risk of flooding to his property. The photographs, taken on 31 May 2010, show a series of large puddles along the southern side of Guilfoyle Avenue. Mr Boehm also attached the "Double Bay Catchment Flood Study" prepared for Woollahra Council in June 2008. 21Mr N Mitchell, Consultant Engineer for the applicant and Mr M Casteleyn, council's Design and Investigation Engineer provided expert engineering evidence. The experts prepared a joint report and gave evidence on site and in Court. 22The experts agree that the street is subject to flooding in greater than 1 in 5 year ARI (Average Recurrence Interval) and the pipes from the existing drainage pits on the southern side of Guilfoyle Avenue reach their capacity in 1 in 2 year flood events. They agree that the site is almost flat and that after even a small amount of rain, water ponds in the street between 12 and 22 Guilfoyle Avenue. This they say is due to the flatness of the street and the uneven kerb and gutter (partly due to the street trees and partly due to its state of repair). 23Mr Mitchell's position is that the construction of a new gutter (including replacement of the sandstone kerb stones) between the site and the nearest pit would meet the intent of council's technical standards and therefore enable the discharge of water from the site into the kerb and gutter. He states that while the gradient is relatively flat it is workable and that tree roots could be worked around or trimmed to remove high points. 24In his written statement he considers that nuisance flooding would not change due to the low capacity of the street drainage system. 25Mr Casteleyn states that if the new development discharges directly to the kerb, ponding will occur every time it rains and that nuisance flooding will be aggravated. This, he says, is unacceptable to council. He considers that even if the kerb is regraded to the nearest pit, the kerb, the topography and condition of the pipe system will result in ponding. 26It was clear from the site inspection that the site is flat, the kerb and gutter are uneven and that the growth of tree roots and trunks have contributed to the unevenness. The bases of a number of trees have grown over the kerbstones. It is also clear that the camber of the road runs water to the southern side of the street. Pits 1 and 2 were noted to be relatively shallow and contained many leaves. Pit 3 was observed to be newer, deeper and cleaner than Pits 1 and 2. 27In Court there were discussions between the engineers on the merits of the options and the rationale behind the applicant's and the council's positions. 28The engineers agree that the site contributes about 20% of the stormwater runoff into the nearby section of Guilfoyle Street. They also agree that even this water was piped, nuisance flooding would still occur. 29The option of onsite detention by way of water tanks was canvassed as a method of reducing the nuisance flooding. The engineers agreed that while a 10,000 litre tank could be installed on the site, this would be of limited benefit. 30Mr Casteleyn stated that the site is located in an area exempt from on-site water detention. This is part of council's flood management strategy. He explained that there is a need for this strategy due to the topography of the municipality combined with aging infrastructure that is unable to cope with the extent of development that has occurred since it was installed. The principle he said is to hold water back, through on-site detention, in the upper part of the catchment and to allow it to move as freely as possible in the lower part of the catchment. This is in order to even out the flows and minimise back-ups and flooding. There is a works program for upgrading the stormwater system that is likely to include Bay Street but Guilfoyle Street is not a priority. In this respect, he considers the piping of the stormwater from the site to be more effective and achieves an incremental improvement, particularly when more development is likely to occur in the immediate vicinity. 31Mr Mitchell states that there is less stormwater entering the street from this development than the development it replaces. This is due to the provision of 15% of the site as deep soil planting compared to 100% surface cover prior to development. From the discussions, it appears that while the underground car park may have an impact on ground water [and therefore infiltration capacity], there is still a net reduction in potential stormwater discharge. 32Mr Mitchell also stressed that he considered the most cost-effective and beneficial option is to relay the kerb and gutter. This he says will provide benefit to nearby properties and therefore will benefit the council. 33Mr Casteleyn did not change his opinion that the most appropriate methods of disposal of stormwater from the site and this type of development is through a piped system to pit 3 on the corner of Bay Street. In his opinion he considers this to be a more straightforward option than regrading the kerb and gutter. 34It is noted that there has been no arboricultural or other input into the applicant's alternative proposal to regrade and relay a section of kerb and gutter, nor have any plans been prepared. Mr Casteleyn stated that apart from advice from the Parks & Gardens unit, input from council's heritage officer would also be required if this option were to be formally considered by council. Submissions 35Ms Hill for the applicant contends that cl 6.4 of the SDM DCP, in permitting an exemption to the piping of stormwater, does not contemplate the elimination of discharging stormwater to council's kerb and gutter. 36The merit assessment required by this clause covers the magnitude of the development, extent of the works beyond the minimum, suitability of an alternative and suitability of council's existing below ground drainage system. 37Ms Hill asserts that given the increase in permeable area there will be a 7-20% decrease in magnitude of the volume of water to be discharged from the site. In this way she says the development does not add to or aggravate the current situation. The distance to all of the pits far exceeds the 30m minimum distance in cl 6.4. She contends that the alternative solution proposed by Mr Mitchell provides a better outcome as piping will only remove the ponding from the front of the site and Mr Boehm's property. She restated the accepted facts that the council's existing below ground system is limited in its capacity for anything beyond a one in two year event. She maintains that the council came to its decision to require the installation of a pipe without any assessment of the merits. In conclusion, to require the undergrounding of the stormwater system would be a waste of time and money as it would achieve very little improvement to the current level of nuisance flooding. 38With respect to cl 25(2) of the WLEP, Ms Hill contends that it requires the provision of stormwater disposal to be adequate and this does not imply it has to be equal to or better than the existing system although she contends that the kerb and gutter alternative proposed by Mr Mitchell is superior to the current situation. 39Mr Rigg for the council contends that the relevant parts of condition of consent C13 were included in the original development consent on the basis that the existing method of stormwater disposal was considered by council to be inadequate and the applicant was thus required to provide for adequate disposal of stormwater. 40In this regard he says that the proper test in cl 25(2) of the WLEP is not on whether the new development discharges less than the previous development but whether adequate provision has been made for the disposal of stormwater. He contends that cl 6.4 of the SDM DCP is not a substitute for cl 25(2) of the WLEP and that cl 6.4 can only be considered if cl 25(2) is satisfied. 41Mr Rigg cites Billgate Pty Limited v Woollahra Municipal Council [2004] NSWLEC 436 at para 19 where Bignold J held: The Court may not grant development consent unless it is satisfied that adequate provision has been made for the disposal of stormwater from the land it is proposed to develop in terms of cl 25(2) of the LEP. 42While the case in Billgate involved the proposed use of an existing easement, Bignold J went on to say in para 19: In the present cases where it is proposed to utilise the existing easement over an adjoining property the question of the adequacy of the provision may legitimately include consideration of the legal capacity or competence to utilise the existing easement (in addition to any consideration of its physical capacity). 43In the matter now before the Court, Mr Rigg contends that the applicant's submission to use the existing kerb and guttering is analogous to the easement issue in Billgate . He states that the applicant in the statement of facts and contentions in reply acknowledges the inadequacy of the current kerb and gutter, as do the engineers in their joint report. He contends that any discharge of stormwater to the street would have to be to kerb and gutter that is operating effectively and this is not the case in this part of Guilfoyle Avenue. Mr Rigg submits that cl 25(2) can only be satisfied by the provision of a piped system of stormwater disposal. Also, notwithstanding the adequacy question, the only element of cl 6.4 of the DCP that is satisfied is that the length of pipe will exceed 30m. 44Mr Rigg also argues that the council is looking for an improvement in the drainage system with each new development. Findings 45In meeting the requirements of s 96(3) and s 79C(1) of the Act I have considered the particular provisions of the WLEP, the SDM DCP and other relevant matters. 46In this matter, in accordance with cl 25(2) of the WLEP, I am not satisfied that adequate provision has been made for the disposal of stormwater from the site, and therefore in accordance with that clause and the decision by Bignold J in Billgate para 19 the appeal to modify s 96 Development Application Number 324/2008/6 is dismissed. 47It can be taken from the joint report prepared by the parties' engineers that the current kerb and gutter system is inadequate due to a number of factors including its state of repair and lack of continuous fall. The site view confirmed this opinion. While this lack of adequacy could be considered determinative as stated in cl 25(2) of the WLEP, I consider that the provisions of the Draft SDM DCP should also be considered. 48In this case cl 6.3.3 of the SDM DCP provides that for larger developments, such as the development approved for this site, the stormwater discharge is to be connected to council's nearest below ground drainage system. Accordingly, the council imposed the condition of consent in contention. However, cl 6.4 of the DCP enables a merit-based assessment of the situation to determine whether an exemption from cl 6.3.3 is warranted. 49In this matter, the applicant contends that the council did not undertake such an assessment in the drafting of condition C13. However in reviewing the numerous referral responses from council's Technical Services section, I am satisfied that due consideration was given to the constraints of the site and that the council considered the applicant's responses and subsequently modified the condition. 50However, as the matter is now before the Court my consideration of cl 6.4 is that while the required extension exceeds 30m and the quantity of stormwater to be discharged from the site is likely to be less than the development it replaces, the fact remains that the existing kerb and gutter does not satisfactorily deal with the stormwater discharged from the site. The alternative solution proposed by the applicant is a concept that has not been detailed. There is no arboricultural opinion on the impacts of the proposal on the street trees. In my view, the trees are a constraint and at best, the proposal would be of limited benefit given the continued growth of the trees and therefore the likely future disturbance to the relayed kerb and gutter. 51Mr Casteleyn made an uncontested statement that briefly outlined the council's flood management strategy. The council clearly admits the limitations of the both the current kerb and gutter and associated drainage pits in Guilfoyle Avenue. The council considers that the best long-term strategy is to avoid further aggravation of the existing problems with discharging water onto the street by requiring a connection to the underground drainage system. This is notwithstanding the acknowledged current limitations of this system. However, I note Mr Casteleyn's statement that there is a works program for the upgrading of the underground system that is likely to include Bay Street. I also note his statement that Guilfoyle Avenue is a low priority. 52I also note the introduction to the Draft Stormwater Drainage Management Development Control Plan that it is one of a series of 4 DCPs that have been introduced to control all aspects of stormwater management within the Woollahra local government area. Clause 1.2 in part states: The need for these plans has arisen due to the increasing demands on an aging system that was designed in an era where little was understood about stormwater management and there was less intensive urban development. 53I therefore consider that the imposition of condition of consent C13 is not unreasonable in the circumstances of this case and as a result of the foregoing the Orders of the Court are: (1)The appeal is dismissed. (2)Section 96 Development Application Number 324/2008/6 to delete part of condition of consent C13 relating to disposal of stormwater from 4-10 and 12 Guilfoyle Avenue Double Bay is determined by refusal. (3)All exhibits except A, G, 2 and 3 are returned. _______________________ J Fakes Commissioner of the Court