Whealey v Warringah Council [2009] NSWLEC 1194

Whealey v Warringah Council [2009] NSWLEC 1194

Having inspected the site and surrounding area and considered the joint engineering evidence, the Court was satisfied that the amended conditions would achieve the intent of the stormwater disposal policy. The proposed infiltration system was designed for the 50 year ARI storm, included an overflow mechanism, would reduce the rate of stormwater discharge from the property, and in the circumstances was likely to assist rather than worsen the overloaded downstream drainage system. The agreed revised conditions were therefore reasonable and appropriate, and the consent orders should be made.

Jurisdiction
Australia
Judgment Date
21 April 2009
Procedural Posture
Appeal Against Conditions of Development Consent / Ex Tempore Judgment Making Consent Orders
Outcome
Appeal upheld; development consent granted subject to conditions in Annexure A.
Legal Topics
['development Consent' 'stormwater Drainage' 'on Site Detention' 'stormwater Drainage Easement' 'on Site Absorption Systems']
['planning and Environment Law'] ['development Consent' 'stormwater Drainage' 'on Site Detention' 'stormwater Drainage Easement' 'on Site Absorption Systems']

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Procedural Posture

Appeal Against Conditions of Development Consent / Ex Tempore Judgment Making Consent Orders

Legal Issues

  1. 1 ['Whether deferred commencement conditions requiring a stormwater drainage easement and stormwater drainage design should be varied.' 'Whether the proposed split drainage system, including a charged system for roof runoff and an infiltration system for front yard and driveway runoff, would adequately minimise overland flow, nuisance flooding and impacts on downstream properties.' 'Whether consent orders varying the conditions were reasonable and appropriate.']

Ratio Decidendi

Having inspected the site and surrounding area and considered the joint engineering evidence, the Court was satisfied that the amended conditions would achieve the intent of the stormwater disposal policy. The proposed infiltration system was designed for the 50 year ARI storm, included an overflow mechanism, would reduce the rate of stormwater discharge from the property, and in the circumstances was likely to assist rather than worsen the overloaded downstream drainage system. The agreed revised conditions were therefore reasonable and appropriate, and the consent orders should be made.

Court Disposition

Appeal upheld; development consent granted subject to conditions in Annexure A.

Orders

  • ['The appeal be upheld.' 'Development consent be granted to the demolition and construction of a new two (2) storey dwelling and associated landscaping at 37 Gardere Avenue, Curl Curl, subject to conditions in Annexure A.' 'The exhibits be returned except 1, 2 and B.']