People considering purchasing lots within the new subdivision at The Oaks, 29-31 Gem Road, Kenmore, 4069 may wish to seek professional advice about the following matters BEFORE ENTERING ANY LEGAL DOCUMENTS. The subdivision has been approved subject to conditions. Many of those conditions will bind purchasers of the new lots. In particular, conditions relevant to stormwater & drainage. As part of their due diligence, purchasers should consider whether those conditions have been satisfied in relation to the lot that interests them. The fact that the BCC has sealed plans does not, of itself, mean that conditions have been satisfied. 

Relevant conditions include conditions 24, 26 and 28 of the approval on 27.7.17 in Gemfive Pty Ltd v BCC, BD 747 of 2017 and 23 of the approval on 31.5.19 in Lyons v BCC, JPJ Development Pty Ltd, BD 3755 of 2018. A solicitor or town planner will be able to get copies. Approval conditions identify an outcome to be achieved, e.g. condition 28 says that "stormwater run-off ... to be collected internally and directed to a lawful point of discharge..."  An RPEQ civil engineer with stormwater experience may be helpful.

As at 19.8.20 that outcome has not been achieved.  The developer has not constructed an overland flow path downhill of, and along the length of, the large boulder retaining wall to collect and direct stormwater run-off to a lawful point of discharge, e.g. at Fern Place. In addition to water flowing down the slope, there is water funnelled down the site's western boundary from a large catchment area across the top of the site. The absence of an overland flow path or other measure explains the above photo of stormwater run off from the Oaks flooding through the boundary fence to one of the downhill properties, 85 Palm Street, in February 2020. Only moderate rainfall was required to cause this.

In A005498519 the BCC approved works that may remedy such problems. The developer says that it will complete them as soon as possible and within 10 business days after 10.8.20. As at 19.8.20 the work has not been done. It has not started. If it is not completed asap then litigation is foreseeable and incoming lot owners may be joined as parties to Court proceedings. If a lot does not comply with approval conditions then a lot owner may be ordered by a Court to bring their lot into compliance. There is also a potential liablility in the tort of nuisance. The lots within the Oaks that are most directly concerned are lots 1 to 4 along the lower northern boundary. That can be seen from the SW layout plan approved by the BCC.

Update: Since 19.8.20, works have been undertaken. The developer claims they comply with operational works approval A005498519.

Update 7.45am 27.3.21: The developer has produced a certificate dated 23.3.21. Parties may wish to consider whether that certificate  expressly covers all the relevant works. It is directed at "Stormwater drainage (specifically line 2/D to Out/New and table drains as shown on certified drawing no WCD-20569-SK1(E) as prepared by WC Designs". Parties may wish to consider whether this wording narrows the opening reference to stormwater drainage materially, e.g. there is no express reference to the inlets and their grates. 

Parties may wish to consider the certification of the as constructed works. The certificate expresses that it relies upon drawing 7019-11G for "further clarification of as-built levels". Parties should secure a copy of that drawing, consider the "important note" that limits the use to which that drawing can be put and whether the drawing is endorsed by a licensed surveyor.  The copy sighted by the writer is unsigned.

On p. 2 the certification of the as constructed drawings and asset register does not conform to the BCC precedent found at appendix M of the BCC Infrastructure Installation and Construction Requirements Manual, revision 4.0- February 2020 referred to in the header and footer of the certificate.  The signature block has been changed to include the words "insert name of consultant/licensed surveyor". The certificate is signed by an engineer, not a surveyor. Parties may wish to consider clause 9.1 of the manual including the reference to "As constructed information (drawings and asset register) is accurate and reflects the actual construction endorsed by a Licensed Surveyor".

Update 19.7.21: The developer has produced further certificates and drawings related to the work in approval A005498519.  There are trees approximately 6 metres from the stormwater line between inlet 2/D and the existing pit within 89 Palm Street, Kenmore.  A certificate dated 7.7.21 and a letter dated 16.7.21 relate to that line and trees. People considering purchasing lots affected by these works, should obtain copies of these certificates, drawings and letter. 

The large site on the western side of the Oaks is zoned emerging community and may be developed for a wide range of purposes including townhouses.

The author cannot, and does not, provide legal advice in relation to these matters. Interested parties should secure their own advice The author owns land neighbouring this development.