Land and Environment Court New South Wales Medium Neutral Citation: Bisso & Anor v Fairfield City Council [2016] NSWLEC 1007 Hearing dates: 16 December 2015 Date of orders: 05 January 2016 Decision date: 05 January 2016 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION: dual occupancy, whether drainage easement should be required Legislation Cited: Fairfield Local Environmental Plan 2013; Land and Environment Court Act 1979 Texts Cited: Fairfield City Wide Development Control Plan 2013 Category: Principal judgment Parties: Nahir and Sally Bisso (Applicants) Fairfield City Council (Respondent) Representation: Counsel: Mr N Eastman (Applicants) Solicitors: David Legal (Applicant) Mr A Seton Marsdens Law Group (Respondent) File Number(s): 10746 of 2015 Judgment 1. Mr Bisso lodged Development Application DA No 5.1/2014 on 6 January 2014 with Fairfield City Council seeking consent for a dual occupancy development at 565 The Horsley Drive, Smithfield. The council refused consent and the Bissos are appealing that decision. The site and its context 1. The site is located on the north east corner of The Horsley Drive and Alt Street Smithfield. It has frontages of 15.24m and 44.75m to each road respectively and site area of 828.4sqm. 2. The land has a consistent fall in gradient from the front property boundary to the rear, northern corner. A single storey 3 bedroom clad cottage stands on the site with its vehicular access of The Horsley Drive. A coloured metal fence runs along the Alt Street frontage of the site and also runs in a north/south direction to the west of the existing dwelling to separate that dwelling from the remainder of the site. It is on the vacant western portion of the site that it is proposed to construct the second dwelling. 3. The site contains a number of trees along the eastern boundary which are proposed to be retained with one tree to be removed along the Alt Street frontage. 4. Development in the vicinity of the site primarily comprises single storey detached dwellings. 5. Prospect Creek is located at the western end of Alt Street. 6. According to a survey filed with the application, the low point of the site is adjacent to an area that was the former location of a shed and that point is RL16.63. 7. The site is subject to mainstream flooding and is located between the 1 in 100 year flood level and the Possible Maximum Flood Level (PMF). Those levels are 15.8 – 15.9 and 18.0 – 18.1 respectively. According to the council's flood information sheet, the site is identified as being within a Low Flood Risk Precinct. Background and the proposal 1. The development application proposes the retention of the existing dwelling and the construction of a two storey dwelling containing four bedrooms, living dining, kitchen/family, laundry, bathrooms and double garage. 2. The application includes filling of the site under the platform of the proposed dwelling and the area forward of the façade of that building and under the driveway to facilitate the proposed stormwater drainage. The extent of filling was not clearly indicated on the plans before the Court however the applicant advises that no fill was to be placed in the proposed private open space areas. 3. The stormwater proposal before the Court involves raising the ground floor of the dwelling to RL 17.5 with filling under and forward of that building to Alt Street, piping the roof water through elevated pipes in that filled area to drain to Alt Street. The remaining runoff will follow the existing contours of the site to the rear. The runoff that would flow through the existing path would be reduced as a result of the proposal. The extent of change to drainage flow is discussed below. 4. The council did not receive any objections to the application. The planning controls 1. The site is zoned R2 Low Density Residential under the provisions of Fairfield Local Environmental Plan 2013 (LEP). The proposed development is permissible with consent in that zone. 2. Clause 2.3(2) of the LEP requires a consent authority to have regard to the objectives of a zone when determining a development application. The objectives of the R2 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. 1. Part 4 of the LEP contains Principal development standards with clauses 4.1 Minimum subdivision lot size, 4.1A Minimum lot size for dual occupancies, 4.1B Minimum subdivision lot size for dual occupancies, 4.3 Height of buildings and 4.4 Floor space ratio (FSR) relevant to the application. Pursuant to the relevant maps, the minimum subdivision lot size is 450sqm, the minimum lot size for dual occupancy development is 600sqm, the maximum FSR for the site is 0.45:1 and the maximum building height is 9m. The proposed development results in a FSR of 0.33:1 and building height of 7.341m and the site has an area in excess of 600sqm so is compliant with those development standards. 2. Pursuant to the provisions of clause 4.1A, subdivision of an existing dual occupancy is permissible provided a minimum lot area of 300sqm is achieved. Whilst the plans show a proposed subdivision of the site, consent is not sought for subdivision and could not be granted until such time as a dual occupancy development is lawfully erected on the land. 3. Clauses 6.2 and 6.4 are also relevant and are in the following form. 6.2 Earthworks (1) The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. (2) Development consent is required for earthworks unless: (a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or (b) the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given. (3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters: (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. 6.4 Floodplain risk management (1) The objectives of this clause are as follows: (a) in relation to development with particular evacuation or emergency response issues, to enable evacuation of land subject to flooding in events exceeding the flood planning level, (b) to protect the operational capacity of emergency response facilities and critical infrastructure during extreme flood events. (2) This clause applies to land between the flood planning level and the level of a probable maximum flood, but does not apply to land subject to the discharge of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard. (3) Development consent must not be granted to development for the following purposes on land to which this clause applies unless the consent authority is satisfied that the development will not, in flood events exceeding the flood planning level, affect the safe occupation of, and evacuation from, the land: (a) caravan parks, (b) commercial premises, (c) correctional centres, (d) emergency services facilities, (e) group homes, (f) hospitals, (g) industries, (h) residential accommodation, (i) residential care facilities, (j) tourist and visitor accommodation. 1. Clause 6.3 applies to flood planning however, because that clause defines the flood planning level as meaning the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard, it does not apply to the site, only below the flood planning level. The flood planning level for the site would be 15.9m plus 500mm i.e. RL16.4. 2. Fairfield City Wide Development Control Plan 2013 (DCP) applies to the site with Chapter 6B – Dual Occupancy particularly relevant to the application, in particular clause 6B.6 Drainage which includes a control in relation to cut and fill. That control requires: The height of floor level above the natural ground levels shall be limited to 600mm except where it is required to be raised to achieve a suitable freeboard above the flood level. This 600mm height includes the fill, bedding and the slab thickness. Any variation from this floor height shall not cause adverse amenity impacts to the adjoining properties and shall be justified to council. 1. The council's Stormwater Drainage Policy adopted in September 2002 is also relevant to the application. Its objectives are to: * Provide clear guidelines to Council's customers of requirements for stormwater drainage and civil works; * Ensure that developments meet all relevant standards for the disposal of * stormwater and that developments do not increase the hazard to persons or property; * Cater for minor and major stormwater systems; * Provide latitude for merit based assessment of stormwater issues; and * Expedite the assessment of development applications with respect to stormwater drainage. 1. The following clauses are relevant to the assessment of the application: 1.1 Impact on Adjoining Properties In assessing a development application, Council needs to be aware of the impact the development will have on adjoining properties. In terms of stormwater, the following issues will be considered: * Changes in site levels shall not cause ponding/backwater effects on upstream properties; * Diversion of flows from one drainage catchment to another will not be permitted in most circumstances; * Any development shall not concentrate the overland flow of stormwater onto an adjoining property; and * A person has a common law obligation not to carry out any work on their property that will adversely affect adjoining properties. Developments that have an adverse impact on adjoining/surrounding properties in relation to the above issues will not be approved. 1.3.1 Landfill/ Earthworks - Residential Residential developments involving earthworks shall be designed to balance cut and fill. Such a balance shall be demonstrated on plans through existing and proposed levels and calculations where appropriate. In most cases importation of fill will not be permissible except where unavoidable. Residential development involving landfill/earthworks shall have due regard to the following issues: * Excessive filling for drainage will not be supported for land that falls away from the street; * Proposed filling shall be compatible with services and easements in the near vicinity; * Proposed filling shall have regard to adjoining property in terms of upstream flows (refer to impacts on adjoining properties - Clause 1.1); * Consideration shall be given to adjoining properties in terms of privacy and overshadowing;…… 1.4 Floor and Finished Levels Proposed floor levels are required to have adequate freeboard to natural ground levels in accordance with the Building Code of Australia (BCA). All sites affected by overland flow, flooding and On-Site Detention (OSD) requirements receive special consideration and must comply with the freeboard requirements of the relevant Council policies. The height difference between the floor level and the natural ground level shall be such that the dwelling complements the adjoining development and meets planning considerations in terms of aesthetics, privacy and building heights. The floor levels proposed shall not rely on imported fill and aim for balanced cut and fill in accordance with Clause 1.3. Under no circumstances will the raising of floor levels beyond the requirements of this policy be accepted to facilitate the gravity flow of stormwater to the street. 1.5 Stormwater Drainage Layout The stormwater design is an important consideration in planning the development layout. In general, stormwater drainage of the site must be gravity fed into Council's system (see Section 3). The stormwater drainage design shall be in accordance with the requirements of this policy and relevant standards….. 1.6 Easements In most cases, easements for drainage purposes will be required where the development site slopes away from the street. Where an easement is required it shall be created over all downstream properties to the connection with Council's system. 3.2 Inter-allotment Drainage Where the land falls away from the road or there is no provision for drainage to the street, the applicant will be required to provide inter-allotment drainage to carry the stormwater from the development to Council's drainage system. Inter-allotment drainage for subdivisions for detached housing is to be designed to carry the 5 year Average Recurrence Interval (ARI) storm flows generated by assuming 60% of the lot area is impervious and drained by the drainage line. Interallotment drainage for other developments shall be designed to carry the 5 year ARI storm flows for the total site area, where there is a suitable overflow path. Should it be required to drain the proposed development/subdivision through private property, the subdivider will be required to register a suitable easement over the downstream properties with the office of Land & Property Information NSW prior to the issue of development consent. The easement width is to be in accordance with Council's standard easement widths (see Clause 2.1.6). A Deferred Commencement may be issued for developments requiring inter-allotment drainage, although the consent will not become operative until such time as the easement has been registered by the office of Land & Property Information NSW. Full design information for all inter-allotment drainage is to be provided with the plans submitted for approval. 1. Section 3.3 of the drainage policy applies to single residential dwellings only and therefore does not apply to dual occupancy development. It is however relied on by the applicant as the proposal relies on the options detailed in the section. The section states: 3.3 Drainage Options - Single Residential Dwelling (excludes attached dwellings and narrow lot residential development) The following options will only be applicable where stormwater disposal cannot be achieved by a conventional gravity drainage system and where there has been a genuine attempt to gain an easement through all possible downstream properties. This is to be confirmed through a signed letter from the owners of downstream properties in accordance with the sample letter contained within Appendix G. 1. The section provides options that involve the use of elevated pipes; charged lines; stormwater lines under buildings and alternative drainage systems and lists qualitative quantitative measures that must be satisfied. It concludes as follows: An Easement to Drain Water shall be required in all instances where the development cannot accommodate the criteria of the above listed options within Clause 3.3 subject to Council supporting all other aspects of the proposal, an easement may be considered as a Deferred Commencement issue. Council would insist on the applicant pursuing the appropriate legal avenues to obtain an easement in instances where all relevant adjoining land owners are not willing to grant an easement. All other developments including subdivisions, dual occupancies (on one existing lot only), attached dwellings, multi-unit housing developments, commercial and industrial will require an Easement to Drain Water where conventional gravity drainage cannot be provided. The issues 1. The contentions in the case are detailed in the council's Statement of Facts and Contentions filed with the Court on 16 September 2015 (Exhibit 1). 2. As the matter is to be heard under the provisions of s34AA of the Land and Environment Court Act 1979 (LECAct), a conciliation conference was held prior to the hearing. This conference included a site view. 3. As a result of that conciliation process, contentions 2, 3, 4 and 5 were resolved through the submission of amended plans (Exhibit B) and agreed conditions of consent. The remaining contentions relate to the proposed means of disposal of stormwater drainage and the extent of fill. The council says the contentions would be resolved through the applicant obtaining a drainage easement over two adjoining downstream properties however the applicant resists this proposed deferred commencement condition. 4. It is the council's contention that the development fails to demonstrate satisfactory provision for the disposal of stormwater from the site in accordance with its stormwater drainage policy and that failure to comply with that policy would not be in the public interest as it would set an undesirable precedent for similar inappropriate development and significant downstream drainage impacts. The evidence 1. The parties agreed that evidence/discussions heard during the conciliation phase could be evidence in the proceedings. 2. Expert evidence was presented in relation to the proposed means of draining the development. Mr C Morris prepared an individual report on behalf of the applicant (Exhibit D) and participated in the production of a Joint Report (Exhibit 6) with the council's engineer Mr J Bazergy. Mr Bazergy also provided an individual report, exhibit 4. 3. The engineers agree that the proposal involves the placement of 23 cubic metres of fill on the site. In the event that the council's alternate requirement to collect the surface runoff from the private open space area was required, in addition to piping to an easement over properties to the north of the site, 3 cubic metres of fill would be required. 4. The experts agree that the 1 in 5 year event is the design minor event in the council's drainage policy and the submitted stormwater proposal intends to design the stormwater systems for the roof areas for the 1 in 20 event, a minor event. The 1 in 100 year event is assessed as the major event. 5. The experts did not agree on the status of the existing site conditions. Mr Morris says that the existing condition is 135sqm site coverage over the 828sqm site, generating 24 litres/second in the 20 year event and 47l/s in the 100 year event, all existing runoff follows site contours to the rear. Mr Bazergy agrees 135sqm is the site coverage and says it drains to Alt Street via a charged system. He also considered an area of 75sqm which he says is a recently constructed unauthorised driveway that does not connect to any stormwater system. The plans originally proposed an extension of that area however the applicant advises that this is no longer proposed and agrees to a condition of consent that would delete that work from any plans approved if consent were to be granted. It was noted during the site view that the majority of that paved area drained to The Horsley Drive. 6. Mr Morris says the proposal is to provide a roof drainage system (gutters, downpipes and in ground pipes) which caters for the 20 year event, directing this to the street, filling the driveway and front setback to the proposed dual occupancy dwelling so that this area also drains to the street with the remaining runoff following the site contours to the rear. That would direct, in the 20 year event, 14l/s to the street and 20l/s to the rear and in the 100 year event, 14l/s to the street and 36l/sec to the rear. 7. Mr Bazergy disagrees and includes the entire sealed area and the now deleted turning bay in his calculations and says the proposed condition would be 16l/sec to the street and 31l/s to the rear in the 100 year event. He notes that the flows entering adjoining properties are uncontrolled and considers that the proposed system is inadequate in that it does not provide for capture of surface runoff from the site. He says the location and characteristics of the surface flows from the site, entering adjoining properties is expected to be different in the post development case however agreed that if there was to be no fill placed outside the building footprint, other than that forward of the building, the existing ground levels would be retained and there would be a reduction in the existing surface flow. Despite agreeing that the flow to downstream properties would be reduced, he maintained that an orderly disposal of stormwater would be achieved with a revised stormwater proposal via an inter-allotment drainage easement designed in accordance with clause 3.2 of council's stormwater drainage policy. 8. Mr Morris quantified the reduction in runoff to the rear during the 20 and 100 year events as 4l/s and 11l/s respectively. 9. The experts agree that filling the site is not a satisfactory outcome given it is within a flood zone however Mr Morris says a small amount of filling will have an immeasurably small difference during the PMF event. Mr Bazergy agreed the impact would be negligible. Mr Morris notes the site is within a Low Flood Risk Precinct, the mainstream flood details are: No flooding in the 20, 50 or 100 year event. The site at RL17 is over 1m above the local flood level in the once in one hundred year flood and the proposed minor filling is not within the flood plain for these events. For the PMF, where the flood level is some 2 metres higher that the once in one hundred year flood level, he says filling 0.5m over 180m2 in the high bank is irrelevant. 10. The experts agreed that the extent of fill outside the building footprint is 23sqm and that if, as proposed by Mr Bazergy, regrading of the private open space area was required to capture surface runoff for discharge to the easement he says is required, filling of 3cubic metres would be required. Mr Morris says that no change to the open space is required as the proposal results in a decrease in runoff from the existing situation. 11. During the hearing the applicant proposed further improvements to the method of drainage including the provision of upsizing the system to the 1 in 100 year event and no alteration to site levels. Conclusion and findings 1. The issue between the parties is whether a drainage easement should be acquired across two adjoining properties to provide for a piped drainage line within that easement that will discharge into Solo Crescent. It is the council's contention that this is the only appropriate means of disposal of stormwater that accords with the provisions of its Stormwater Drainage Policy. The applicant says that to acquire such easement would require further Court action and the costs of that action including payment of reasonable compensation would be prohibitive in relation to the costs of constructing the proposed dwelling. It is the applicant's position that the council policy provides for alternate means of disposal of stormwater when easements cannot be acquired and the proposed drainage system accords to that policy. The council accepts the proposal is consistent with the provisions of clause 3.3 of its policy however submits that this section applies to single residential dwellings only and excludes attached dwellings and narrow lot residential development. The parties were not able to assist the Court in providing a definition of those uses however, it is agreed that the development is not a single residential dwelling. 2. Having regard to the evidence, I am satisfied that the alternate method of disposal of stormwater drainage including the upsizing of the system to cater for the 1 in 100 year storm event, is an appropriate solution in the circumstances of the case. The extent of filling proposed is agreed between the engineering experts to be negligible and the system will reduce the existing uncontrolled flow that leaves the site and crosses the two adjacent properties towards Solo Crescent. The fill will not occur on land that is subject to the 5, 20 or 100 year flood event. 3. I accept that the proposal does not accord with the provisions of the council's stormwater drainage policy however, I do note that the extent of sealed/impervious area that would result from the development will be consistent with that which applies to single residential dwellings. Accordingly, the proposal would not result in any different impact on flows and flooding to that of a single dwelling. 4. Whilst not fully compliant with the drainage policy, the means of disposal is consistent with the dual occupancy drainage objectives because it has been designed to control flooding and prevent stormwater damage and ensure that proposed drainage of the site does not have an adverse impact on adjoining and downstream properties. The council does not contend these objectives are not met. The controls call for an easement to be obtained unless the applicant is able to demonstrate that the proposal can drain to the street in a satisfactory manner. I am satisfied that the system proposed by the applicant provides for drainage to the street in an appropriate manner. 5. The proposed finished floor level is higher than the 600mm control in the DCP however the planning experts agree that the development will not cause adverse amenity impacts to the adjoining properties. 6. I am satisfied, subject to the proposed conditions of consent, in particular those conditions that require upsizing of the system, limitation on fill and the extent of impervious areas, that the development will be consistent with the objectives of the DCP and stormwater drainage policy. I do not accept that it is necessary to impose the requirement that a drainage easement be obtained having regard to the impact of the proposal as discussed above. 7. The proposal provides for a satisfactory method of disposal of stormwater drainage and, as required under clause 6.2 of the LEP, I am satisfied the development will not have any detrimental effect on existing drainage patterns and soil stability in the locality. Conditions of consent address other relevant requirements of that clause. 8. There is no evidence that the development will affect the safe occupation of and evacuation from the land in a flood event. 9. The Orders of the Court are: 1. The appeal is upheld. 2. Development Application DA No 5.1/2014 for a dual occupancy development at 565 The Horsley Drive, Smithfield is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits A, B, C and 1 are returned. ______________________ Sue Morris Commissioner of the Court ********** 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: 05 January 2016