Council given deadline

PORT Stephens Council has been given a 5pm Wednesday deadline to withdraw a key defence document in its multi-million dollar battle over drainage at a Nelson Bay housing estate after its own barrister conceded in court there was “a question as to whether it remains a live issue”.
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The concession came during a hearing in the NSW Supreme Court on March 17 afterJustice Michael Pembroke noted the council’s reliance on a 2011 document as a defence “appears difficult to maintain”.

In a letter on March 30 Lagoons Estate developer David Vitnell gave the council until 5pm Wednesday to withdraw the document –a 2011 deed of agreement between a previous Lagoons Estate owner and the council in which the previous owner agreed not to take any further legal action against the council over drainage issues.

Mr Vitnell, who launched Supreme Court against the council in November in an attempt to force it to carry out drainage works it was ordered by the NSW Court of Appeal to undertake in 2006, said the deed was not a valid defence for the council to make because he was not involved with the 2011 agreement.

“Your client would appear to have no prospect of success,” he advised the council’s solicitor on March 30.

Not happy: Lagoons Estate residents (from left) Bill Park, George Pagacs, Gloria Grayson, Randall Grayson, Ron Ricketts and Roy Johnson.

Mr Vitnell warned the council he would seek to have the deed of agreement struck out of the council’s defence if the council did not withdraw it by 5pm on Wednesday.

The likely withdrawal of the deed of agreement leaves the council arguing it has complied with the 2006 Court of Appeal orders. This gave the council 18 months to complete drainage works tostop stormwater from nearby Dowling Street and adjoining Seabreeze housing estate from running across Lagoons estate into the lagoon that gave the estate its name.

But the council faces difficulties after three water engineers in relatedNSW Land and Environment Court proceedings in March 2015, including the council’sexpert, said the Court of Appeal decision required drainage works where “therewould be no drainage surface water directly to” the Lagoons Estate, except in an extreme rainfall event.

On March 17 Justice Pembroke directedMr Vitnell and the council to agree on an expert to determine if surface water flows from Dowling Street and the Seabreeze estate to the Lagoons estate, or he would appoint one.

Justice Pembroke told the court he was “a little troubled by the (council’s) attitude in general”, after the council argued against the need for an expert opinion about the surface water before other issues raised by Mr Vitnell and the council were settled.

In a statement of claim lodged against Port Stephens Council in November Mr Vitnell sought a declaration that $1.3 million in drainage works undertaken by the council after the 2006 Court of Appeal decision had failed to stop stormwater containing high levels of nutrients and waste from entering Lagoons estate and ending in the lagoon.

He also sought an order that the council complete required drainage works –costed at between $4 million and more than $30 million –within 12 months of a decision, and a declaration that further on-site works at Lagoons estate were not needed because their purpose was to cope with stormwater from outside the estate.

The cost of works to repair damage from significant stormwater runoff alleged to have entered the estate was more than $120,000, Mr Vitnell said in the statement of claim.

His evidence will include a March report by water hydrologist Drew Bewsher concluding that “very significant surface runoff volumes were being diverted onto Lagoons estate” from Dowling Street outside the estate, and the adjoining Seabreeze estate.

This included significant surface runoff after a January 5 rain event he described as “not particularly heavy rainfall”.

“In my opinion the presence of stormwater runoff entering the Lagoons estate on at least three occasions in the past 12 months indicates the council has not complied with the (2006) court order,” Mr Bewsher wrote.

The council drainage works, thatattempted to collect runoff from roads and footpaths and infiltrate it into the ground without causing surface discharges, would have complied with the court order if it had been successful.

He concluded the design of the drainage works, construction, maintenance, or a combination of the three, meant the works had not succeeded in stopping surface water from entering Lagoons estate.

Port Stephens Council general manager Wayne Wallis and mayor Bruce Mackenzie did not respond to questions last week about Mr Vitnell’s action against the council. The Newcastle Herald has sought responses from the council to the 5pm Wednesday deadline.

Councillor Geoff Dingle, who last week said the Lagoons case had so far cost the council $9 million over years of court proceedings and drainageworks, called on other Port Stephens councillors to ask questions about the council’s handling of the case.

“This is a very serious case. We’ve been provided with little detail where it’s going and the risk ratepayers currently face, and I’m concerned councillors have no idea what’s potentially coming down the line.”

Cr Dingle said estimates in 2006 of the need for many millions of dollars to complete the drainage works were a major concern for the council if it lost the case, and his own experience of the volumes of water that entered the estate left him extremely concerned.

“We’re always told Port Stephens is a rich council. We might be asset rich but if we all of a sudden have to find millions of dollars to complete these works, that’s a very serious problem,” he said.

Lagoons estate residents who have joined Mr Vitnell in the action against the council say the nutrient-rich stormwater entering the lagoon was a serious environmental concern.

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