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.
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