Approval of multiple-dwellings development – all depends on the adequacy of the proposed drainage system

The Planning and Environment Court delivered a decision in the case of Spry v Brisbane City Council & Anor [2017] QPEC 16 which involved a submitter appeal against the decision of the Brisbane City Council to approve a development application for a development permit for 3 multiple-dwellings.

The issues in dispute in the appeal concerned the following:

• the lawfulness of conditions 35 and 36 of the decision notice which included 2 options to provide an internal drainage system and the lawful point of discharge requirements;
• the need to impose a condition that “no connection be made to the foul water/private pipeline traversing the Land, 9 West Street and 11 West Street, Highgate Hill”.

As the Council and the proponent agreed to remove option 1 from condition 36, the lawfulness of conditions 35 and 36 was no longer in dispute.

The Court was not persuaded that there was an identified need to impose a condition relating to the foul water/private pipeline connection since there was no allegation about the adequacy of an approval of the proposed development or that the proposed development would be in conflict with the planning scheme, in the absence of the condition.

The Court therefore gave the development approval subject to the amendments to condition 36.

Snapshot of Court’s consideration and findings

Lawfulness of conditions 35 and 36

Condition 36 of the decision notice contained 2 options to provide an internal drainage system. Relevantly, option 1 required the proponent to demonstrate that the existing 225mm diameter pipe was in working order.

The basis of the submitter’s challenge against the lawfulness of conditions 35 and 36 of the decision notice was that option 1 was unable to be achieved because it sought to refer to a pipe that was not in existence.

Condition 36 required the provision of an internal drainage system irrespective of whether the pipe existed or not, and whether option 1 was capable of being complied with or not. The Court did not believe the inability to achieve one option would render the condition incapable of performance.

Nevertheless, the Council and the proponent agreed to remove option 1 from condition 36. As such this issue was no longer in dispute.

Necessity to impose a condition about no connection to a foul-water line

The submitter alleged that “the decision failed to impose a condition that no connection be made to the foul water/private pipeline traversing the Land, 9 West Street and 11 West Street, Highgate Hill.”

The Court observed that the submitter did not identify any basis for the imposition of the condition by reference to an engineering reason or a planning purpose.

The submitter sought to rely on Sansom v Beaudesert Shire Council [2003] QPELR 335 and the Infrastructure design planning scheme policy to argue that there was a need for the imposition of the condition.

The Court did not accept the submitter’s argument for the following reasons:

• there was no allegation in the submitter’s notice of appeal that the provision of a connection to a foul water or private pipeline would amount to a breach of the law;
• the submitter had not established that compliance with the planning scheme policy was necessary and any such non-compliance would not necessarily amount to a conflict with the planning scheme.

The Court further noted that conditions 35 and 36 provided an appropriate mechanism for the discharging of stormwater from the site.

An imposition of the condition required by the submitter was considered by the Court to be pre-emptive.