Bisso & Anor v Fairfield City Council [2016] NSWLEC 1007

Bisso & Anor v Fairfield City Council [2016] NSWLEC 1007

The appeal was upheld because, although the proposal did not fully comply with the Council's Stormwater Drainage Policy, the Court was satisfied on the evidence that the alternate stormwater system, conditioned to be upsized and to limit fill and impervious areas, would drain to the street appropriately, reduce existing uncontrolled flows to downstream properties, involve only negligible fill not on land subject to the 5, 20 or 100 year flood event, and would not adversely affect adjoining properties, existing drainage patterns, soil stability, or safe occupation and evacuation in a flood event. A drainage easement was therefore not necessary.

Jurisdiction
Australia
Judgment Date
05 January 2016
Procedural Posture
Class 1 Development Application Appeal Against Refusal of Consent / Final Judgment After Conciliation Conference Under S34 AA of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['dual Occupancy Development' 'drainage Easement' 'floodplain Risk Management' 'earthworks and Fill' 'development Control Plan Compliance']
['planning and Environment' 'development Consent' 'stormwater Drainage'] ['dual Occupancy Development' 'drainage Easement' 'floodplain Risk Management' 'earthworks and Fill' 'development Control Plan Compliance']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal Against Refusal of Consent / Final Judgment After Conciliation Conference Under S34 AA of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the proposed dual occupancy development made satisfactory provision for stormwater disposal without requiring a drainage easement over downstream properties.' "Whether the proposed extent of fill and raised finished floor level were acceptable given the site's flooding context and planning controls." "Whether consent should be granted subject to conditions notwithstanding non-compliance with aspects of the Council's Stormwater Drainage Policy."]

Ratio Decidendi

The appeal was upheld because, although the proposal did not fully comply with the Council's Stormwater Drainage Policy, the Court was satisfied on the evidence that the alternate stormwater system, conditioned to be upsized and to limit fill and impervious areas, would drain to the street appropriately, reduce existing uncontrolled flows to downstream properties, involve only negligible fill not on land subject to the 5, 20 or 100 year flood event, and would not adversely affect adjoining properties, existing drainage patterns, soil stability, or safe occupation and evacuation in a flood event. A drainage easement was therefore not necessary.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The appeal is upheld.' '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.' 'The exhibits, other than exhibits A, B, C and 1 are returned.']