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 7The subject site was rezoned in the Wingecarribee Local Environmental Plan 2010 (WLEP) to R2 low-density residential. The WLEP 2010 rezoned the land from rural 1A which had a 40 ha minimum allotment size. Subdivision is permissible with a minimum allotment size 1000 sq m. The objectives of the R2 low-density residential zone are: * To provide for the housing needs of the community within a low density residential environment. * To enable other land uses that provide facilities or services to meet the day-to-day needs of residents. 8Since the introduction of the WLEP 2010, the council has approved two subdivisions, one for a five lot subdivision of lot151 and a ten lot subdivision of lot 1 number 20 Willow Street, upstream of the subject site. 9The Regional Environmental Plan No 1 Drinking Water Catchments applies to the subject site and the council officer's assessment report states that it is considered that appropriate conditions could be included in a development consent to technically demonstrate that: * the proposed subdivision would have a neutral or beneficial effect on water quality and * the carrying out the proposed subdivision would have a neutral or beneficial effect on water quality. 10By way of background the council officer's report of 15 December 2010 on the subject development application states: The main issue in respect of this subdivision and in fact the whole area west of Carlton Street, which has been rezoned, is the lack of a stormwater infrastructure strategy - the rezoning has overtaken the completion of a stormwater management strategy. In the circumstances, it is recommended that the application be deferred pending the completion of a study to determine a stormwater management strategy. 11The council officer's report goes on to say that the land rezoned is equivalent to thirty-nine lots, and it is estimated that the potential exists for about eighty additional lots/ dwelling houses, within the area rezoned. It would appear that the council initiated the rezoning of the subject site as part of its urban expansion program to accommodate more dwellings. And Mr Zawal was first approached by the council in 2002 about a rezoning. The LEP was gazetted in June 2010. 12The council officer's report states that: The subdivision (five lot) which has already been approved is higher in the catchment and there will be a controlled stormwater discharge point in the south-east of the subdivision at Carlton Street. In the current instance there is no such controlled discharge point and no downstream overland flow path. Further, the current subdivision is at a low point and would form the overland flow path for the rezoned catchment. It is considered that the most appropriate course is for a catchment stormwater management strategy to be developed as a high priority, and funds for this are available from section 94 monies held in restricted assets for stormwater management. These funds could also be used for some of the necessary works. This strategy would only address stormwater management for new development in the area that has been rezoned R2, and not the existing development in Willow Vale. 13The report states that a Councillor inspection took place and the Councillors queried the presence of fill material situated on the golf course near the southern boundary of the subject land. The report notes that this was the subject of a development consent for new golf holes and earth mounds. The conclusion of the report on 15 December 2010 was: The application is in accordance with Council's planning strategy for Willow Vale, and the proposed subdivision complies with the development standards. The land is not affected by environmental constraints, and utilities such as water, sewer and electricity can be extended to serve this subdivision as well as others in the area that has been rezoned R2. However, the issue of stormwater management is a major concern due to the lack of public infrastructure, which is simply a result of the previous rural zoning of the land. Having regard to the position that Council has expressed on many occasions in relation to stormwater and flooding issues the most appropriate course is considered to be the preparation of a catchment stormwater management strategy. Therefore, deferral of the development application is recommended. 14A further report was submitted to the Council on 25 May 2011 recommending deferred commencement consent and the council resolved that the matter be deferred pending a meeting to be held with the General Manager and the Director of Environment and Planning. A letter from the applicant to the council was included in the council report, wherein he stated that: In response to council's formal written invitation issued to us in December 2002 for rezoning to allow minimum 1,000 allotments on the site, we subsequently submitted a comprehensive application for rezoning in 2003, clearly identifying the purpose of our application as being for subdivision into five lots. Regardless of the eventual length of time taken for council to finalise the LEP process, it remains their responsibility to have measures in place to support the changes resulting from the LEP, including all aspects of infrastructure planning. ... In this instance, we believe that Council has failed to provide timely support of the basic processes required to facilitate their stated goal of infill development. It is also a reasonable expectation given councils formal invitation, that these processes would be carried out fully and within a reasonable timeframe. Council's suggestion that it is our responsibility to undertake a flood study for the entire catchment (as inferred) is unreasonable and is rejected. This is clearly beyond the scope required of a single subdivision forming part of a significantly larger catchment area. In any case, we cannot reasonably be expected to compensate for council's lack of planning for stormwater infrastructure. Council is requested to advise us of any interests they may hold in the acquisition of our property for their construction of stormwater infrastructure, given that (as council has stated in their business papers) the site forms the overland flow path for the rezoned area west of Carlton Street. 15The council officer made the following comments on the above: The property is undeveloped and for this reason it is the easiest option for duplication of stormwater infrastructure and formalise overland flow paths. This work will benefit both the development by ensuring no adverse impacts to future dwellings and indirectly benefit council by providing a sensible flow path for major storm events. Until applications were lodged for subdivision in the precinct, council was not fully aware of deficiencies in the drainage network. The report goes on to identify that in recognition of the deficiency in stormwater infrastructure, the approval for lot 151 required on-site detention. 16A notice of determination was issued to the applicant on 14 July 2011 with a deferred commencement as condition 1. The applicant objected to this condition, and the council agrees that this condition can now be deleted. I note that this deferred commencement condition stated: Considering the site acts as a natural overland flow path, the developer must provide documentation including plans, calculations and specifications to Council which investigates stormwater characteristics of the Willow Vale catchment area upstream of the site and the investigation is to include: (a) undertake a catchment analysis to investigate drainage characteristics, overland flow paths and existing constraints within the catchment ... assessment to consider the development density for the area, based on council zoning. (f) determine what other infrastructure is required to ensure that stormwater is suitably conveyed through the subject site (e.g. kerb and gutter, pipework, overland flow paths, road modifications, public utility adjustments etcetera. (g) estimate pipe and overland flow path sizes. (h) prepare concept plans for all the above. 17On behalf of the Council it was submitted that the deferred commencement condition is no longer necessary. The council adopted a Stormwater Management Plan for that part of the rezoned area in Willow Vale. 18The Stormwater Management Plan prepared by council officers, sets out 6 options, option 6 was recommended and this states that: An existing 600 diameter stormwater pipe is located within the easement over the 600 mm pipe from Willow Street to the reserve. This pipe has limited capacity and the path is obstructed by trees. A supplementary flow path is available across adjacent vacant land, lots 11 and 12. This additional and essential flow path could be provided as part of future development of lots 11 and 12 and should provision of an underground stormwater pipe to convey the minimum of a 1:5 year flow plus provision for the 1:100 year flow that could be contained within a shared driveway. 19The report of the Director of Infrastructure Services to the Council meeting of 28 September 2011, states that: When Council adopted the new shire-wide stormwater servicing plan on 9 November 2010 the then current s 94 stormwater plan was abolished. Currently there is $2,555,250 (which includes a $373,952 for East Bowral) in unspent and unallocated funds from the earlier s 94 stormwater management. Council could choose to allocate $450,000 of funding for option 6 from the old s 94 stormwater fund. The request to develop the stormwater management plan for Willow Vale has been completed at the request of the council's environmental assessment branch as it was seen as a necessary plan in dealing with the increased development occurring as a result of the rezoning of the land under WLEP 2010. A single coordinated plan was seen as being far more effective than requesting every individual applicant to prepare their own plans. Council's current shire-wide stormwater development servicing plan will need to be amended in time following construction of the works to reflect the value of new stormwater assets. At present unspent old stormwater s 94 funds are unallocated. Should $450,000 from old stormwater s 94 funds be allocated to this project then council's operating and IRS budget will be unaffected. 20The conclusion of the officer's report states that for all options, adequate provision for overland flow from Willow Street to the Highland Golf Course will be required. This can be achieved via an underground stormwater pipe system and a driveway to contain the 100 year flow. In conclusion: It is recommended that council adopt option 6, which provides an opportunity for stormwater harvesting whilst also conveying the additional run-off from the developed catchment. This option is cost effective compared to all other options as well as being a practical and environmentally beneficial solution. Figure 9 shows the proposed stormwater management plan with an overland flow path, an underground pipe through lots 11 and 12. 21At the council meeting on 28 September 2011, the motion that was carried is as follows: (1)That Council endorses option 6, which includes the construction of a formalised overland flow path at a maximum width of 6 m through the subject property and an underground stormwater pipe system through lots 11 and 12, No 29 Willow Street. (2)That option 6 be funded from old s 94 stormwater funds at an estimated cost of $450,000 (3)That the current stormwater development servicing plan be amended accordingly. (4)That the board of Highlands Golf Course be consulted regarding the proposed stormwater drainage and harvesting works. (5)That council staff consult with the owner of lots 11 and 12, No 29 Willow Street, regarding the construction of an overland flow path and underground stormwater pipes to safely convey stormwater through the subject land. (6)That the design and construction of this project be scheduled for 2012/2013 subject to development demands in the area. Assessment and Findings 22The issue for the Court to determine is the reasonableness of the conditions that the applicant is appealing against. The respondent does not contend that the application should be refused even though this would be open for me to do so. 23Having regard to the evidence to the Court, including that of the experts, the site inspection, and the bundle of documents it is clear that the conditions that Council seeks to impose require this applicant to provide easements and construct major infrastructure for the whole catchment to allow water from the northern boundary, Willow Street to safely be conveyed through the applicant's land by the requirement of a 600 diameter underground pipe below and the 6 m overland flow path. The Council also requires a 2 m easement to convey stormwater from the west through the property. 24The Council's bundle contained information concerning Council reports and resolutions on the Stormwater Management Plan for the catchment. It would appear the council initiated a rezoning for expansion of the Willow Vale neighbourhood with the knowledge that an additional eighty lots would be created in an area that had drainage infrastructure for a 40 ha minimum rural area. At the time of the gazettal for the rezoned area to residential, a stormwater management plan had not been prepared which could have informed a voluntary planning agreement or s 94 plan for the potential number of lots within the catchment to provide a basis for equitable contributions to be made for the required drainage infrastructure of the catchment. The rezoning being a benefit to a number of landowners it would have been fair and reasonable for contributions to the cost of the trunk drainage to serve the wider catchment area to be shared. 25The applicant submitted a development application in July 2010 and this was determined by the Council in July 2011 with a deferred commencement condition requiring the preparation of a stormwater catchment management plan. The deletion of the deferred commencement condition is not contested by the respondent on the basis that following approval of the subject subdivision the Council adopted its own Stormwater Management Plan in September 2011 and the hearing in this matter commenced 9 December 2011. 26From the documents provided to the Court, in particular the Council resolution, it is clear that Council accepts the need for a drainage pipe and overland flow path through the subject site to safely convey stormwater for the catchment. Indeed this is the essence of Council's first resolution, where it endorsed option 6 that includes "the construction of a formalised overland flow path at a maximum width of 6 m through the subject property and an underground stormwater pipe system through lots 11 and 12, No 29 Willow Street". Council further resolved that the option be funded through s 94 stormwater funds. And as a consequence and a mechanism to give effect to and to implement this option, Council also resolved that the Highlands Golf Course be consulted and that Council staff consult with the owners of lots 11 and 12, "regarding the construction of the overland flow part and underground stormwater pipes to safely convey stormwater through the subject land". 27In my assessment, the essence, intent and plain words of the Council's September 2011 resolution makes it clear that the 6 m overland flow path and underground pipe is necessary infrastructure to convey the catchment stormwater through the applicant's property. The series of points in the resolution leave little doubt in my mind that this is Council's responsibility to implement and fund. 28The s 94 plan that was previously in place was abolished when the Council adopted the Shire wide stormwater servicing plan of 9 November 2010. This was after the gazettal of the rezoning in June 2010 and before the adoption of the Stormwater Management Plan for the Willow Vale catchment. The resolution also provided that "2 - the preferred option 6 be funded from the old s 94 stormwater funds, at an estimated cost of $450,000 and " 3 - the Stormwater Development Servicing Plan be amended accordingly". 29I note that the costings in the adopted Stormwater Management Plan do not provide a breakdown to understand what has been included in the $450,000 but at the same time there is no indication that the works on private land were excluded from the estimates. Irrespective of this, it is unreasonable to expect this applicant to fully fund major drainage works to accommodate run-off from the broader catchment through the applicants land. 30Council officers' reports note that the 2 m north-south easement to the east of the subject site does not have the capacity for the catchment run-off and it is clear that the preferred option adopted includes conveying stormwater run-off for the catchment in a safe way through the subject site. The above 2 m easement with a much smaller diameter pipe appears not to be well maintained and according to the reports was only designed for a rural area and not designed for the increased density that the re-zoning now allows. From the site inspection to rely on this pipe alone, I agree with council's experts, would lead to future inundation problems. 31There is no question that the subject site will benefit by this overland flow path and underground pipe, to prevent inundation from upstream to the proposed lots to be created. I am also cognizant that the approval of the subdivision is for the purpose of dwelling houses to be constructed on each lot and these dwellings may be complying development and clearly the issue of the stormwater infrastructure for the catchment should be considered prior to the gazettal of a re-zoning. Clearly this opportunity has been lost and now must be addressed in this subdivision application. However, given the facts in this matter it is unreasonable and inequitable for the applicant to pay the full cost of infrastructure to convey catchment stormwater run-off through the subject land. 32The matter was re-opened on 16 January 2012 to allow the parties to consider my preliminary findings and make further submissions and suggest further conditions. The respondent provided amended conditions and for No 10 the amendment would require Council to conduct maintenance where it is the beneficiary of stormwater infrastructure. Council also proposes an amendment to 12(b) for the creation of an easement of 6m for the north to south overland flow path and 2 m to convey flows from the west. Council's proposed amendment to Condition 17 still requires the applicant to construct the overland flow path and underground pipe subject to design. 33It was submitted on behalf of the respondent that the Court of Appeal judgment in Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308, provides authority for conditions to be imposed and that " a modicum of commonsense " should be brought to their interpretation in the circumstances of the case and in the context surrounding the development. While I accept that conditions are not legally drafted, at the same time the conditions proposed by the council in this case do not pass the basic reasonableness test. I say this primarily on the basis that the cost of the works has not been apportioned to the potential development of the area rezoned and therefore the conditions are unfair and inequitable. The case of Botany Bay City Council v Saab found that the condition was fair and reasonable in the first instance and therefore then examined the wording of the condition that required it to be read in context with a modicum of common sense. The circumstances and facts in this case are not parallel, as it fails the overarching test of not being reasonable to place the burden of infrastructure required for the whole catchment to be borne by the applicant. 34On behalf of the applicant a 6 m easement in favor of the Council over the land to accommodate the overland flow path and undergrounding of the 600 pipe, with access for council to also maintain, was offered. The applicant also accepts the provision of a pit with the necessary easement over the golf course where it discharges to be constructed at the applicant's expense. 35In terms of the Newbury test, that conditions must fairly and reasonably relate to the permitted development, in the circumstances of this case in my opinion it is apparent that a reasonable planning authority would not impose a condition to require this applicant to pay for in effect major drainage works that are required because of the rezoning. The circumstances and the facts in this case are detailed above and these underpin my conclusion. 36While there is no doubt that the subject site will benefit from these works, the question of the cost of the detailed design, construction and maintenance should not be at the expense and total responsibility of the applicant. This would be unfair and inequitable. On behalf of the Respondent, on 16 January 2012, it was submitted that a cost sharing arrangement could be pursued through a voluntary agreement. 37While I accept the submission made on behalf of the respondent that the council cannot be forced to carry out the necessary major infrastructure works for water from the catchment to be conveyed through the subject site, at the same time, it is unreasonable for the Council to impose conditions on the applicant to pay the cost of construction and maintenance of these works for the catchment. 38It is regrettable that the question of stormwater infrastructure was not addressed at the appropriate stage of the planning process. Nonetheless, having made this comment action was later taken and the Council, on the recommendation of its officers, resolved to adopt option 6 and the resolution also provides authority for the necessary action to implement same as follows: ...which includes the construction of a formalized overland flow path at a maximum width of six metres through the subject property and an underground stormwater pipe system through Lots 11 and 12. Section 7 DP792, No 29 Willow street. 39In my assessment it is an unreasonable burden to place on one landowner to pay for and maintain the infrastructure as required by conditions 17 and 10 and the conditions should be amended and this position is further strengthened by Council's resolution of 28 September 2011. It goes without saying that ideally this is a cost that should be shared and landowners who reap the benefit when land is rezoned and redeveloped. This is consistent with the object of the Environmental Planning and Assessment Act for orderly and economic development. 40It was submitted on behalf of the applicant that conditions 10, 11 and 17 do not relate to the permissible development of the subject land, but rather relate to the permissible development potential of the catchment. And as such, the conditions are unreasonable and do not meet the Newbury test. 41I have concluded that this consent is capable of amended conditions that recognizes the principle of cost sharing even though this may not be ideal, it provides the opportunity to partially address same in a reasonable way and also applying the principle of a modicum of common sense in the interpretation of the amended conditions. While the subject land will benefit by the overland flow path and 600 pipe underground and the 2 m easement on the western boundary, at the same time this infrastructure is necessary to convey the external overland flows through the property and not solely for the benefit of the subject lot. As such, the applicant should not bear the total cost of construction and maintenance of overland flow paths, pipes and maintenance for the benefit of the broader catchment area outside the subject property. 42I have determined the appeal should be upheld and the conditions I have amended in Annexure A to reflect some cost sharing. In particular at the applicant's expense the 6 m easement to be created over the applicant's land from Willow Street to facilitate council to implement its Stormwater Management Plan and maintain this infrastructure. Apportioning the cost of the 6 m overland flowpath and pipe is not possible I recognize the benefit to the applicant and I have determined it is fair and reasonable that the applicant pay the cost of designing and constructing the stormwater infrastructure to convey catchment stormwater from the west through his property via an easement. The applicant is also responsible to pay the cost of the easement to be obtained over the golf course and the construction of the pit and works to safely discharge water downstream. 43The wording of certain conditions has also been changed to reflect my fundamental findings on the principle of fair and reasonable. 44Accordingly, based on my assessment above of the evidence before the Court the appeal is upheld. The conditions of consent are amended in accordance with my findings above. 45The formal orders of the court are: (1)The appeal is upheld. (2)The development application submitted to Wingecarribee Shire Council for a five lot subdivision of lots 11 and 12 Willow Street, Willow Vale is approved, subject to the amended conditions in Annexure A. (3)The exhibits are returned to the parties except for the plan of subdivision, exhibit B. J S Murrell Commissioner of the Court ATTACHMENT 1 ATTACHMENT 2 ANNEXURE A - CONDITIONS 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. Decision last updated: 30 January 2012