Deng v Council of the City of Ryde

[2020] NSWLEC 1207

Land and Environment Court

New South Wales

Medium Neutral Citation:	Deng v Council of the City of Ryde [2020] NSWLEC 1207
Hearing dates:	Conciliation conference on 1 May 2020
Date of orders:	07 May 2020
Decision date:	07 May 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1)   The applicant is granted leave to amend their development application in accordance with the plans referred to in Condition 1 of Annexure “A”. (2)   The appeal is upheld. (3) Development Application No. LDA2018/0392 for a multi dwelling development comprising the retention of the existing two storey dwelling and construction of three attached townhouses pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 is approved subject to the conditions set out in Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – multi-dwelling housing – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Ryde Local Environmental Plan 2014 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 55— Remediation of Land
Category:	Principal judgment
Parties:	Qing Rong Deng (Applicant) Council of the City of Ryde (Respondent)
Representation:	Counsel: G McKee (Solicitor) (Applicant) P Kapetas (Solicitor) (Respondent)   Solicitors: McKees Legal Solutions (Applicant) Council of the City of Ryde (Respondent)
File Number(s):	2019/56496
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal concerns a development application for multi-dwelling housing containing four dwellings at 34 Clanalpine Street, Eastwood. The development application seeks to construct an additional three dwellings attached to an existing two storey dwelling on the site, so as to form four attached townhouses. The development application is made under the State Environmental Planning Policy – Affordable Rental Housing 2009 (“SEPP ARH”), with the provision of one dwelling for the provision of affordable housing as defined by the SEPP ARH. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 1 May 2020. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amendments to the development application retain the dwelling that already exists on the site, and reduces the extent of the second storey in the additional dwellings such that a second storey is only for bedrooms within dormer windows on Units 2 and 3.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The site is zoned R2 Low Density Residential under the Ryde Local Environmental Plan 2014 (“RLEP 2014”), and multi-dwelling housing is a permissible land use within the zone.

• The site is located in an accessible area, as defined in cl 10(2) of the SEPP ARH, and the development is permitted additional floor space pursuant to SEPP ARH as long as adequate floor space is used for affordable housing for a 10 year period. The use of Unit 2 for the purpose of affordable housing meets that requirement.

• I am satisfied that consent should be granted notwithstanding the contravention of the development standard for the maximum height of multi dwelling housing dwellings that do not have a road frontage. The development standard establishes a maximum height of 5m for such dwellings, pursuant to cl 4.3A(2) of the RLEP 2014. The proposed maximum height of Unit 2 is up to 1720mm above the numerical standard, and Unit 3 is up to 1295mm above the numerical standard. I am satisfied that the written request, dated 13 November 2019 and lodged pursuant to cl 4.6 of the RLEP 2014, adequately establishes sufficient environmental planning grounds that justify the breach in the development standard by demonstrating that the breach allows floor space that would otherwise be located at the front of the site to be placed at the rear of the site so as to allow the retention of the existing dwelling house with its existing presentation in the Heritage Conservation Area. That is, the retention of the existing dwelling house, which is a desired outcome for the site, limits the amount of floor space that can be accommodated within the area at the front of the site which has the larger height limit. Additional floor space is then pushed further to the rear of the site at the first floor level, in breach of the development standard. An additional environmental planning ground is that the extent of the proposed non-compliance is also, in part, justified by the need to raise the level of units 2 and 3 to minimise impacts on a tree located on the adjoining property. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. The breach is confined to units 2 and 3 only, which are designed with the upper bedroom levels wholly contained within a pitched roof, to be compatible with the character of the locality. Further, I am satisfied, based on the content of the request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• The development does not contravene any other development standard in the RLEP 2014 or any other applicable environmental planning instrument.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. As the site has a history of use for the purposes of a dwelling house, it is unlikely to be contaminated.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court orders that:

1. The applicant is granted leave to amend their development application in accordance with the plans referred to in Condition 1 of Annexure “A”.

2. The appeal is upheld.

3. Development Application No. LDA2018/0392 for a multi dwelling development comprising the retention of the existing two storey dwelling and construction of three attached townhouses pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 is approved subject to the conditions set out in Annexure “A”.

………………………

J Gray

Commissioner of the Court

Annexure A (123 KB)

Plans (2.42 MB)

**********

Decision last updated: 07 May 2020