Land and Environment Court New South Wales Medium Neutral Citation: Universal Property Group v Blacktown City Council [2014] NSWLEC 1105 Hearing dates: 4 February 2014, 26-27 May 2014 Decision date: 11 June 2014 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld subject to conditions see [93] Catchwords: DEVELOPMENT APPLICATION: Medium density housing; tree loss; drainage and flooding; public benefit Legislation Cited: Environmental Planning and Assessment Act 1979 Blacktown Local Environmental Plan 1988 Cases Cited: Hill v Blacktown City Council [2007] NSWLEC 401 Hill v Blacktown City Council and the Minister Administering the EPA Act 1979, Pluijmers v Blacktown City Council and the Minister Administering the EPA Act 1979 [2008] NSWLEC 203 Category: Principal judgment Parties: Universal Property Group (Applicant) Blacktown City Council (Respondent) Representation: Applicant: Mr M Staunton (Barrister) Respondent: Mr J Lazarus (Barrister) Applicant: Hunt & Hunt Respondent: Bartier Perry File Number(s): 10853 of 2013 Judgment 1COMMISSIONER: The applicant appeals Blacktown City Council's deemed refusal of Development Application DA 13/1735 for the proposed construction of 11 dwellings and associated works in a medium density development on Lot E in DP 29979, otherwise known as 91 Newton Road, Blacktown. 2The appeal is made pursuant to s 97(1)(b) of the Environmental Planning and Assessment Act 1979 (the Act). The proposal, site and locality 3The proposal is for 11 three to five bedroom townhouses, with garages, visitor parking spaces, landscaping, driveways, common open space and a single access point to and from Newton Road. 4The site is an irregular shape of 3952m2. There is a wide access handle off Newton Road and the site opens to a large rectangular block between residential properties to the south, east and west, and a community facility with open space to the north. The surrounding residential area is characterised primarily by older single storey fibro dwellings on large blocks with a mixture of newer single storey dwellings and townhouses. The nearest cross-streets are Meroo Street to the east and Walters Road to the west. 5There is single storey dwelling with associated outbuildings on 91 Newton Road. The remainder of the site is heavily to moderately vegetated with a mixture of native/ remnant trees and an overgrown garden of a range of exotic trees and shrubs. There are some open areas of grass and weeds of a mixture of species. 6The land slopes gently to the east to an overland flow path on the eastern portion of the site and along the eastern boundary. This flow path is part of the Heart Place trunk drainage system, which arises as a tributary of Breakfast Creek. The land is currently zoned for residential purposes and is mapped by council as comprising part low, part medium and part no flood risk precincts. Issues and progress of the matter 7The council originally raised six contentions. During the period leading up to the first hearing, a number of contentions relating to visitor parking (Contention2), waste collection (Contention 3), and most building matters (Contention 6) have been agreed by the relevant experts as capable of being dealt with by way of conditions of consent (should the proposal be approved). 8The issues remaining between the parties are: * The proposed rezoning of the site and council's plan to construct a drainage basin and other drainage infrastructure on the site; land acquisition costs (Contention 1); * Unacceptable loss of trees (Contention 4); * Stormwater, drainage engineering and flooding issues including safety of escape routes (Contention 5); and * Architectural and building issues arising out of any changes to levels as a consequence of changes to drainage plans (remaining elements of Contention 6). 9The hearing commenced on site on 4 February 2014. A long-term local resident addressed the parties in regards to local flooding and drainage issues and potential privacy issues arising from the proposal. 10Observations were made on the adequacy of the original tree assessment report and the absence of an ecological assessment given the site could potentially support Cumberland Plain Woodland, a Critically Endangered Ecological Community. In anticipation of this, the applicant engaged an ecologist, Mr Dominic Fanning, to be present. 11During the course of the proceedings, it was determined that for a number of reasons, in particular the need for further flood modelling, the hearing be adjourned to a later date. 12The hearing resumed on 26 May 2014. The applicant tendered amended plans including site and architectural plans, landscape plans, and stormwater and drainage plans. New reports were prepared by Mr Guy Paroissien, arborist, Mr Dominic Fanning, ecologist, and Mr Robert Varga, traffic and parking engineer. The town planners, Mr Paul Grech for the applicant and Mr Glenn Apps for the council, and drainage engineers Dr Daniel Martens for the applicant and Mr Tony Merrilees for the council, prepared supplementary joint reports. Refinement of the issues 13Mr Fanning's Statement of Evidence - Ecological Issues dated May 2014 concludes that the vegetation on the site is not Cumberland Plain Woodland, and even if it were, he states its isolation, size, and poor condition is such that its loss would not have a significant effect on the wider status of Cumberland Plain Woodland (in accordance with s 5A of the Act). He agrees with Mr Paroissien, that notwithstanding the impact of psyllids on the decline of Eucalyptus moluccana (Grey Box), the landscape plan should incorporate some of these trees. Mr Paroissien also recommends inclusion of a condition of consent requiring a revised landscape plan incorporating locally native trees and shrubs in order to provide suitable habit for small birds that feed on the psyllids. 14The parties agree that contention (4) on unacceptable tree loss has been resolved. The only outstanding issue is the imposition of a condition to give effect to Mr Paroissien's recommendation - this is discussed elsewhere in this judgment. 15The architectural and building issues remaining from contention (6) have been resolved through agreed condition 6.2.8. This requires amended architectural plans to meet all specified items. 16A number of particulars in contention (5) have generally been resolved through remodelling and or by appropriate conditions. These include 5(a)-5(f) general drainage matters; 5(g) flood model files; and 5(k) pedestrian access along the driveway during a 1:100 year flood. The latter, essential issue is to be resolved by elevating the driveway to reduce the velocity x depth product to <0.4m2/s and thus enable safe pedestrian access. 17The remaining contentions are: * The proposed rezoning of the site and council's plan to construct a drainage basin and other drainage infrastructure on the site; land acquisition costs (Contentions 1 and 5(a)); * Drainage issues - flood impacts on adjoining land, blockage factors under houses, hydraulic hazard in the common open space and other issues raised during joint conferencing (Contention 5(h)(i)(j)). Assessment framework 18The site is zoned Residential 2(a) in Blacktown Local Environmental Plan 1988 (BLEP). The proposal is permissible with consent. 19Under Draft Blacktown Local Environmental Plan 2013 (Draft BLEP 2013) the site is proposed to be zoned part R2 Low Density Residential and part RE1 - Public Recreation, or possibly all RE1. The proposed 'multi dwelling housing' development would be prohibited. The site as a potential council drainage reserve 20The fundamental issue in this matter is council's contention that it requires the site for the construction of a drainage basin. The identification of the site as part of a future drainage basin arises from the Final Report of the Breakfast Creek: Heart Place Branch Trunk Drainage Investigation prepared by Perrens Consultants Pty Ltd (the Perrens Report) prepared for Blacktown City Council and published in 2004. 21The remaining contentions are closely linked and are considered together. The Perrens report 22Blacktown City Council commissioned this investigation in order to: establish the extent and severity of flooding, flood hazard and damages; assess alternative flood mitigation measures; evaluate the cost and cost-effectiveness of the options; and identify a prioritised urban flood mitigation program. This catchment has historically experienced regular flooding. 23The Heart Place trunk drainage system is a tributary of Breakfast Creek and is essentially a piped drainage system that also transfers overland flows. The drainage system traverses the eastern portion of the site and extends from the north to the south of Newton Road. 24The Perrens Report identifies the length of the easement either side of Newton Road as one of eight areas designated as being of high hazard during a 100 year ARI [Average Recurrence Interval] event. The designation is based on criteria in the NSW Floodplain Management Manual 2001 based on depth and velocity. 25As part of its preferred Flood Mitigation Scheme, the report recommends, amongst other things, the construction of three major detention basins along the main drainage easement, Basins 1, 2 and 4 (Basin 3 was considered but not recommended for construction). Basin 4 was proposed to be located on vacant land between Newton Road and Kildare Road to the north. The report notes that" "Some of this vacant land is privately owned and therefore the construction of Basin 4 would be contingent upon Council acquiring this land'. Figure 6.1 in the report shows the proposed locations of the detention basins; the southern part of Basin 4 occupies the north-eastern corner of the site with the majority of it extending to the north of the site. 26The report proposes that the basins would operate in combination with the result of reducing overland flows and therefore reduced flooding of properties along the trunk drain. The report also indicates the cost of property acquisition would represent a large percentage of the overall cost of these basins. 27Section 8.2 of the Perrens Report suggests recommended planning measures. At 8.2.2 the report recommends the DCP as the appropriate mechanism for specifying detailed controls and suggests an amendment of Section 8.0 Part A of BDCP 1992. The report also includes examples of matrices of controls for various types of development in high, medium, and low flood risk precincts. These levels of controls were not subsequently incorporated into Section 8 - Development on Flood Prone Land, Part A BDCP 2006. 28To date, none of the proposed drainage basins have been constructed. Draft BLEP 2013 29On 9 December 2013, the council held an Extraordinary Meeting to consider submissions made to council following exhibition of Draft BLEP 2013, and its ultimate adoption. Minutes from that meeting record that Draft BLEP 2013 was exhibited from 23 January to 19 April 2013. Amongst other things, the Draft LEP proposes a number of re-zonings as one means of implementing a review of strategic directions undertaken by council officers. 30Item 2h of the Minutes states: h. However, those residents affected by the future BLEP 2013 acquisition plans have clearly indicated that they strongly oppose this approach, despite the fact that Council's purchase of the affected properties will be fairly compensated for the value of the property and its improvements based on the underlying zoning and not the acquisition purpose, as required by legislation. The value of the land and its improvements is determined by having regard to the Land Acquisition (Just Terms Compensation) Act 1991 which provides that compensation will be the market value of the land on the date of acquisition disregarding the public purpose zoning. 31Item 2k records that in response to community opposition the revised growth and acquisition strategy will focus on: (i) Urban Renewal Precincts (URPs); (ii) public infrastructure (such as drainage and open space) to support the first five years of growth is identified and rezoned; (iii) upzoning of URPs;(iv) future stages of 5 year upzonings; and (v) properties that remain affected by open spaces and similar for the first 5 years of upzonings are proposed to be supported by a program of immediate acquisition if requested by the owners. A substantial ($20 million) funding source is proposed to be established for these immediate acquisitions. 32The Minutes identify 12 properties (including 2 part properties) on the corner of Meroo Street and Newton Road proposed to be zoned for a public purpose for a drainage detention basin. 33Council resolved to adopt Draft BLEP 2013 subject to 216 amendments/ recommended changes, which arose from submissions. 34Resolution 13 outlines the means by which the council proposes to fund acquisition of properties affected by planned RE1 re-zoning. It states: Those properties affected by RE1 Public Recreation Zone under Blacktown Local Environmental Plan 2013 be supported by a program of immediate acquisition by Council if requested by the owner. To give effect to these acquisitions Council [will?] establish a $20 million funding source that will finance the immediate acquisitions. Under existing legislation, Council is permitted to borrow between Contributions Plans to provide early funding for new Contributions Plans. However, this cannot happen until the new Plan is adopted by Council. Therefore, during the period until the new Section 94 Contributions Plans are being prepared, should Council need to acquire any properties, the cost will be initially funded from Council's internally restricted Land Projects Development Reserve, and any amounts initially funded will be subsequently reimbursed from Section 94 funds once the new Contribution Plans have been adopted. 35Attachment 8 in the Minutes outlines the 216 recommended changes to Draft BLEP 2013. Of relevance to the site and this matter, Recommendation 12 states in part: The properties generally fronting Meroo Street, Newton Road and Walters Road that are required for drainage and flood mitigation purposes continue to be zoned as RE1 Public Recreation. The remaining properties that were proposed as RE1 Public Recreation be zoned R2 Low Density Residential and be removed from the Land Reservation Acquisition Map. 36The site is located within the Blacktown South West Precinct. In an addendum relating to an objection to rezoning of properties on Swinson and Flushcombe Roads Blacktown, within the same precinct but some distance from the site, the section of zoning map 'as exhibited' shows the north-western portion of the site as R2 and the eastern portion as RE1. The RE1 zone creates a north-south open space corridor between residential zones. 37The report to council on 9 December 2013 shows the zoning map 'now proposed' reduces the overall extent of the RE1 zone but includes the whole of the site. According to council, this change reflects public submissions, a change in strategic focus, and subsequent recommendations from council officers. During oral evidence, Mr Merrilees, council's Senior Engineer (Drainage) Developments stated that retaining the western portion of the site as R2 would create a land-locked lot with access issues and it was considered a better planning outcome to include the whole of the site as RE1. 38Draft BLEP 2013 and documentation as required by (now repealed) s 68(4) of the Act was forwarded to the Department of Planning and Infrastructure on 31 March 2014. Expert opinion 39During the hearing in February 2014, the planners agreed that Draft BLEP was not imminent but disagreed as to its certainty. At the resumed hearing in May, following advice from relevant council and departmental officers, the planners agree that Draft BLEP is not imminent or certain. It was also agreed that while council officers are of the view that the amendments to Draft BLEP will not require it to be re-exhibited, it is still open for the Department of Planning and Infrastructure to require re-exhibition. In their first joint report the planners agreed that there is no draft DCP that would accompany draft BLEP 2013. 40Mr Apps relies on the advice of council's engineers that the site is required for drainage infrastructure. He acknowledges he is not a valuer but considers that any development approval would increase the value of the land and in the event that the land was rezoned and acquired, it would increase costs to council. To this end, this would not be in the public interest. 41Mr Grech considers the current planning controls permit the proposal and any consent would simply confirm his view that the land is capable of development. He maintains that council has not produced any definitive plan, documentation or costing for any proposed drainage basin on the site. In the first joint report, Mr Grech notes that the site is shown on council's 'Probability of Flood Extents' plan as being part Low Flood Risk, part Medium Flood Risk, and part no flood risk. He states that the flood study submitted with the DA was not questioned during the assessment of the DA but was subsequently added to the amended Statement of Facts and Contentions. 42In regards to whether the site is necessary for a detention basin, Mr Merrilees is firmly of the opinion that the site is required to ensure that the ultimate design of the basin is not compromised. 43In what he says was a response to the proposed re-zoning, Mr Merrilees prepared a preliminary design for the basin showing the proposed locations of pipes, control pit at the lowest point, a weir and embankments. The capacity of the basin is based on the Perrens report. His design locates the drainage basin on the corner of Meroo Street and Newton Road and includes the eastern portion of the site. While he accepts this is not as shown in the Perrens Report, in his opinion it accords with current council views that the drainage basin would also function as public open space. Locating it on the corner of two roads would enable passive surveillance, and the shape and slope of the embankments would enable easy escape in the event of a flood. 44Mr Merrilees agreed that implementation of the Perrens Report would require detailed planning and costing across the catchment. Council has not moved any resolution to acquire the site as BLEP 2013 is yet to be gazetted. He also agreed that no s 94 plan has been developed to enable acquisition for drainage purposes nor has any proposal been put forward for public consultation. To date, the process has been limited to internal investigations and discussions. 45In the lead up to the first hearing, Mr Merrilees prepared a plan illustrating a possible compromise position that retains an access handle from Newton Road along the eastern boundary of the adjoining property to the west. This would accommodate a driveway to provide access to the rear western portion of the site. The eastern portion is shown as the area for the drainage basin. This plan is attached to the first joint report of the planners. 46Dr Martens read the Perrens Report. He maintains that there are other suitable locations for detention basins elsewhere along the drainage channel and that the site is not essential for the construction of the proposed basin. If it is constructed there are other design options that could be employed to contain the basin on parts of the site not to be built upon. Dr Martens also opines that the Perrens report is based on data collected over ten years ago and that other council policies, such as the requirement for on-site detention systems, may have reduced the incidence or extent of overland flows. 47Should a drainage basin, in some form, be constructed on the corner of Newton Road and Meroo Street, the planners discussed the potential for the proposed private open space on the eastern side of proposed units 1, 2 and 3 to be incorporated into the area designated as common open space as a means of reducing risks arising from any flooding. The proposition that the common open space might be acquired at some stage for incorporation into the public open space provided by a future drainage basin was also considered. 48Mr Apps considers that common open space is to provide amenity for the residents but agrees it essentially achieves the same purpose as public open space. He also agreed that in some circumstances and on the merits, council may not press the requirement for common open space if the development site adjoins public open space, however, if that were the case, council may also consider increasing the area of private open space for each unit. 49Mr Grech considers the proposal, as it is, provides more common open space than is required and the areas of private open space comply with council's controls. He notes that eventual incorporation into public open space may be a better outcome as he has observed a reluctance by owners to maintain common open space. Mr Grech stated that if the eastern portion was acquired, there should be some means of direct access from the site into any future public open space. 50As stated above, the hearing was adjourned, in part, to enable further flood modelling. The March 2014 flood study prepared by Martens & Associates relies on the relevant Australian Standard and NSW departmental guidelines as well as BCC's Drainage Design Manual 2005 and other council documents. The model incorporates data/criteria requested by council. In addition, the model assumes:15% blockage for the underside of the driveway, visitor parking and garages within the flood affected area; 50% blockage for the underside of units 1-4; and 100% blockage for building structures of units 5-12. 51The results of the flood study show minor increases in flood heights on parts of adjoining and nearby properties at 93 Newton Road and 13 Walters Road of 0-24mm, and at 20-22 Meroo Street of 0-28mm with a small area up to 31mm. Vehicle and safe pedestrian access on the main driveway is available at all times during a 1 in 100 year ARI flood. There is sufficient and appropriate freeboard provided for garage floors and habitable floor levels of relevant units. 52Dr Martens states the flood study shows that while the shape of the flood wave may be marginally altered in a few locations, there are no significant detrimental impacts on adjoining properties and the flood liability of those properties remains the same. In his view the 50% blockage factor under houses is very conservative and more than reasonable. Similarly, the 15% blockage factor for under the driveway is acceptable as the potential for debris collection is low. 53In regards to the hydraulic hazard in the proposed extended area of common open space, Dr Martens sees this as consistent with the practice of many councils to combine detention basins with recreational uses. He considers the ease of egress to be better and over a shorter distance from the area of common open space than from larger public recreation areas. 54Mr Merrilees reluctantly accepts that a blockage factor of 50% under units 1-4 is acceptable, although his preferred position is 100% given that people may choose to block the underside of their dwellings or store things under them. He also considers a blockage factor of 50% is more appropriate for under the driveway as debris could be trapped. In his view, the higher blockage factor would likely increase the impact on adjoining properties. In his opinion, anything in excess of a 20mm increase on adjoining properties is significant and unacceptable. Mr Merrilees maintains that the development be amended and new modelling undertaken to ensure that any impacts on adjoining properties are appropriately reduced. 55Mr Merrilees also considers the flood hazard in the area of common open space is unacceptable as the velocity x depth product is >0.4m2. As this area is likely to be frequented by children he considers the risk to be too great. He relies on the Perrens Report that considers a 15-minute storm event is critical for a 100 year ARI flood event. In his view, this is a short time to enable safe egress. He maintains that the indicative design of the drainage basin decreases the velocity of water moving through it and allows for easy escape of anyone who may be using the area. 56Dr Martens disagrees with the 15-minute time frame and considers up to 90 minutes to be more realistic. He also states that it is unlikely that anyone would remain outside for more than a few minutes in any downpour of sufficient intensity to lead to flooding. 57When questioned by Mr Staunton, Mr Merrilees agreed that the open space in the recently approved development at 20-22 Meroo Street is similarly affected by potential flooding and the area is identified with council's 'standard floodway warning sign'. Submissions 58Mr Lazarus for the council contends that a substantial portion of the site is immediately needed for a public purpose and that approving the development is contrary to the public interest in that it will substantially increase the cost of acquisition. He cites the discussions recorded in the minutes of the extraordinary council meeting held in regards to Draft BLEP 2013 and the proposed rezoning. Mr Lazarus argues these represent the latest and best strategic plans for the LGA, not only for growth, but also specifically for managing drainage. He considers the 5-year time period mentioned in item 2k supports the immediacy of the need. The absence of a new s 94 contributions plan is not important at this stage given the other means by which council may fund acquisitions. 59While nothing precludes council from exercising its powers of acquisition, Mr Lazarus submits it is self-evident that a development consent must affect the market value of the land and thus increase its price, and therefore cost to the community. He maintains that were the development to be approved, using either a 'comparable sales' approach or a 'hypothetical development' model in any subsequent valuation of the land, the approval will have increased the value by not an insignificant amount. Mr Lazarus contents that this is contrary to the public interest and s 79C(1)(e) of the Act. 60Mr Lazarus cites Jagot J in Hill v Blacktown City Council [2007] NSWLEC 401. This matter concerned the imposition of a condition of consent requiring the landowner to enter into a deed of release with the Department of Planning to prohibit any claim for compensation for works associated with the development consent to the extent where the works increase the value of the land above its present value. The land, the subject of the Hill appeal was subject to State Environmental Planning Policy (Sydney Growth Centres) 2006. At [46] Her Honour states in part: "...by reference to s 79C(1)(a)(i) or (e)....If the likely additional cost is a relevant consideration, then it is a potentially determinative consideration". Mr Lazarus maintains the general proposition was supported by Pain J in subsequent proceedings Hill v Blacktown City Council and the Minister Administering the EPA Act 1979, Pluijmers v Blacktown City Council and the Minister Administering the EPA Act 1979 [2008] NSWLEC 203. 61Mr Lazarus contends that the requirement to prepare a new LEP under the Standard Instrument, which commenced in 2006, has enabled the consideration of rezoning. This is something that has taken many years. He rejects Mr Staunton's assertions and maintains that Mr Merrilees was awaiting more certainty of any changes to zoning before preparing detailed designs and costings for the implementation of the Perrens report. He accepts that Mr Merrilees' plan is at best preliminary but argues it is consistent with the Perrens report and council's strategic views expressed in the December 2013 meeting. While Mr Merrilees' design relocates the proposed drainage basin to the southeast, the reasons for doing this were clearly articulated and would provide a better planning outcome. 62In regards to the Perrens report and therefore the basis for the detention basin, Mr Lazarus maintains that this is a detailed report, by a pre-eminent expert, which took many years and is therefore the only detailed analysis of feasible locations of drainage basins. In his view it would be unreasonable to require a new study. He maintains that this study was necessary because of the high incidence of local flooding and indeed, the report identifies the site as being a 'high hazard area'. Mr Lazarus argues that the report clearly demonstrates the benefits of having the three proposed basins operating in combination. Given the detail contained in it, Mr Lazarus contends the Court should place significant weight on the Perrens Report and the role of the site in enabling its implementation. 63Mr Staunton for the applicant argues that the proposed rezoning of the site from part RE1 and part R2 to all RE1 came about as part of a submission from an unrelated site in Flushcombe Road. The change was made internally without any consultation with land owners or approval from council. He maintains that council has had at least 10 years to acquire the land identified in the Perrens report, and thus there is no demonstrated urgency in constructing the detention basin. He submits that any urgency, including the production of plans, has come about because of these proceedings in response to internally raised questions about the status of any proposed drainage works on the site. Mr Staunton considers that item 2k in council's minutes prioritises growth areas and areas to be 'up-zoned' as a consequence, something not applicable to the site. 64Mr Staunton contends that the Hill cases related to a statutory scheme for a growth area and the need for concurrence, issues not relevant to this matter. He also submits that no valuation evidence has been called. In any event, he maintains it is agreed that council can acquire the land if it wants to. 65Mr Staunton submits that Dr Martens is also pre-eminent in his field and has conducted a more extensive and current review of alternative locations for detention basins than Mr Merrilees. He maintains that the relocation of the basin illustrates that its ultimate location is flexible and not fixed. 66In regards to the flood risk and potential impacts on adjoining land, Mr Lazarus adopts Mr Merrilees' more cautious approach to the blockage factor under the driveway as well as Mr Merrilees' concerns about the flood hazard on areas of common open space and that signage, by itself, is not an appropriate measure. In his submission, this is not a matter that can be conditioned and can only be resolved by relocating common open space away from hight hydraulic hazard areas. 67Mr Staunton maintains that the factors used in Dr Martens' modelling are consistent with the relevant guidelines and are more conservative than Dr Martens would ordinarily have applied given the nature of the surrounding catchment. He submits there is no qualitative assessment by council of the impacts of the minor increases in water levels on adjoining properties and equally no recognition of the substantial benefits and reductions achieved elsewhere on the site. In regards to the blockage factor for the driveway, this is something not raised by council in its contentions prepared in March and after the adjournment of the hearing. 68Mr Staunton contends there are many safeguards proposed in the conditions of consent including bars beneath the elevated sections of units 1-4 to prevent storage as well as Restrictions as to User and Positive Covenants for a range of measures that take account of the overland flow path, council's drainage easement and inspection and maintenance of elevated structures. He presses the appropriate use of warning signs as endorsed by council in a recent nearby development. Findings 69Section 79C(1)(a)(ii) of the Act requires me to consider any proposed environmental planning instrument that has been the subject of public consultation and has been notified to the consent authority. Section 79C(1)(e) requires consideration of the public interest. 70The planners agree that Draft BLEP 2103 is neither imminent nor certain and is in a 'queue' with other draft instruments. Given the number of recommended amendments, there is also uncertainty as to whether the Draft LEP will need to be re-exhibited. Clearly, if it is re-exhibited, the time until gazettal will be lengthy. 71The public interest was not raised as a separate contention but underlies the council's first contention and submissions regarding council's need of the site for the construction of a drainage basin. Although I am satisfied of council's reasoning for the proposed re-zoning of at least part of the applicant's land, the minutes of the December 2013 meeting indicate there was considerable opposition from similarly potentially affected land owners across the LGA and there is more consultation to be undertaken. 72It is common ground that it is open for the council to seek to acquire the land. Section 54(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (LA-JTC Act) states: (1) The amount of compensation to which a person is entitled under this Part is such amount as, having regard to all relevant matters under this Part, will justly compensate the person for the acquisition of the land. 73Possible acquisition is contemplated in the minutes of council's meeting of December 2013 as well as in the Perrens Report. 74In determining the amount of compensation, amongst other things, s 55(a) requires regard must be had to the market value of the land on the date of its acquisition. 75Section 56(1) states (relevantly): (1) In this Act: market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid)): (a) any increase or decrease in the value of land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, and 76Item 2h in council's minutes reiterates this:... the value of the property and its improvements based on the underlying zoning and not the acquisition purpose.... 77While I agree in principle that the creation of public reserves and the management of stormwater are in the public interest, it is hard to ignore the proposition that if the council was intent on acquiring the site as a portion of the land identified 10 years ago as being necessary for a drainage basin, it has had ample opportunity to do so. I also note that apart from the applicant's property, the design of the proposed drainage basin would occupy all or part of 10 or 11 other lots, most of which contain dwellings and other structures. 78Council's minutes of the December 2013 meeting indicate there is a range of means by which council may fund land acquisition. While mention was made during the hearing of a '$20m funding source' and a new s 94 contributions plan, Resolution 13 (at [34]) indicates that the $20m fund is yet to be established and the new s 94 plan can't be made until the new LEP is made. It appears that any acquisition would require a circuitous financial pathway and is unlikely to be immediate or imminent. 79It is also hard to ignore the fact that none of the three potential drainage basins identified in the Perrens Report have been constructed. Apart from Mr Merrilees' preliminary design for the detention basin in question, no evidence was adduced that council has engaged in any further detailed preparatory work across this drainage system to further advance the implementation of the measures identified in the Perrens Report. Although I understand the rationale for relocating the basin to the corner of Newton Road and Meroo Street, I agree with the applicant that it demonstrates the location is somewhat flexible. On Dr Martens' evidence, there are other engineering options that would enable the construction of the basin in some form that would not require the whole of the applicant's site. That is, the use of the site for residential purposes does not preclude the construction of a drainage basin in some form. The planners agreed that should it be required, the eastern portion of the site, proposed as common open space, could be incorporated into future public open space should the basin be constructed. 80Therefore, I agree with Mr Staunton that there has been no demonstrated urgency in acquiring the land and that having purchased the land, his client has proceeded to apply for a development permissible with consent under the current zoning. 81For these reasons I find that the appeal cannot be dismissed on the basis of contention 1. 82Notwithstanding the considerable level of agreement between the drainage experts on most of the particulars raised in contention 5, the remaining areas of disagreement concern the possible impacts of increased flood levels on adjoining properties as a consequence of the proposal and criteria used in flood modelling. In addition, Mr Merrilees is also concerned about the safety of anyone who may be using the common open space in the event of a major flood. 83After careful consideration of the generally agreed without prejudice conditions of consent in Exhibit Q, and while I acknowledge there is an elevated risk to occupants of units 1-4 and to anyone using the common open space, I am satisfied that in the event of a 1 in 100 year flood event, the detailed drainage requirements specified in condition 6.2.3 and the associated amendments to the architectural plans detailed in condition 6.2.8 provide for the safe access, use and occupation of the site for residential purposes. These conditions include the need to provide flood warning signs in potentially affected areas of common and private open space and the development of a Flood Management Plan to be prepared and permanently affixed to each unit. Council has a standard flood warning sign and the uncontested evidence is that these have been approved for nearby developments. 84I am also satisfied that the proposal includes compliant areas of private open space so that the residents are not reliant on potentially flood affected common open space. I agree with Dr Martens that it is highly unlikely that anyone would remain outside in the weather conditions that would lead to a major flood event. 85Condition 10.6.12 requires a positive covenant that the openings under the driveway and Units 1-4 shall not be used for storage and that a report of inspections be provided to council on an annual basis. Given this condition, the proposed bars and lockable access under the driveway, and location of the driveway and its construction as an elevated driveway above a substantial width of concrete pavement, the propensity for blockage appears low and therefore Dr Martens' blockage factor of 15% does not seem unreasonable. 86While this site like many others in the vicinity is in a flood risk zone, I am satisfied to the extent required by s 79C that subject to the imposition of the proposed detailed conditions, consent can be granted to this development. Conditions 87As indicated above, following subsequent reports, joint conferencing and matters arising during the hearing, the parties have amended some conditions and agreed on most conditions. There are a number of conditions requiring determination by the Court. I have amended the marked up version of the conditions provided to the Court by the applicant on 26 May 2014. These conditions are included as Annexure A to this judgment. Agreed changes have been made to the numbering of some conditions. 88In regards to whether or not Eucalyptus moluccana should be part of the species mix, I accept the recommendation of Mr Paroissien and Mr Fanning that limited numbers of this species should be planted along with understorey plantings that include locally native shrubs and small trees that may provide habitat for the predators of psyllid insects. Therefore, the applicant's version of condition 4.3.1 is preferred. 89The main contest between the parties is whether the revised Drainage Plans (condition 6.2.3) and MUSIC modelling (condition 6.2.5) should be provided to the Principal Certifying Authority as requested by the applicant or to Council's Manager Asset Design Services as requested by council. 90Mr Staunton contends that the Certifier has a statutory obligation to ensure there is compliance with the conditions and to provide the final plans to the council. To that end, in his view, providing them to the council is an unnecessary additional step. Mr Lazarus supports Mr Merrilees' opinion that council has the expertise and has had a long involvement with the process and ought to have a continuing role. 91Given the flooding and drainage issues that naturally beset the Blacktown LGA, and the level of assessment to date which has given rise to the detailed conditions, I am satisfied that council should continue to have a role in assessing the necessary plans and models. Therefore, the council's version of these conditions is preferred, however, the words "but are not limited to" shown in council's original without prejudice conditions have been deleted. The issues are therefore limited to those specified in the conditions. 92The only remaining condition in contention is condition 6.2.4 requiring revised flood modelling to allow for a different roughness co-efficient and increased blockage factors under units 1-4, the driveway and fences. On the basis of the evidence adduced in court and the details required in condition 6.2.3 I propose to delete this condition. Orders 93The Orders of the Court are: (1)The appeal is upheld. (2)Development application DA 13/1735 for the construction of a medium density housing development consisting of 11 dwellings and associated works including internal driveway, common open space and landscaping works on Lot E in DP 29979 being 91 Newton Road, Blacktown is approved subject to the conditions of consent in Annexure A. (3)All exhibits except 1, A, E, and Q are returned. ____________________________ Judy Fakes Commissioner of the Court Annexure A 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: 11 June 2014