Background
Habib Hamade appealed the deemed refusal of a development application to demolish an existing house at 244 Connells Point Road, Connells Point, and build a new two-storey dwelling with basement parking, pool, spa, cabana and landscaping. The steep, low-lying battle-axe site drains toward a neighbouring property at 246 Connells Point Road, where runoff has inundated a tennis court during heavy rain.
Most issues concerning the proposal were resolved through amended plans and expert conferencing. The remaining dispute was whether the proposed stormwater arrangements complied with the Georges River Local Environmental Plan 2021, the development control plan and Council’s stormwater policy. The applicant advanced two alternatives: on-site detention with a level spreader, or that arrangement plus a pump-out system. A drainage easement to Wisdom Street was accepted by the experts as the preferred solution, but was not part of the application and had not been secured.
The Court’s Holding
Acting Commissioner Young dismissed the appeal and refused consent. The Court was not satisfied that either proposed drainage option would avoid, or adequately minimise and mitigate, significant adverse stormwater impacts on adjoining properties as required by cl 6.3(2)(c) of the local environmental plan.
Although the applicant’s evidence indicated reduced peak discharge rates, both experts accepted that overland flows would last longer. The evidence did not establish the practical or long-term effects of the residual, concentrated discharge through the level spreader, including whether flooding of the neighbouring tennis court would continue. The applicant bore the onus of providing adequate information to demonstrate acceptable impacts. The Court also found it could not be satisfied that adequate arrangements for stormwater drainage had been made under cl 6.9(e), and could not cure the deficiencies through deferred commencement or conditions.
Key Takeaways
- An applicant must provide sufficient evidence of the real-world effects of proposed stormwater arrangements on neighbouring land.
- Reduced peak runoff alone may not establish an improved outcome where discharge is prolonged or concentrated.
- A preferred drainage easement cannot be imposed by condition without the affected owner’s consent.
Why It Matters
The decision illustrates the importance of resolving drainage constraints before a Class 1 merits appeal, particularly for low-lying residential sites reliant on downstream private land. A proposal may fail even where its design improves some runoff metrics if the evidence does not demonstrate that remaining impacts are acceptable.
It also confirms that deferred commencement conditions are not a substitute for an adequate environmental assessment of a development’s stormwater impacts.