Wren Investments Pty Ltd v Willoughby City Council [2011] NSWLEC 1167

Land and Environment Court New South Wales

Medium Neutral Citation: Wren Investments Pty Ltd v Willoughby City Council [2011] NSWLEC 1167 Hearing dates: 28, 29 April 2011 Decision date: 10 May 2011 Jurisdiction: Class 1 Before: Brown C Decision: Appeal dismissed Catchwords: MODIFICATION: modify condition of consent to provide for alternate drainage design without need for acquisition of easement over downstream property Legislation Cited: Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Roads Act 1993 Cases Cited: Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) NSWLEC 2 171 LGERA 287 Wren Investments Pty Ltd v Willoughby City Council [2006] NSWLEC 542 Category: Principal judgment Parties: APPLICANT Wren Investments Pty Ltd

RESPONDENT Willoughby City Council Representation: APPLICANT Mr D Wilson barrister

RESPONDENT Ms H Irish barrister APPLICANT Wilshire Webb Staunton Beattie

RESPONDENT Malleson Stephen Jaques File Number(s): 10936 of 2010

Judgment 1COMMISSIONER: This is an appeal against the refusal by Willoughby City Council (the council) of an application to modify a development consent granted by the Court on 28 August 2006 ( Wren Investments Pty Ltd v Willoughby City Council [2006] NSWLEC 542 ) for the demolition of all existing improvements and the construction of a development for older people or people with a disability at 401A and 403 Mowbray Road Chatswood (the site). 2The condition in dispute is the deferred commencement condition in Schedule 1 to the consent that states: Documentary evidence of drainage easement. The applicant shall obtain and register in the Department of Lands and Property Information a drainage easement from one of its adjoining downstream properties to convey stormwater from the development to Council's underground system in Sharland Avenue Chatswood. (Reason: prevention of nuisance flooding). 3The applicant proposes that the deferred commencement condition be deleted and be replaced with a number of operational conditions that reflect a stormwater drainage disposal design prepared by Mr Bruce Kenny, the applicant's drainage engineer. The alternative drainage design involves: (1) amending the initial point of stormwater discharge into council's drainage system from Sharland Avenue to Mowbray Road, (2) constructing a mechanical pump out tank in the basement car park of Block C for stormwater collection to be connected to an on-site detention tank at the Mowbray Road frontage by a rising main, (3) an on site detention (OSD) outlet pipe connecting the OSD tank to the Mowbray Road kerb, (4) the construction of a new stormwater line from the Mowbray Road kerb, west along Mowbray Road, north along Beaconsfield Road and east along Sharland Avenue where it connects to the council's existing stormwater system. The proposed pipeline has a length in excess of 400 m.