Zawal v Wingecarribee Shire Council [2012] NSWLEC 1016

Land and Environment Court New South Wales

Medium Neutral Citation: Zawal v Wingecarribee Shire Council [2012] NSWLEC 1016 Hearing dates: 12, 13 December 2011 Decision date: 18 January 2012 Jurisdiction: Class 1 Before: Murrell C Decision: Appeal Upheld Catchwords: APPEAL: Development Application for 5 lot subdivision. Reasonableness and nexus of conditions for applicant to provide stormwater infrastructure for catchment through the subject site Legislation Cited: Environmental planning and Assessment Act 1979 Regional Environmental Plan No 1-Drinking Water Catchments Wingecarribee Local Environmental Plan 2010 Cases Cited: Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308 Category: Principal judgment Parties: Mr P J and S J Zawal (Applicants)

Wingecarribee Shire Council (Respondent) Representation: Counsel Mr D Wilson - Barrister (Applicants)

Ms M Hawley - Solicitor (Respondent) Solicitors Mr B Bilinsky (Applicants)

Lindsay Taylor (Respondent) File Number(s): 10883 of 2011

Judgment 1The applicant in these proceedings is seeking to subdivide into five residential allotments land known as No 29 Willow Street Willow Vale, being lots 11 and 12. 2The council approved the subdivision on 14 July 2011 and the applicant objects to a number of conditions imposed by the council. These conditions are numbered 10, 11 and 17. Evidence was given to the Court on behalf of the Respondent Council by Mr Lucas, Manager of Engineering Services and Mr Kalanoski, Development Engineer, both employed by the Council. For the applicant, expert evidence was given by Mr Algie, Consultant Engineer. Their respective comments on the conditions are in Attachments 1 and 2. 3Condition 10 relates to the creation of a positive covenant showing the location of stormwater facilities and requiring that they be maintained in a safe and functional manner. Furthermore, the condition provides for the council to conduct maintenance on the subject stormwater facilities at the owner's expense, if the stormwater facilities are not maintained to the agreed standard. 4Condition 11 also requires a restriction as to user to prevent change in shape or alteration of stormwater facilities as approved by the Council. 5Condition 17 is for the civil engineering works and services and those parts of the condition appealed are for the provision of adequate stormwater drainage infrastructure (pits, pipes, open channels, detention storage) for the conveyance of stormwater passing through the site from upstream and a drainage swale overland flow path must be provided within the proposed driveway to convey stormwater from Willow Street and upstream through the subdivision, to prevent inundation of any proposed, existing or adjoining buildings. 6The site is located on the southern side of Willow Street and the subject lots 11 and 12 have a total area of 5,435 sq m. The site has a street frontage of some 61 m and side boundaries of about 92 m. At the rear of the site there is a main sewer line and to the east of the site on the adjoining property is a 2 m wide drainage easement, from Willow Street to the golf course at the rear, that is owned by the council. The site falls in a south easterly direction with a fall of about 3 m. Currently erected on the land is a dwelling house that is to be proposed lot 1 with an area of 1,250 sq m. The other lot sizes are respectively: Lot 2 1,085 sq m Lot 3 1,090 sq m Lot 4 1,010 sq m Lot 5 1,000 sq m