Dang v Council of the City of Ryde

[2022] NSWLEC 1622

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dang v Council of the City of Ryde [2022] NSWLEC 1622

Hearing dates:

Conciliation conference on 27 September 2022 and 18 October 2022

Date of orders:

11 November 2022

Decision date:

11 November 2022

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

1) The appeal is upheld.

2) Consent is granted to Development Application LDA/2021/0003 for Torrens Title subdivision of, and the use of existing structures on, Lot 16 in Deposited Plan 25498, known as 128 Wicks Road, North Ryde NSW 2113, for the purposes of an attached dual occupancy, subject to the conditions in Annexure A.

Catchwords:

MODIFICATION APPLICATION – affordable rental housing – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 6.25, 8.7, 8.10, 8.11

Environmental Planning and Assessment Regulation 2000, cll 23, 55, 93

Land and Environment Court Act 1979 ss 17, 23, 34, 34AA

Local Government Act 1993

Ryde Local Environmental Plan 2014 cll 4.3A, 4.4, 6.1, 6.2, 6.4

State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 4, 6, 10, 13, 15, 16A, 17, 18

State Environmental Planning Policy (Building sustainability Index: BASIX) 2004

State Environmental Planning Policy (Housing) 2021 Sch 7 cl 2

State Environmental Planning Policy (Infrastructure) 2007 cl 101

State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6

Statement Environmental Planning Policy (Transport and Infrastructure) 2021 Sch 12 Ch 5

Texts Cited:

Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004

Category:

Principal judgment

Parties:

Jenny Dang (Applicant)
Council of the City of Ryde (Respondent)

Representation:

Counsel:
R White (Applicant)
Dr S Berveling (Respondent)

Solicitors:
Delana Legal Pty Ltd (Applicant)
City of Ryde Council (Respondent)

File Number(s):

2022/148202

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the Respondent’s refusal of Development Application No. LDA2021/0003 (the DA) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) in relation to all that piece or parcel of land in Lot 16 Deposited Plan 25498 known as 128 Wicks Road, North Ryde NSW 2113 (the Site).

1. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

2. The statutory power or function to be exercised in determining the proceedings is s 4.16(1)(a) of the EPA Act and s 34(3)(a) and (b) of the LEC Act.

3. The DA seeks consent to alterations to existing house and secondary dwelling to create a dual occupancy (attached) and Torrens Title subdivision pursuant to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) in relation to the Site.

4. The key changes proposed for the dual occupancy (attached) conversion include internal fire-rated walls to close off the enclosed two-level ‘passageways’ that currently connects the two ‘wings’ of the building, the creation of an internal stairway and the creation of a doorway from a stairway to the proposed ground floor living and dining room of 128A Wicks Road. The ground level part of the passageway either side of the fire-rated wall is to consist of alcoves, while the first-floor areas within the passageway are to be removed and converted to voids.

5. A new stairway will occupy a void connecting Levels 1 and 2 within the southeast wing of the building, which is proposed to be occupied by the dwelling identified as 128A Wicks Road.

6. The Site area is 563.1m², based on the submitted survey plan, noting that it is 556.4m² on the title.

7. The Site is located on the northeastern side of the intersection of Wicks Road and Barr Street. The intersection of Wicks Road and Epping Road is located approximately 155m northeast of the subject site.

8. The southwest side of Epping Road in the vicinity of the Site is predominately characterised by single and two storey dwelling houses. Some isolated sites along Wicks Road (e.g. 96, 107 and 122-124) contain non-residential activities (e.g. petrol station, dental clinic and restaurant respectively), and a B1-zoned block (encompassed by Barr Street, Avon Road, Cam Street and Cam Lane) approximately 60m to the northwest contains a variety of commercial and retail land uses.

9. Adjoining the Site to the northeast and northwest are residential allotments containing dwelling houses.

2. Proceedings No. 2022/00189162 being Falamaki v Council of the City of Ryde are related to the current proceedings (Related Proceedings), and these proceedings and the Related Proceedings have been run concurrently, with both proceeding participating in a s 34AA of the LEC Act in a conciliation conference and hearing. On the first day of the hearing on 27 September at the parties’ request the s 34AA conciliation and conference was terminated, and the Court appointed me to preside over a s 34(1) conciliation conference. The s 34 conciliation conference was held on 23 September 2022, 27 September 2022 and 18 October 2022.

3. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 27 September 2022 and 18 October 2022. I presided over the conciliation conference.

4. At or after the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal and granting consent to the DA, as amended, for Torrens Title subdivision of, and the use of existing structure on, the Site for the purposes of a dual occupancy (attached) subject to the conditions contained in Annexure A.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16(1)(a) of the EPA Act to grant consent to the DA subject to conditions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be as set out below and explained how the jurisdictional prerequisites have been satisfied:

1. The DA seeks consent for the dual occupancy comprising 128 (fronting the secondary road of Barr Street) and 128A Wicks Road, North Ryde. The dwelling known as 128A Wicks Road (which comprises approximately 69.8m² of Gross Floor Area (GFA)) will be used for affordable housing (as defined by cl 6 of the SEPP ARH). The percentage of GFA of the development to be used for the purposes of affordable housing exceeds the required 20%.

2. On 5 January 2021 the DA was lodged with the Respondent. Council refused to grant the DA on 21 May 2021. The appeal to the Court was made pursuant to s 8.7 of the EPA Act on 23 May 2022, and in accordance with ss 8.10 and 8.11 of the EPA Act.

3. In the Related Proceedings Mr Falamaki is appealing the deemed refusal of Building Information Certificate BC2022/0023. In the Related Proceedings, Mr Falamaki and the Respondent have entered into a s 34(3)(a) Agreement dated filed 24 October 2022 by which Mr Falamaki’s appeal is upheld after the Court agreeing to substitute Building Information Certificate No. BC 2022/0034 for BC2022/0023. The Respondent issued a Building Information Certificate for the existing building (comprising a house and secondary dwelling) in respect of BIC Application BC 2022/0034 during the Conciliation Conference on 18 October 2022.

4. The grant of the BIC has the effect that Council is prevented from making an order (or taking proceedings for the making of an order or injunction) under the EPA Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt (s 6.25(3) of the EPA Act) in relation to matters existing or occurring before the date of issue of the BIC.

5. Since the DA was lodged with the Respondent on 5 January 2021, State Environmental Planning Policy (Housing) 2021 (Housing SEPP) was gazetted. The Housing SEPP commenced on 26 November 2021, and relevantly repealed SEPP ARH. Pursuant to the savings and transitional provisions in cl 2 of Sch 7 of SEPP Housing, that SEPP does not apply to development applications lodged but not yet determined on or before the commencement date, and repealed instruments (such as SEPP ARH), as in force immediately before its repeal, continue to apply.

6. The Site is within the R2 Low Density Residential Zone of the Ryde Local Environmental Plan 2014 (Ryde LEP 2014). Dual Occupancies (attached) are permissible within the R2 Zone.

7. The DA was made pursuant to Pt 2 of the SEPP ARH. Clause 10 applies because:

1. the DA seeks consent for residential development (the definition of which includes dual occupancies: cl 10(2));

2. the development is permitted with consent under the Ryde LEP 2014;

3. the development is on land that does not contain a heritage item;

4. the percentage of the gross floor area of the development that is to be used for the purposes of affordable housing exceeds 20%; and

5. the development is within an accessible area, as defined by cl 4 of the SEPP ARH.

8. There is a floor space ratio (FSR) development standard pursuant to cl 4.4 of Ryde LEP 2014 which is 0.5:1 for the subject site. The development proposes an FSR of 0.619:1 which complies with the maximum FSR permitted pursuant to cl 13 of the SEPP ARH.

9. With respect to cl 15 of SEPP ARH, the parties agree that relevantly the Seniors Living Policy (Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004) Urban Design Guidelines for Infill Development has been taken into consideration to the extent to which it is consistent with SEPP ARH.

10. The compatibility of the design of the development with the character of the local area (cl 16A of SEPP ARH) has been considered. The parties agree that the design is compatible with the character of the local area.

11. With respect to cl 17 of SEPP ARH, the development consent is issued with a condition to the effect that:

1. the dwelling at 128A Wicks Road (being the proposed affordable housing dwelling) will be used for the purposes of affordable housing for 10 years from the date of the issue of any occupation certificate (condition 60(a) in Annexure A);

2. the accommodation to be used for affordable housing will be managed by a registered community housing provider (condition 60(a)(ii) in Annexure A); and

3. a restriction will be registered, before the date of the issue of the occupation certificate, against the title of the property, in accordance with s 88E of the Conveyancing Act 1919 (condition 60(b) of Annexure A).

12. The parties agree that the requirements of cl 17 of the SEPP ARH have thus been met.

13. Clause 18 of the SEPP ARH permits subdivision of the land with the consent of the consent authority. Development consent is granted for the Torrens Title subdivision of the land once the development, the subject of the DA, has been carried out (conditions 74-78 of Annexure A).

14. The DA was accompanied by a Stormwater Management Plan. The parties agree that the development complies with the criteria for stormwater management in cl 6.4(3)(a)-(c) of the Ryde LEP 2014 (Stormwater Plans prepared by Abcon Engineering dated 5/10/22 drawing no.’s C00, C01-C05).

15. The DA amending plans and documents were accompanied by 2 complying BASIX certificates (Certificates no. 134603S and 1343732S dated 6/10/22) demonstrating a commitment to thermal and water efficiency. The parties agree that the BASIX Certificates number 1343603S and 1343732S dated 6 October 2022 satisfies the requirements of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

16. The parties have considered whether the land is contaminated. The DA was accompanied by a Statement of Environmental Effects (SEE) dated 16 December 2020 which stated that the Site has a history of being used for residential development. In those circumstances the Site is unlikely to be contaminated. Given that the DA proposes a continuation of use of the land for residential accommodation, no report pursuant to cl 4.6(2) State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience & Hazards SEPP) is required. The parties agree that the requirements in cl 4.6 of that Resilience & Hazards SEPP have been met.

17. The development Site contains a frontage to Wicks Road, which is a classified road. The proposal retains the existing vehicular access (including crossover) and location of garages and the consent authority is satisfied that the access is suitable and that the safety efficiency and ongoing operation of Wicks Road will not be adversely affected by the development. The proposal is not identified as traffic generating development and the proposal is not required to be referred to the RMS for comment. The parties are satisfied that the relevant requirements of cl 101 has been met.

18. The State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) cl 101 has been met. The Infrastructure SEPP was replaced with State Environmental Planning Policy (Transport and Infrastructure) 2021 which commenced on 2 December 2021, and by Sch 12, Ch 5 it provides that development applications lodged prior to that date, and not determined by that date, will be considered under the Infrastructure SEPP.

19. The parties are satisfied that the building complies (or will comply when completed) with the applicable Category 1 fire safety provisions. Clause 93 of the Environmental Planning Act Regulation 2000 (EPA Regulation 2000) is therefore met.

20. In relation to various clauses of the Ryde LEP 2014:

1. There is a height of buildings development standard pursuant to cl 4.3A(2) of 9.5m. The proposed development complies with this height limit.

2. The parties note that the land is not shown on the Acid Sulphate Soils Map as being in or near any of the classes of land specified in cl 6.1.

3. The parties have taken into consideration the relevant factors pursuant to cl 6.2(3) (Earthworks) and conditions have been imposed accordingly.

4. The parties are satisfied that the development achieves the relevant requirements of cl 6.4(3) (Stormwater Management) and conditions have been imposed accordingly.

21. The DA was notified in accordance with the Respondent’s Community Participation Plan and Procedure, between 14 January 2021 and 4 February 2021. No submissions were received.

6. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

1. The Environmental Planning and Assessment Regulation 2021 was enacted on 1 March 2022, and the EPA Regulation repealed, except for the Savings provision in Sch 6, Pt 1, cl 2 which provides that the EPA Regulation shall apply to any development application lodged prior to 1 March 2022. I am satisfied that Ms Dang is the owner of the Site and had the right to lodge the DA in accordance with cl 23 of the EPA Regulation 2000.

2. The Respondent refused the DA on 23 May 2021, and the Applicant filed an appeal in court on 8 July 2021 pursuant to ss 8.10 and 8.11 of the EPA Act.

3. In para [4] above the parties have demonstrated compliance have compliance with the jurisdictional prerequisites as set out in s 4.15(1)(a)-(e) of the EPA Act. I commenced the conciliation conference on the Site, noting there were no written objections to the DA, and nor did any of the public attend the commencement of the s 34(1) conciliation conference.

4. Taking into consideration the updated plans drawn by a surveyor, and the substituted Building Information Certificate No. BC2022/0034 (issued by the Respondent on 18 October 2022 within the s 34(1) conciliation conference process and to which I advised that I would grant leave for that substitution subject to Building Information Certificate No. BC2022/0034 being filed) I am satisfied that pursuant to s 4.16(1) of the EPA Act the DA appeal should be upheld and the DA granted subject to conditions in Annexure A.

7. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3)(a) and (b) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

8. The Court notes:

1. The Council of the City of Ryde as the relevant consent authority, has agreed under cl 55 of the EPA Regulation 2000 to the Applicant amending the DA with the following amended plans and documents (DA amending plans and documents) being the architectural plans prepared by Mahmoudreze Vahidi; the engineering plans prepared by Abcon: and the landscape plan prepared by Studio Botanica:

Document Description	Date	Plan No/Reference
GF – Proposed (DA)	06/10/2022	A302C, Rev. 5
L1/L2 – Proposed (DA	06/10/2022	A303C, Rev 5
Draft Torrens Title Subdivision Plan	06/10/2022	A303F, Rev 5
Elevations – North & South (Proposed)	06/10/2022	A306A Rev 5
Elevations – East & West (Proposed)	06/10/2022	A307A Rev 5
Section A	06/10/2022	A308, Rev 5
Section B (DA)	06/10/2022	A310, Rev 5
Demolition Plan	06/10/2022	A317, Rev 5
Waste Management Plan	06/10/2022	A318, Rev 5
Erosion & Sediment Control Plan	06/10/2022	A319, Rev 5
Landscape Plan	06/10/2022	SB_128WR_10, Issue N
Stormwater Notes	06/10/2022	C00, Rev C
Roof Plan with the Survey	05/10/2022	C01, Rev C
Roof Plan without the Survey	05/10/2022	C02, Rev C
Stormwater Details	05/10/2022	C03, Rev C
Unit A & Unit B RWT Details	05/10/2022	C04, Rev C
OSD & Bypass Areas Calculations	05/10/2022	C05, Rev C
Site Waste Minimisation and Management Plan (SWMMP)	16/12/2020
BASIX Certificates	06/10/2022	Certificates numbered 134603S and 1343732S

2. The DA amending documents were uploaded to the NSW Planning Portal on 18 October 2022.

3. The DA amending documents were filed with the Court on 20 October 2022.

4. This decision is to be read with the decision in Land and Environment Court of NSW’s proceedings No. 2022/189162.

9. The Court orders:

1. The appeal is upheld.

2. Pursuant to s 4.16 of the Environmental Planning and Assessment Act 1979 consent is granted to Development Application LDA/2021/0003 for Torrens Title subdivision of, and the use of existing structures on, Lot 16 in Deposited Plan 25498, known as 128 Wicks Road, North Ryde NSW 2113, for the purposes of an attached dual occupancy, subject to the conditions in Annexure A.

…………………………

M Peatman

Acting Commissioner of the Court
(Annexure A) (304052, pdf)

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Decision last updated: 11 November 2022