Earlcore Pty Limited v Ryde City Council

[2006] NSWLEC 173

Land and Environment Court

of New South Wales

CITATION:	Earlcore Pty Limited v Ryde City Council [2006] NSWLEC 173
PARTIES:	APPLICANT: Earlcore Pty Limited RESPONDENT: Ryde City Council
FILE NUMBER(S):	11529 of 2005
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Site amalgamation Rear setback
LEGISLATION CITED:	Ryde Planning Scheme Ordinance 1979, (RPSO) Draft Ryde Local Environmental Plan No 143, (DLEP143) Draft Ryde Development Control Plan No 56, (DDCP56) Environmental Planning and Assessment Act 1979, ss79C and 97
CASES CITED:	Melissa Crech v Auburn Council [2004] NSWLEC 40 ; Winten Property Group Limited -v- North Sydney Council, NSWLEC 46
DATES OF HEARING:	06/04/2006
DATE OF JUDGMENT:	04/11/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr C C Gough, solicitor SOLICITORS: Storey & Gough RESPONDENT: Mr R K Graham, solicitor SOLICITORS: Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

11 April 2006

11529 of 2005 - Earlcore Pty Limited v Ryde City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Ryde City Council (the council) to refuse a development application to demolish the existing building, erect a residential flat building and to strata subdivide, at Lot 41, DP 9692, being No 1 William Street, Ryde.
2 I visited the land in company with the parties on the morning of the hearing and heard from local owners.
3 I have concluded that the application should succeed and approval is granted subject to conditions.

The land
4 The land is situated on the western side of William Street, Ryde, and has a frontage to William Street of about 14.48m and a depth of about 43.51m. The land slopes down away from William St towards the rear (western boundary).
5 The land has an area of about 669.4m2, based on the 1919 plan of subdivision in DP 9692. Erected on the land is a brick dwelling, two outbuildings and there are some significant trees on the land.
6 Nearby is Top Ryde town centre, and the land in the immediate vicinity is zoned residential. To the north at Nos 46-48 Blaxland Road is a doctor's surgery. This land is subject of development consent for a four-storey medical centre with eight x two-bedroom units above that was issued on 2 October 2001 and will lapse later this year. To the south at No 3 William Street, and across William Street at Nos 2-6 are three-storey residential flat buildings.
7 William St is a local road linking Blaxland Road in the north to Victoria Road in the south.

Relevant planning controls

Ryde Planning Scheme Ordinance 1979, (RPSO)
8 Under the provisions of the RPSO the land is zoned Residential 2(c5) and under cl 22 the proposal is permissible with consent. Nos 46-48 Blaxland Road is similarly zoned.
9 Under cl 46(4) of the RPSO:

(4) A residential flat building (other than a residential flat building Class A, villa homes or duplex buildings) shall not be erected on an allotment of land within the zone No 2(c5) …unless:
(a) …
(b) Where the allotment has frontage to any other road:
(i) it has an area of not less than 840m2; and
(ii) it is not less than 24 for metres wide at the front alignment of the building.

Residential Flat Building Code, (RFBCode)
10 Under cl 4.2.2 of the RFBCode the minimum site requirements for residential flat buildings reiterate those contained in cl 46(4) of the RPSO.
11 Under cl 4.4 of the RFBCode there is a general statement:

In exceptional circumstances council may exercise its discretion to vary the minimum site requirements under State Environmental Planning Policy No 1-development standards. In this regard it will be necessary for the applicant to submit with the development application a written objection that compliance with the particular development standard is unreasonable or unnecessary in the circumstances of the case, specifying the grounds of that objection.
Every effort should be made to consolidate properties which:
1. do not comply with these minimum site requirements, with adjoining undeveloped properties, zoned for residential flat development, to form sites which comply with the minimum requirements; or
2. with properties which would be isolated by a development proposal, in a situation where the isolated property would not comply with those requirements.

Draft Ryde Local Environmental Plan No 143, (DLEP143)
12 The DLEP143 has been certified under s 65 of the Environmental Planning and Assessment Act 1979, and has been publicly exhibited. Mr Grech determined that the gazettal of this instrument was “…likely and imminent”, [Note: Exhibit D, p 9]. The DLEP143 applies to the land.
13 The aims of this DLEP143 are:
(a) to introduce new zoning, planning and design provisions for the Ryde Town Centre, and
(b) to rezone land adjoining Ryde Park to Open Space (parks and recreation), and
(c) to encourage a mix of land uses within the Ryde Town Centre, and
(d) to encourage high quality design in all new development and within the public domain in the Ryde Town Centre, and
(e) to replace definitions of net useable floor area and storey in the Ryde Planning Scheme Ordinance.

14 Under this draft instrument performance standards take the place of prescriptive standards. So in the future there will not be any allotment standards and development on the land would be limited in height to four storeys. The land to the north, of the subject land at Nos 46-48 Blaxland Road would be limited to four storeys except if a public benefit is provided in the form of an access laneway and then the height limit would be five storeys. The access laneway is proposed on the southern side of Nos 46-48 and 50 Blaxland Road with a dogleg situated on No 52 Blaxland Road, Ryde.

Draft Ryde Development Control Plan No 56, (DDCP56)
15 The DDCP56 applies to the land and the proposal.

The proposal and its history
16 Development application No 82/05 was lodged with the respondent council on 7 February 2005 to erect a residential flat building on the land.
17 The proposal is to:

(a) Demolish the existing dwelling house and ancillary structures on the land.
(b) Erect a three-storey residential flat building containing 1x1 bedroom and 6x2 bedroom units and basement car parking for eight (8) resident cars and two (2) visitors in accordance with the requirements of the council.
(c) Strata subdivide the completed development.

Notification
18 The application was notified to nearby owners and occupants on 6 April 2005 and the council received four (4) submissions objecting to the proposed development during the statutory advertising period.
19 When the amended plans were received on 20 July 2005, adjoining owners and occupiers were notified on 30 August 2005 and the council received one submission during the statutory advertising period.

The council’s decision
20 By notice dated 13 December 2005, the council refused the application for reasons that are reflected in the issues.

The hearing
21 The appeal was filed on 20 December 2005.
22 Mr P A Grech was the Court-appointed town-planning expert. His report was Exhibit D and he concluded after the plans were amended that, [Note: Exhibit D, p 22]:

[T]he development would reasonably satisfy the objectives of the standards from which variations are sought. The issues raised by council relating to height of the building, and the car park level, in particular, and side and rear boundary setbacks, are adequately resolved by the amended plans. The variation from the density standard is clearly minor and would not warrant refusal of the application, in my view.
[O]n the assumption that sufficient evidence would be provided by the applicant, to conclusively demonstrate that amalgamation to create compliant lot size was not achievable, having regard to the planning principles set by the court. In my view, the evidence submitted for my consideration did indicate difficulties in site amalgamation, but did not provide conclusive evidence in accordance with the principles.

23 At the site inspection:
· Mr J Klepec, part owner of No 52 Blaxland Road, Ryde, gave evidence in respect of the setbacks of the proposal from the west; and
· Dr S Sawaqed, managing director of Samhil Pty Limited and owner of Nos 46-8 Blaxland Road, Ryde, gave evidence that he considered the proposal to be “…sub-standard” and the setbacks under the planning instrument should be respected. Dr Sawaqwed supported his objection with the report prepared by Mr A Ludvik of Ludvik And Associates Pty Limited.
· Mr N Temperley, with Mr Y Marokakis, resident of No 1/3 William Street on behalf of the owner’s corporation of No 3 William Street was concerned in relation to car parking and overshadowing.

The issues
24 On 23 January 2006, the council filed a statement of issues.
1. Whether the proposed development is satisfactory despite the non­compliance with the Ryde Planning Scheme in terms of site requirements (minimum allotment size and frontage) in clause 46.
2. Whether the proposed development is satisfactory despite the non-compliance with the Ryde Planning Scheme in terms of the density control in clause 55.
3. Whether the proposed development is satisfactory despite the non­compliance with Council's Residential Flat Building Code in terms of the height control in clause 7.
4. Whether the proposed development is satisfactory despite the non-compliance with Council's Residential Flat Building Code in terms of the side/rear setback controls in clause 8.
5. Whether the proposed development is satisfactory despite the non­compliance with Council's Residential Flat Building Code in terms of the height control for parking under buildings in clause 10.5.
6. Whether approval of the application is in the public interest, having regard to the submissions received by adjoining property owners.

25 The following emerged as the salient issues:
· Site amalgamation;
· Rear setback; and
· SEPP1 objection.

The evidence and findings

Site amalgamation
26 I accept the submission of Mr Gough, for the applicant, that the principles outlined in the decision of Brown C in Melissa Crech v Auburn Council [2004] NSWLEC 40 do not apply in the present case. Here, the proposal would not create an adjoining isolated lot as a result of development of the subject land. The subject land in itself could be seen, as being isolated, as a consequence of the council-granted approval, in October 2001, for a mixed-use development on land at 46-48 Blaxland Road.
27 Mr Graham, for the council, accepted that the authority of Melissa Grech dealt with the situation where development on the subject land caused an adjoining parcel of land to be isolated and he agreed, “…that can’t be argued here.”
28 I am satisfied that the site amalgamation issue would not be an impediment to approval of the application as the site itself was rendered isolated by the council’s consent. I am also satisfied that development may take place on the subject land that meets the spirit of the planning objectives relating to the land.

Rear setback
29 Mr Graham, accepted the evidence of the Court-appointed expert Mr Grech and that “…he has no major issue” with the present development application. He indicated that that he had no instructions to the contrary.
30 Despite being generally satisfied that the application is worthy of favourable consideration by the Court, Mr Grech gave evidence that there would be a non-compliance in respect of the rear western setback, [Note: Exhibit D, p 19]. Under cl 8.1 of the RFBCode the standard setback requirement is 6m, and for 50% of the wall-length of the elevation facing the boundary, the setback could be reduced to 3.0m. For a wall length of 3.3m the setback as proposed would be 3.5m and for the remainder of the wall the setback would be 4.5m.
31 Mr J Klepec, the owner of No 52 Blaxland Road, the land abutting the subject land to the west, gave evidence on site that he would prefer the proposal to be setback the required distance from the western boundary, so that in future, if he seeks to develop his land, possibly with nil setback to the boundary of the subject, there would be sufficient separation between the two buildings.
32 Having regard for Mr Klepec’s concerns, I invited the applicant to setback the proposal to the 4.5m setback line and a Juliette balcony be included in lieu of the ground floor projection that was proposed to be setback only 3.5m. The applicant agreed to this suggestion. Despite the 4.5m setback being less than the required 6m, 50% of the wall length could be as close as 3m. I consider the 4.5m setback to be reasonable in the circumstances of this case. I also took into account that under the DLEP143 the requirement for setbacks would be performance based and not prescribed and the height of the building could be as much as four storeys. I also had regard for the fact that under the DLEP143 any development on No 52 Blaxland Road if developed to its full potential would probably provide an access driveway along the western boundary of the subject land. If this driveway were open to the sky any future development on No 52 Blaxland Road, would be setback off the boundary, thereby increasing the separation between the two buildings.
33 The applicant also agreed to setback the top floor a further 1m from the western boundary.
34 Deferred commencement conditions were imposed to effect these changes to the setbacks.

SEPP1 objection
35 Mr Gough submitted that under the RPSO there is no requirement to amalgamate sites for residential flat buildings. However, there is a minimum allotment size of 840m2 and a minimum frontage width of 24m and the subject site does not meet those standards. However, as the applicant has provided a SEPP1 objection to address those non-compliances, he submitted the Court is empowered to consider the present application on its merits.
36 Mr Gough pointed to the fact that the RFBCode [Note: Exhibit 2, p 5] reiterated the provisions in cl 46 of the RPSO. He also pointed out that under cl 4.4 of the RFBCode there is the general statement that in exceptional circumstances the council, or the Court on appeal, may exercise its discretion to vary the minimum site requirements.
37 Mr Graham submitted that under the RPSO as the required minimum site area is 840m2 and the site area is 669.4m2 the departure from the standard would be around 170m2. He submitted that as the required minimum frontage width is 24m and the present frontage is 14.48m, the site would be around 9.5m deficient. He submitted these departures are significant, “…not minor and [are] of substance” when considered in the context of surrounding development. He submitted the relevant tests for determining whether an SEPP1 objection is well founded are found in Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001, at paras 22 – 26, and other authorities, and he was “…content to leave that, [consideration of the SEPP1 objection] to the court for determination.”
38 Mr Grech had analysed the SEPP1 objection against the minimum lot size standard under the heads of Winten, and concluded, “…the objection is well founded.” He noted, “…the site would be considered to have unusual site characteristics due to its size and has been assessed as acceptable by the SEPP65 Design Review Panel, and is an area where increased densities are desirable due to proximity to facilities and public transport,” [Note: Exhibit D, p 13]. I accept that evidence and consider the objection to be well founded.
39 For the above reasons, the appeal is upheld.

Other matters
40 Despite the concerns expressed by Mr Temperley on behalf of the owner’s corporation of No 3 William Street, concerning lack of car parking in the area, I am satisfied that this is not a reason for refusal of the application. Car parking is proposed in accordance with the council’s code and is considered by the Court-appointed town planner to be adequate. I accept that evidence.
41 Mr Temperley expressed concern in relation to overshadowing and the experts also carefully considered this. I would not refuse the application for this reason. I am satisfied that the overshadowing of No 3 William Street on the rear ground floor balconies would not be much greater, if at all, than that cast by the solid balustrades. Also, the overshadowing would be reduced slightly by the setting back of the top floor of the proposal as is conditioned.

Conditions
42 The conditions are those in Exhibit 6 as amended during the hearing.

Orders
43 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. The State Environmental Planning Policy No 1 objection to minimum site area and frontage width under the Ryde Planning Scheme Ordinance is upheld.

3. Development application No 82/05 lodged with the respondent council on 7 February 2005 to demolish the existing building, erect a residential flat building and to strata subdivide, at Lot 41, DP 9692 being No 1 William Street, Ryde, is approved subject to Conditions 1 to 78 in Annexure A.

4. The exhibits except for Exhibits B, C and 6 are returned.

S J Watts
Commissioner of the Court
sw

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at