Captain Developments Pty Ltd v Wingecarribee Shire Council [2023] NSWLEC 1409

Captain Developments Pty Ltd v Wingecarribee Shire Council [2023] NSWLEC 1409

The appeal was dismissed because the proposed development lacked an adequate and resolved means of disposing of stormwater from a flood affected site. The proposed charged system discharging to Moss Vale Road was unacceptable, no drainage easement or legal point of discharge had been secured, the alternative concept required fundamental revision, and the impacts of any prospective stormwater design on the site and adjoining or nearby land were unknown. Without a drainage path or stormwater system design supported by necessary calculations and investigations, the Applicant did not discharge its persuasive burden under s 4.15 of the Environmental Planning and Assessment Act 1979, and the...

Jurisdiction
Australia
Judgment Date
01 August 2023
Procedural Posture
Class 1 Appeal Against Refusal of a Development Application / Final Hearing and Determination
Outcome
Appeal dismissed; development application refused.
Legal Topics
['multi Dwelling Housing Development' 'stormwater Drainage' 'flood Affected Land' 'drainage Easement' 'legal Point of Discharge' 'sydney Drinking Water Catchment' 'neutral or Beneficial Effect on Water Quality']
['environmental Planning and Assessment' 'development Consent' 'land and Environment Court Proceedings'] ['multi Dwelling Housing Development' 'stormwater Drainage' 'flood Affected Land' 'drainage Easement' 'legal Point of Discharge' 'sydney Drinking Water Catchment' 'neutral or Beneficial Effect on Water Quality']

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Procedural Posture

Class 1 Appeal Against Refusal of a Development Application / Final Hearing and Determination

Legal Issues

  1. 1 ['Whether the proposed development made adequate provision for disposal of stormwater from the site.' 'Whether consent could be granted subject to conditions deferring or separately addressing stormwater drainage and the obtaining of an easement.' 'Whether the Applicant discharged its persuasive burden concerning likely environmental impacts under s 4.15 of the Environmental Planning and Assessment Act 1979.' 'Whether the Court could be satisfied that the development would have a neutral or beneficial effect on water quality under s 8.8 of State Environmental Planning Policy (Biodiversity and Conservation) 2021.']

Ratio Decidendi

The appeal was dismissed because the proposed development lacked an adequate and resolved means of disposing of stormwater from a flood affected site. The proposed charged system discharging to Moss Vale Road was unacceptable, no drainage easement or legal point of discharge had been secured, the alternative concept required fundamental revision, and the impacts of any prospective stormwater design on the site and adjoining or nearby land were unknown. Without a drainage path or stormwater system design supported by necessary calculations and investigations, the Applicant did not discharge its persuasive burden under s 4.15 of the Environmental Planning and Assessment Act 1979, and the...

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development application No. 22/0335 for the demolition of existing structures, removal of 12 trees and construction of a multi dwelling housing development comprising 6 x 3 storey dwellings over basement parking for 14 vehicles at 511 Moss Vale Road, Bowral is refused.' 'All exhibits are...