Zawal v Wingecarribee Shire Council [2012] NSWLEC 1016

Zawal v Wingecarribee Shire Council [2012] NSWLEC 1016

The appealed conditions were unreasonable to the extent that they required the applicant to pay for and maintain major stormwater infrastructure needed to convey catchment stormwater through the subject land for the benefit of the broader rezoned area. The required 6 m overland flow path and underground pipe were necessary catchment infrastructure and Council's own resolution contemplated their implementation and funding from old s 94 stormwater funds. Although the subject subdivision would benefit from the works, the conditions had to be amended to reflect fair and reasonable cost sharing rather than placing the whole burden on the applicant.

Jurisdiction
Australia
Judgment Date
18 January 2012
Procedural Posture
Class 1 Appeal Concerning Conditions of Development Consent for a Five Lot Subdivision / Principal Judgment After Hearing of Appeal Against Conditions 10, 11 and 17
Outcome
Appeal upheld
Legal Topics
['five Lot Subdivision' 'reasonableness and Nexus of Consent Conditions' 'stormwater Management Infrastructure' 'overland Flow Path and Drainage Easements' 'section 94 Stormwater Funds']
['planning and Environment Law' 'development Consent Conditions' 'stormwater Infrastructure'] ['five Lot Subdivision' 'reasonableness and Nexus of Consent Conditions' 'stormwater Management Infrastructure' 'overland Flow Path and Drainage Easements' 'section 94 Stormwater Funds']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning Conditions of Development Consent for a Five Lot Subdivision / Principal Judgment After Hearing of Appeal Against Conditions 10, 11 and 17

Legal Issues

  1. 1 ['Whether conditions requiring the applicant to provide and maintain stormwater infrastructure for catchment flows through the subject site were reasonable.' 'Whether the required overland flow path, underground pipe and easements fairly and reasonably related to the permitted subdivision development.' 'Whether the applicant should bear the total cost of infrastructure benefiting the broader rezoned catchment area.']

Ratio Decidendi

The appealed conditions were unreasonable to the extent that they required the applicant to pay for and maintain major stormwater infrastructure needed to convey catchment stormwater through the subject land for the benefit of the broader rezoned area. The required 6 m overland flow path and underground pipe were necessary catchment infrastructure and Council's own resolution contemplated their implementation and funding from old s 94 stormwater funds. Although the subject subdivision would benefit from the works, the conditions had to be amended to reflect fair and reasonable cost sharing rather than placing the whole burden on the applicant.

Court Disposition

Appeal upheld

Orders

  • ['The appeal is upheld.' 'The development application submitted to Wingecarribee Shire Council for a five lot subdivision of lots 11 and 12 Willow Street, Willow Vale is approved, subject to the amended conditions in Annexure A.' 'The exhibits are returned to the parties except for the plan of subdivision, exhibit B.']