T. C. Punnett and Associates Pty Limited v Shoalhaven City Council (No 2) [2005] NSWLEC 37 (15 February 2005)

Last Updated: 29 March 2005

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: T. C. Punnett and Associates Pty Limited v Shoalhaven City Council (No 2) [2005] NSWLEC 37


PARTIES:
APPLICANT
T. C. Punnett and Associates Pty Limited

RESPONDENT
Shoalhaven City Council





CASE NUMBER: 11479 of 2003


CATCH WORDS: Development Application


LEGISLATION CITED:
Environmental Planning and Assessment Act 1979

CORAM: Brown C

DATES OF HEARING: Written submissions

DECISION DATE: 15/02/2005


LEGAL REPRESENTATIVES

APPLICANT
Ms L Finn, solicitor
SOLICITORS
Abbott Tout

RESPONDENT
Mr G Gleeson, solicitor
SOLICITORS
Morton & Harris




JUDGMENT:


THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES


Brown C


15 February 2005


11479 of 2003 T. C. Punnett and Associates Pty Limited v Shoalhaven City Council


JUDGMENT

1 COMMISSIONER: This is an appeal against the deemed refusal of Development Application 03/202 by Shoalhaven City Council for the construction of a housing development for older persons or persons with a disability at 22 Victoria Street, Berry.

2 The matter was heard on 26, 27 and 28 October 2004. On 8 December 2004 findings on the merits were published stating that there were no substantive reasons why development consent should not be granted however the conditions contained a number of omissions and inappropriate conditions that needed to be addressed prior to the issuing of formal Orders.

3 The parties were directed to confer on the draft conditions to address these anomalies and provide further conditions within a period of seven days. If agreement could not be reached on all conditions, leave was granted for the parties to restore the matter on 48 hours notice

4 In accordance with these Directions, the parties requested a Mention on 23 December 2004 where further Directions were given.

The conditions in dispute
5 The principal area of dispute centres on whether 9 deferred commencement conditions should be imposed as deferred commencement conditions or as standard conditions, although the parties only make specific submissions on condition 2. This conditions states:
2.Stormwater Drainage Design & Easement (s)
The development must comply with Council’s Development Control Plan 100 (DCP100) – ‘Subdivision Code’, in respect to how the resultant stormwater will be discharged by pipe work and conveyed to an approved discharge point, or the Council’s stormwater system. Details of this condition including the Legal Provision of any stormwater easements over adjoining land(s) (if required), must be submitted to Council prior to the issue of an Operational Development Consent. A revised stormwater concept plan is to be prepared and submitted with the application for an operational consent. Any drainage swales proposed along the boundaries of the site are to be located so as to permit the planting of trees in accordance with the approved landscape concept plan.

6 Ms Finn, on behalf of the applicant submits that this condition should not be a deferred commencement condition as there is no evidence to indicate that the flow of water will constitute a nuisance. In any event, any nuisance will not be remedied by the creation of an easement. She states that Mr Gaskell, the applicant’s engineer, provided the only hydrological engineering evidence that indicated that there was no requirement for an easement. It is further submitted that a reference to DCP 100 is irrelevant and should be deleted, considering the requirements of SEPP 5.

7 Mr Gleeson, on behalf of the council submits that the condition should remain as a deferred commencement condition. He submits that the applicant proposes concentrating drainage to a specified point at the common boundary and thereafter to flow into adjoining land. Without an easement, this will constitute a nuisance that would be actionable by the adjoining landowner. A reference to DCP 100 is necessary as it provides specific requirements for inter allotment drainage.

8 In considering the submissions, I accept that Mr Gaskell's hydrological evidence was the only evidence placed before the Court on this issue. However, my reading of Mr Gaskell’s evidence indicates that the need for an easement is uncertain and not necessarily that there is no need for an easement (Exhibit O, pars 11 and 12). I also note that his evidence outlines previous unsuccessful attempts by the applicant to obtain an easement over a down stream property.

9 I accept Mr Gleeson's submission that the potential exists for a nuisance to be created through the collection of stormwater from the proposed development and its ultimate discharge into the natural drainage system.

10 I also accept Mr Gleeson's submission that the reference to DCP 100 should remain. This document provides the detailed requirements for stormwater disposal. Clause 25(d) of SEPP 5 identifies stormwater disposal as a matter to be considered but could not be seen as addressing the stormwater disposal to the level expected in a condition of approval.

11 Even accepting that the council raised no issue with the disposal of stormwater, the ongoing question of whether an easement is required and in the absence of any substantive level of detail on the means of disposing of stormwater, I agree that the deferred commencement condition should remain.

12 Deferred commencement conditions 1, 9 and 10 provide information and direction on compliance with the deferred commencement conditions and as deferred commencement condition 2 is to remain, these conditions should also remain.

13 The remaining deferred commencement conditions in dispute relate to the provision of a pathway (deferred commencement condition 3), compliance with the archaeological reports (deferred commencement condition 5), the submission of a water and sewerage strategy (deferred commencement condition 6), the submission of a traffic and access management plan (deferred commencement condition 7) and the provision of details of contract or arrangement for care and facilities (deferred commencement condition 8).

14 In my view, these matters are appropriately dealt with as general conditions of approval as they were matters dealt with at the hearing or simply require the provision of further information that does not challenge the substance of the approval.

15 The applicant also seeks the deletion of condition 13 that identifies the proposed development as a staged development. As the staging set out in condition 14, I accept that condition 13 may be deleted.

16 The parties also agreed to the deletion of conditions 33, 52(a), 52(b), 56, 61, 68 and 76 and deferred commencement condition 4.

Orders
17 For the foregoing reasons, the Orders of the Court are;
1. The appeal is upheld.
2. Development Application 03/202 for the construction of a housing development for older persons or persons with a disability at 22 Victoria Street, Berry is approved subject to the conditions in Annexure A.
3. The Exhibits are returned with the exception of Exhibits 11 and A.



___________
G T Brown
Commissioner of the Court