Court Rejects Pump Out Solution to Drainage Problems

Stormwater issues can be an absolute nightmare for property developers, as well as for consultant town planners and engineers who are advising them. A project that is perfectly acceptable on a merits basis can be stopped in its tracks if an adequate solution to drainage issues cannot be found. 

Problems are especially likely to be encountered in situations where the property slopes away from the street frontage.  In these circumstances, the council may impose a "deferred commencement condition" in the consent, requiring that a drainage easement be acquired over downstream properties before building work can commence. 

Getting an easement from the owners of neighbouring properties can also be  a major headache. Neighbours may feel that they have the developer literally "over a barrel" and may demand a premium price well above the actual valuation for the right to an easement.  Or, the neighbouring owners may be unwilling to grant an easement at any price. While it is possible to take legal action to force a neighbouring owner to grant a drainage easement, the litigation option can be very expensive, as the general rule is that a party that is seeking an easement must pay the costs of the property owner from whom the easement is sought.

In view of these obstacles, it is no wonder that developers would be inclined to find an alternative to using easements across neighbouring land to deal with stormwater issues. However, as a recent case in the Land and Environment Court graphically illustrates, that is easier said than done.

Wren Investments Pty Ltd v Willoughby City Council, (2011) NSWLEC 1167 involved an application to modify a development consent that had been granted by the Court for construction of housing for older people/people with a disability in Chatswood.  The consent included a deferred commencement condition which required that an easement be obtained to convey stormwater over adjacent land to an underground stormwater collection system. 

The developer sought approval for an alternative method of handling stormwater, involving the installation of a stormwater collection tank in the basement of one of the buildings at the development and the use of a mechanical pumping system to convey the stormwater to the street.

This proposal was inconsistent with the council's Development Control Plan, which allows for a pump out solution only for single residences and only where physical constraints prevent the drainage of stormwater by gravity. Consequently, the council refused the application to delete the condition requiring an easement. On appeal, the Land and Environment Court upheld the council's refusal to modify the consent.

The reasons that the Court (Commissioner Brown) gave for dismissing the developer's proposal included:

* The pump out system would not be as reliable as gravity drainage.
* The pump out system would not function properly in the event of a power failure, resulting in flooding of the development site and the discharge of stormwater to downstream properties.
* The developer had not exhaustively explored negotiations for the acquisition of an easement from the downstream property owners.
* The developer had not pursued court action to try to obtain an easement before seeking approval of the pump out solution.

The outcome of this case provides an important lesson for developers who own sites with problematic drainage issues: it is advisable to engage in discussions with adjoining owners at an early stage of the site development process, and, where possible, to obtain any necessary easements before a development application is lodged. If an applicant can demonstrate to an assessment body that a right to drain stormwater has already been obtained, there will be no need for a deferred commencement condition, and construction can begin immediately after a consent is secured. 

A further lesson of the case is that mechanical solutions to drainage issues are disfavoured both by councils and by the court. The prospects for gaining approval of a pump out system will likely be very limited, especially if all possible avenues for relying on gravity drainage have not been fully explored.

Court Finds Brothel Use Not Amenable to SEPP 1 Objection

Justice Biscoe of the Land and Environment Court has ordered a brothel in Chatsood's main business district to close its doors. The orders were made in a judgement that was handed down on 15 June 2011, Willoughby City Council v Spa and Beauty Relaxation Centre Pty Ltd, (2011) NSWLEC.  

Willoughby Council based its application to restrain the operation of the brothel on three separate grounds:

1. The premises were being used as a brothel in contravention of two separate "Brothel Closure Orders"that had been issued by the council under section 121B of the Environmental Planning and Assessment Act;
2. The premises were in breach of a condition of a development consent that had previously been issued that authorised the use of the premises only as a "health and relaxation centre".  The condition stipulated that ""no body massage or sex"was to be offered; and
3. The brothel was operating contrary to a provision of the Sydney Regional Environmental Plan No. 5 (Chatswood Town Centre) which specified that development for the purposes of a brothel was "prohibited"in circumstances where the premises in question were within 100 metres of another brothel for which consent had been granted.

The operator of the brothel defended the proceedings only against the third grounds: she submitted that the provision of the SREP declaring that two brothels could not be operated within100 metres of each other was not in fact a prohibition, but only  a"development standard".  She further submitted that if the Court concluded that the provision was indeed a development standard, it was not compelled to exercise its discretion to close the brothel, and that it could either refuse the remedy sought by the council or adjourn the case so that a development application could be pursued.

Justice Biscoe rejected the suggestion that the clause in the SREP  was a development standard that could be varied.  Instead, His Honour found that the clause in the SREP was a prohibition which prevented two brothels from being operated in close proximity. In reaching this conclusion, Justice Biscoe found it persuasive that the specific wording of the SREP made reference to a "prohibition".

In any event, Justice Biscoe found that resolving the question of whether the SREP constitutes a development standard or a prohibition was not necessary to determination of the proceedings - His Honour concluded that the fact that the premises had been operating in direct breach of the condition of the consent banning their use as a brothel was reason enough to grant the council's application for a restraining order.

The link to the judgement is:

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=152664

The Land and Environment Court generally has little tolerance for illegal brothels, and this case was no exception.


 

Court Refuses to Grant Building Certificate for Illegal Advertising Sign

Commissioner Susan Dixon of the Land and Environment Court has ruled that the court does not have power to grant a building certificate for development that is “prohibited” under local zoning codes.

It has been a very common practice for persons who have carried out development without first obtaining development consent to seek to “regularise” the development by obtaining a building certificate for the works.  The legal effect of securing a building certificate is that the council cannot require that the development be demolished, repaired or rebuilt for 7 years.

However, in a decision dated 23 May 2011, Commissioner Dixon held that prohibited development cannot be regularised in this manner.

The case, APN Outdoor (Trading) Pty Ltd v Council of the City of Sydney, (2011) NSWLEC 1131 involved an advertising sign that had been affixed to the wall of a terrace house in Glebe.  The property was located within a heritage conservation area.  Accordingly, the display of advertising was prohibited under State Advertising Planning Policy 64 – Advertising and Signage.  In addition, the applicable Local Environmental Plan proscribed the display of advertising in the area.

The proceedings came before the Court after the council had issued an order requiring that the signage be removed, and had then refused an application for a building certificate for the sign.

Commissioner Dixon decided that the legal position with respect to development that is prohibited by applicable planning controls is fundamentally different from development that is permissible.  The Commissioner found that “there is an overriding public interest” in upholding zoning regimes by  preventing prohibited development from remaining in place.  Thus, while a building certificate may be obtained “after the fact” to regularise permitted development that has been performed without consent, the Court held that it did not have authority to order the council to grant a building certificate for development that is completely prohibited.

The full text of the Court's juddgement is available at:

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=152160

A Cautionary Tale About Arborists' Reports

The Land and Environment Court has severely criticised the quality of an arborist's report in a judgement dated 12 May 2010.


The case, Proprietors SP 9467 v Motyl and anor [2011] NSWLEC 1120, involved an application under the Trees (Disputes Between Neighbours) Act that sought the removal of three camphor laurel trees. 


In unusually harsh language, Senior Commissioner Moore and Commissioner Fakes declared that the report, prepared by the consultant arborist who had been retained by the owners of the property where the trees were growing, was "not worth having been provided to us".  The Court condemned the report - which it scathingly characterised as a "so-called" report, for including a statement that the Court found to be "patently and demonstrably false" - namely, the arborist's claim that the trees had not caused damage to the palings of a dividing fence.  The Court also excoriated the expert for stating in his report that there was no greater than a 1 in 1 million chance that the trees would present a risk of harm, without providing any basis for that statistical claim.


The Court stated that the deficiencies in the report were reflective of "widespread deficiencies" in the quality of reports that are relied on in cases arising under the Trees Act. The Commissioners therefore determined that the case presented an opportunity for the Court to clarify its expectations concerning the contents of experts' reports - specifically:


1) The report must set out the facts on which the expert relies;
2) Where matters of fact are asserted, appropriate references must be provided;
3) The report must state the assumptions which the expert makes with respect to the facts;
4) The experts' conclusions must be clearly stated.


The moral of this case extends beyond arborists to all expert witnesses who are giving evidence before the Land and Environment Court. 


Any expert would be well-advised to follow the guidelines provided by Commissioner Moore and Fakes. Failure to do so may well result in rejection of the expert's evidence and the prospect that the expert's work product will be characterised in extremely unflattering terms.