A DEVELOPER ordered to build a “pipe to nowhere” on former Pasminco smelter land at Boolaroo because of an awkwardly-worded Lake Macquarie City Council condition of consent has won an appeal against the decision.
Three NSW Court of Appeal judges upheld Bunderra Holdings’ appeal against an earlier NSW Supreme Court decision requiring it to build a major drainpipe beneath Main Road, although the drain is only required if Pasminco develops a subdivision above the 90-lot Bunderra site.
The Bunderra pipe forms part of a stormwater network designed to drain water from the Pasminco and Bunderra sites into Cockle Creek, and ultimately into Lake Macquarie, the appeal court judges were told.
In December a Supreme Court judge ordered Lake Macquarie City Council not to issue a construction certificate to Bunderra after accepting Pasminco’s argument that the pipe had to be built, even though Pasminco has not developed its site above the Bunderra land.
But appeal court judges Ruth McColl, Mark Leeming and Anthony Payne accepted Bunderra’s submission that the Main Road drainpipe would not connect to any stormwater structure on its subdivision “unless and until” stormwater structures on the Pasminco site were designed and constructed.
“Until that time… as Bunderra submitted, it will be, in essence, a ‘pipe to nowhere’,” the appeal judges found.
“The fact that it serves no practical function until the (Pasminco) site is developed underscores the conclusion that it was not a responsibility which would be expected to fall on the owner of the (Bunderra) site.
“It made neither commercial nor practical sense to require it to construct a pipe beyond its own boundaries, in circumstances where the pipe directly benefited Pasminco, as it was necessary to enable it to undertake its mooted subdivision of the Main site.”
Justice Leeming described the condition of consent that contributed to the launch of court action as “awkwardly drafted”.
The court noted Pasminco had not yet sought council approval for stormwater structures on its development site above the Bunderra Holdings site.
The court found it was open to the Supreme Court judge to find there were “substantial issues with flooding” on the Bunderra site, but accepted a Bunderra application to appeal that finding after the company submitted there was a “relevant distinction between flooding and being affected by stormwater”.
The Bunderra Holdings development covers nine hectares of the 163-hectare Pasminco site.