Do v City of Ryde Council

[2019] NSWLEC 1536

Land and Environment Court

New South Wales

Medium Neutral Citation:	Do v City of Ryde Council [2019] NSWLEC 1536
Hearing dates:	Conciliation conference on 6 September 2019; 21 October 2019
Date of orders:	05 November 2019
Decision date:	05 November 2019
Jurisdiction:	Class 1
Before:	Blakely AC
Decision:	The Court orders that: (1)   Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure A. (2)   The appeal in respect of Land and Environment Court proceedings 18581 of 2019 is upheld. (3)   Development Application DA2018/0224 to demolish the existing dwelling and construct a 12 room boarding house with vehicular parking for 6 cars and motor bike parking for 3 bikes and associated site works at 7 Balaclava Road, Eastwood is approved subject to the conditions at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – boarding houses – traditional housing design – neighbourhood residential density – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Ryde Local Environmental Plan 2012 State Environmental Planning Policy (Affordable Rental Housing) 2009
Texts Cited:	Ryde Development Control Plan 2012
Category:	Principal judgment
Parties:	Huong Thu Do (Applicant) City of Ryde Council (Respondent)
Representation:	Counsel: A Boskovitz (Solicitor) (Applicant) P Kapetas (Solicitor) (Respondent)   Solicitors: Boskovitz Lawyers (Applicant) City of Ryde Council (Respondent)
File Number(s):	2019/18581
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Huong Thu Do against Ryde Council for the demolition of existing building to construct a podium style 2 storey building with an open under croft parking area for 14 room, reduced to 12 (the applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Ryde Council of development application DA2018/0224 (the application).

2. The application seeks consent under the EPA Act for demolition of existing structures to construct a boarding house at 7 Balaclava Road, Eastwood LDA3018/0224. This is an area composed on very deep lots lending themselves to rear apartments, granny flats and small single storey homes on the rear lots which are both wide enough and deep enough to accommodate one or more additional dwellings. Balaclava Road is a major arterial roadway carrying substantial volumes of traffic day and night supporting bus and truck movements between Macquarie Park and Parramatta. It is a major route to the Eastwood Shopping Centre and carries substantial bus traffic.

3. The Council refused consent on grounds the proposed boarding house failed to meet Council Ryde Local Environmental Plan 2012 (LEP) and the Ryde Development Control Plan 2012, with respect to the size of the building, and internal amenity of the complex.

4. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties on 23 October 2019.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

6. At the conciliation conference, the Council raised several contentions such as the overall size of the development particularly the numbers of residents, on and off-street parking, overshadowing and privacy issues as well as the noise that emanates from a facility of this size located in a quiet residential neighbourhood.

7. Residents on the site visit reinforced all the Council contentions. Moreover, residents raised further issues regarding serious traffic with respect to entrance and egress issues, as well as the impact of so many residents in a small space generating noise impacting neighbours.

8. The issues raised above were largely addressed through a reduction in size of the development and revisions in the under crofting along with noise fencing and re-arranged dwelling and parking combined improved landscaping along with improved residential amenity.

9. I concur with these approaches and I am satisfied that the design of the proposed development is consistent with the character of the local area as required by cl 30A of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). as illustrated by the applicant submission below;

Applicant’s proposed street appearance relating to community character

10. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders [15]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all the preconditions to the granting of consent have been met.

11. The LEC Act also requires me to set out in writing the terms of the decision (s 34(3)(b)). The orders made to give effect to the agreement meet that requirement.

12. 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. The Council has the authority under the LEP to agree to the revised plans.

13. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. Consequently, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

14. 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) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

15. The Court orders:

1. Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure A.

2. The appeal in respect of Land and Environment Court proceedings 18581 of 2019 is upheld.

3. Development Application DA2018/0224 to demolish the existing dwelling and construct a 12 room boarding house with vehicular parking for 6 cars and motor bike parking for 3 bikes and associated site works at 7 Balaclava Road, Eastwood is approved subject to the conditions at Annexure A.

………………………..

E Blakely

Acting Commissioner of the Court

Annexure A (426 KB)

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Decision last updated: 05 November 2019