Falamaki v Council of the City of Ryde

[2022] NSWLEC 1601

Land and Environment Court

New South Wales

Medium Neutral Citation:

Falamaki v Council of the City of Ryde [2022] NSWLEC 1601

Hearing dates:

19 October 2022

Date of orders:

1 November 2022

Decision date:

01 November 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) A deferred commencement development consent is granted to development application No LDA2021/0407 for internal alterations to an existing building and associated change in use to a dual occupancy (attached) with the dedication of one of the dwellings that comprise the dual occupancy as affordable housing pursuant to cl 17 of the State Environmental Planning Policy (Affordable Rental Housing) 2009, together with Torrens title subdivision into two lots, at 5 Cooney Street, North Ryde, subject to the conditions of consent in Annexure A.

(3) Exhibits A and B are retained, and Exhibits 1-5 and C are returned.

Catchwords:

APPEAL – development application – internal alterations and change of use to dual occupancy – contentions resolved – deferred commencement consent

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 1.4, 4.15, 4.16, 6.4, 6.25, 6.26, 8.7

Environmental Planning and Assessment Regulation 2000, Sch 1

Land and Environment Court Act 1979 s 34AA

Ryde Local Environmental Plan 2014 cl 6.4

State Environmental Planning Policy (Affordable Rental Housing) 2009 Pt 2, Div 1, cll 10, 13, 14, 15, 16A, 17, 18

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

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Pts 2A, 3, cll 2A.1, 2A.3

Cases Cited:

F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306

Texts Cited:

Ryde Development Control Plan 2014

NSW Department of Planning, Seniors Living Policy: Urban Design Guidelines for Infill Development 2004

Category:

Principal judgment

Parties:

Sajjad Falamaki (Applicant)
Council of the City of Ryde (Respondent)

Representation:

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

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

File Number(s):

2022/160547

Publication restriction:

No

Judgment

1. COMMISSIONER: On 22 October 2020 an occupation certificate was issued for a dwelling house at 5 Cooney Street, North Ryde. The dwelling house was constructed following the issue of complying development certificates 2018/074/01 and 2018/074/02. Mr Falamaki now seeks development consent for the carrying out of internal alterations to the dwelling and to change the use of the dwelling to an attached dual occupancy, as well as for Torrens title subdivision of the land. He lodged a development application seeking the same with the Council of the City of Ryde (the Council) on 25 November 2021. The development application proposes that one of the dwellings that form part of the dual occupancy be used for the provision of affordable housing, pursuant to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The development application was refused by the Council on 13 May 2022. These proceedings are an appeal by Mr Falamaki against that decision, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The internal layout of the existing dwelling includes a central wall, the opposite sides of which are largely mirror images of each other. The central wall has a number of openings in it which provides connections between the different rooms. The proposed development is to enclose those openings in the central wall to create two attached dwellings that form the dual occupancy, and to construct a new level within the dwellings in the voids above the garage. The dwelling to the southeast side of the building (unit 5A) is proposed to be used for affordable housing. The proposed development also seeks to subdivide the land into two Torrens title lots, such that each dwelling that forms part of the dual occupancy is on its own Torrens title lot.

3. At the first directions hearing of the appeal, the Court made a determination that the proceedings are not to be dealt with under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) and listed the matter for a court hearing pursuant to s 34AA(4).

The Council’s position and the outcome of the appeal

4. Following the preparation of joint reports by the expert witnesses and the lodgement of a building information certificate application by Mr Falamaki, the Council now agrees that the contentions it raised on the appeal have been resolved, and that there are no contentions that remain outstanding.

5. I am nevertheless required to carry out an assessment under s 4.15 of the EPA Act to determine if it is appropriate to grant development consent. Section 4.15(1)(a) of the EPA Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, development control plan, and regulations. Section 4.15(1) also requires consideration of, inter alia, the likely impacts of the development, the suitability of the site for development, any submissions made by the local residents, and the public interest.

6. For the reasons that are set out below, I accept the parties’ position that each of the contentions raised by the Council have been resolved. I am also satisfied that each of the jurisdictional preconditions to the grant of development consent which has been identified by the parties, is met. The proposed development is permissible with consent, complies with the relevant development standards and has a design that is acceptable in its context.

The site and the locality

7. The site is known as 5 Cooney Street, North Ryde and is legally described as Lot 6 in DP 36487. It is 570m² with a frontage of 20.115m to Cooney Street, and narrows to a width of 15.24m at the rear boundary. The site has a fall of approximately 3.27m from the front boundary to the rear. The eastern part of the site contains a 1.83m wide easement for drainage purposes.

8. The site is located on the north-eastern side of Cooney Street, between Wicks Road to the southeast and Avon Road to the northwest. On the north-eastern side of Cooney Street, northwest and southeast of the site and along Avon Road, is predominantly single and two storey dwelling houses in addition to a number of dual occupancy developments including within the vicinity of the site at 1 Cooney Street, 60 Avon Road, 67 Avon Road and 76 Avon Road. On the other side of Cooney Street is a catholic school and church.

The history concerning the site

9. Complying Development Certificate 2018/074/01 (Council reference CDP2019/0435) was issued on 26 July 2019 for the construction of a dwelling house. This was later modified by Complying Development Certificate 2018/074/02 (Council reference Mod 2020/0063) on 3 April 2020. The modified complying development certificate approved a stairway connecting a small external landing on the southeast side of the building to the rear setback area.

10. The grant of CDC 2018/074/01 for the dwelling house was pursuant to Pt 2A of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP ECDC). Part 2A contained transitional provisions that allowed the General Housing Code to continue to apply, notwithstanding that it had been repealed. Clause 2A.1 provided:

2A.1 Housing that would have been complying development under repealed General Housing Code continues to be complying development

(1) Development specified for the General Housing Code as repealed by State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Housing Code) 2017 is also complying development for the purposes of this Policy if the development would have been complying development under this Policy as in force immediately before the repeal of that Code.

(2) Development carried out under this clause is taken (except for the purposes of clause 1.17) to be carried out under a complying development code to be known as the Transitional Housing Code.

11. Pursuant to cl 2A.3, Part 2A ceased to have effect on 13 July 2019. As such, the only provisions of the SEPP ECDC that specified the requirements for complying development for housing were contained within Part 3. The approval of CDC 2018/074/01 pursuant to Part 2A on 26 July 2019 occurred after Part 2A ceased to have effect. The Council therefore says that CDC 2018/074/01 is liable to be set aside.

12. On 22 October 2020, an occupation certificate was issued, which references 2018/074/02 as the consent to which the certificate relates. Pursuant to s 6.4(c) of the EPA Act, the occupation certificate is taken to be part of the development consent to which it relates. A development consent includes a complying development certificate (s 1.4 of the EPA Act).

13. Prior to the issue of the occupation certificate, Mr Falamaki lodged a development application similar to that which is now before the Court. It sought alterations to the existing dwelling to create a dual occupancy, together with strata subdivision. That development application was the subject of an appeal to the Court on 8 July 2020. On 18 January 2021, the appeal was discontinued on the basis that the development application was “fatally flawed” as, on the Council’s view, it would have been inappropriate for the Court to grant development consent for a change of use of a building when the building was not constructed pursuant to a lawful complying development certificate.

The planning framework

14. The site is zoned R2 - Low Density Residential pursuant to the Ryde Local Environmental Plan 2014 (RLEP 2014), and attached dual occupancies are a nominated permissible use in the R2 zone. The zone objectives, which are required to be considered in determining a development application, are as follows:

1 Objectives of zone

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for a variety of housing types.

15. The application relies on the provisions of the now repealed SEPP ARH, which continues to apply to development applications lodged before its repeal. Part 2 Division 1 of the SEPP ARH applies to in-fill affordable housing and includes dual occupancies. Clause 10(2) of the SEPP ARH provides that “this Division does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area”. The parties agree that the site is within an accessible area.

16. As a result of the application of Part 2 Division 1, cl 13 of the SEPP ARH allows an increase in the maximum floor space ratio (FSR) that applies to the proposal based on the portion of the development which is to be dedicated as affordable housing. Unit 5A is proposed to be dedicated for affordable housing and accounts for 46.9% of the gross floor area of the building. As such, the total FSR that is permissible on the site is 0.969:1, with which the building complies with a FSR of 0.61:1.

17. At cl 14 of the SEPP ARH, the policy sets out a number of grounds on which consent cannot be refused if certain criteria are met. It provides, at cl 14:

14 Standards that cannot be used to refuse consent

(1) Site and solar access requirements

A consent authority must not refuse consent to development to which this Division applies on any of the following grounds—

(a) (Repealed)

(b) site area

if the site area on which it is proposed to carry out the development is at least 450 square metres,

(c) landscaped area

if—

(i) in the case of a development application made by a social housing provider—at least 35 square metres of landscaped area per dwelling is provided, or

(ii) in any other case—at least 30 per cent of the site area is to be landscaped,

(d) deep soil zones

if, in relation to that part of the site area (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) that is not built on, paved or otherwise sealed—

(i) there is soil of a sufficient depth to support the growth of trees and shrubs on an area of not less than 15 per cent of the site area (the deep soil zone), and

(ii) each area forming part of the deep soil zone has a minimum dimension of 3 metres, and

(iii) if practicable, at least two-thirds of the deep soil zone is located at the rear of the site area,

(e) solar access

if living rooms and private open spaces for a minimum of 70 per cent of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter.

(2) General

A consent authority must not refuse consent to development to which this Division applies on any of the following grounds—

(a) parking

if—

(i) in the case of a development application made by a social housing provider for development on land in an accessible area—at least 0.4 parking spaces are provided for each dwelling containing 1 bedroom, at least 0.5 parking spaces are provided for each dwelling containing 2 bedrooms and at least 1 parking space is provided for each dwelling containing 3 or more bedrooms, or

(ii) in any other case—at least 0.5 parking spaces are provided for each dwelling containing 1 bedroom, at least 1 parking space is provided for each dwelling containing 2 bedrooms and at least 1.5 parking spaces are provided for each dwelling containing 3 or more bedrooms,

(b) dwelling size

if each dwelling has a gross floor area of at least—

(i) 35 square metres in the case of a bedsitter or studio, or

(ii) 50 square metres in the case of a dwelling having 1 bedroom, or

(iii) 70 square metres in the case of a dwelling having 2 bedrooms, or

(iv) 95 square metres in the case of a dwelling having 3 or more bedrooms.

18. Based on the Statement of Environmental Effects dated 21 November 2021, the proposed development meets the specified minimums for each of these criteria, and therefore cl 14 prevents me from refusing the application on any of those grounds.

19. Clause 15 of the SEPP ARH precludes consent from being granted unless the Court, in exercising the functions of the consent authority, has taken into consideration the Seniors Living Policy: Urban Design Guidelines for Infill Development. Based on the detailed supplementary joint report of the town planners filed on 20 October 2022, I have taken those guidelines into consideration.

20. Clause 16A of the SEPP ARH also prevents a consent authority from consenting to a development “unless it has taken into consideration whether the design of the development is compatible with the character of the local area.” As described above, the locality is characterised by one and two-storey residential development, including a number of attached dual occupancies. The parties agree, and I accept, that the design of the development is compatible with the character of the local area.

21. Clause 17 of the SEPP ARH precludes the grant of consent unless a condition is imposed that requires the nominated dwelling to be used for the purpose of affordable housing and that requires it to be managed by a registered community housing provider. The parties have agreed on a condition of development consent that satisfies the requirements of cl 17, which can be found in condition 4.

22. Clause 18 of the SEPP ARH permits the subdivision of land to which the division applies. As such, the Torrens title subdivision sought by the proposed development is permissible with development consent.

23. Part 3.3 of the Ryde Development Control Plan 2014 (RDCP) applies to the site and concerns dwellings and dual occupancy. Section 2.1 requires, at (a), that development “is to be consistent with the desired future character of the low density residential areas.” The desired future character is described in the following way:

“2.1 Desired Future Character

The desired future character of dwelling houses refers to the complete building, whether this is the result of the construction of a completely new house, or of an addition or alteration to an existing house.

The desired future character of the low density residential areas of the City of Ryde is one that:

• Has a low scale determined by a maximum 2 storey height limit;

• Has a low density with free-standing dwellings;

• Has a limited number of dual occupancy (attached) buildings, and these buildings look similar to detached dwellings;

• Has dwellings located in a landscape setting which includes a clearly defined front garden and back yard;

• Has buildings which are well designed and have a high degree of amenity;

• Has streetscapes made up of compatible buildings with regard to form, scale, proportions (including wall plate heights) and materials;

• Has streetscapes with dwellings that have a generally consistent front setback and consistent street orientation;

• Has garages and other structures which are not prominent elements in the streetscape and which are compatible with the character of the dwelling;

• Requires minimal disturbance to the natural topography, which means that excavation is to be minimised;

• Has backyards, which are maximised in size;

• Has backyards which form a connected strip of vegetation in neighbourhoods and which include large trees;

• Has allotments with large deep soil areas which allow rainwater to be absorbed and trees to be planted;

• Has mature trees in streets, front gardens and backyards (existing mature trees are retained and new tree plantings encouraged).”

24. Section 2.9.2 of Part 3.3 of the RDCP 2014 concerns side setbacks, and requires that dwellings are generally to be set back from the side boundaries “not less than 1.5m”. Section 2.9.3 concerns rear setbacks, and requires the rear of the dwelling to be set back “from the rear boundary a minimum distance of 25% of the length of the site or 8 m, whichever is the greater.” The existing dwelling, and the proposed dual occupancy, does not comply with the rear and side setback requirements. This is considered further below.

Issues raised on the appeal

25. A Statement of Facts and Contentions was filed by the Council on 4 July 2022, which raises a number of contentions that the Council now agrees are resolved. The contentions concern the lawfulness of the complying development certificate pursuant to which the dwelling was constructed (contention 1), the compatibility of the proposed development with the desired future character of the area (contention 2), residential amenity arising from privacy impacts (contention 3), and stormwater and floodplain management (contention 4).

Expert evidence

26. Expert opinion evidence on the town planning issues was given in a joint report by Mr Hussein Bazzi, a town planner engaged by Mr Falamaki, and Mr Ben Tesoreiro, a town planner engaged by the Council. They also prepared a supplementary joint report that was filed on 20 October 2022, which specifically deals with the Seniors Living Policy: Urban Design Guidelines for Infill Development, which is required to be considered pursuant to cl 15 of the SEPP ARH. In the supplementary joint report, they agree that the built form of the development has already been established and is largely unchanged by the proposal.

27. Expert opinion evidence on stormwater management was given in a joint report by Mr Abdul-Hadi Moussa, a civil engineer engaged by Mr Falamaki, and Mr Daniel Pearse, a development engineer employed by the Council.

Each of the contentions raised by the Council has been resolved

28. As a result of the evidence of the experts, the agreement that works will be carried out to obtain a building information certificate, and the deferred commencement condition that requires the issue of the building information certificate, each of the contentions raised by the Council on the appeal have been resolved.

Lawfulness of the existing building

29. The Council’s contention is that it is inappropriate for consent to be granted for a change of use of the building when “the basis of the lawfulness for the original building is incorrect”. This contention is advanced on the basis that CDC 2018/074/01 was granted on a legislative basis that no longer existed at the time it was granted. Although a development consent is considered valid unless and until declared otherwise by the Court (see F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306), the Council’s position is that this CDC is liable to be set aside. Further, the Council has identified a number of inconsistencies between what has been observed onsite (on 17 June 2022) and what was approved by CDC 2018/074/01 as modified.

29. The Council considers that this can be resolved through the issue of a building information certificate for the building as currently constructed. Pursuant to s 6.25(3) of the EPA Act, the building information certificate would operate to prevent the Council from taking proceedings to seek an order requiring the building to be demolished, altered, added to or rebuilt. The parties agree that a requirement for the issue of a building information certificate can be imposed as a deferred commencement condition, so that any building irregularities arising from the circumstances around the grant of the CDC 2018/074/01 and from inconsistencies between what is on site and what was approved can be resolved prior to the issue of a building information certificate and therefore prior to the operation of the consent for the proposed development.

30. An application for a building information certificate was made to the Council on 13 October 2022, supported by works as executed plans. Prior to the issue of building information certificate, the Council intends to send a notice of the works that are required done before the Council could issue a building information certificate, consistent with s 6.26(7) of the EPA Act. The Council, through Dr Berveling, indicated to the Court that the notice will include the requirement to provide flood protection for the existing garage area. Such work is required for the building as currently built, regardless of whether or not the proposed development is pursued.

31. Without making any finding that the course agreed upon by the parties is strictly necessary, I accept that the Council’s concerns with respect to both the validity of the CDC 2018/074/01 and the consistency of the current built form with what was approved can be allayed by the imposition of a deferred commencement condition requiring the issue of a building information certificate, as agreed by the parties. The building information certificate will prevent the Council from pursuing proceedings for the making of an order requiring the building to be demolished, altered, added to or rebuilt, the basis of which could arise through the circumstances around the issue of the CDC 2018/074/01 and if work has been carried out that requires development consent and goes beyond what was authorised by the CDC. The Court, exercising the functions of the consent authority, has power to impose such a condition pursuant to s 4.16(3) of the EPA Act. As a result of the parties’ agreement on the imposition of a deferred commencement condition of the type proposed, nothing raised by the Council in contention 1 warrants refusal of the development application.

Character and setbacks

33. The Council’s second contention is that the development is incompatible with the desired future character of the low density residential area, and does not meet the RDCP setback requirements.

34. Mr Bazzi and Mr Tesoreiro remained in disagreement on this point in their first joint report. Mr Bazzi opined that the building is well established in the local character of the area, and that the built form controls in relation to height and setbacks in the RDCP are irrelevant in circumstances where there are no proposed changes to these elements of the built form. Further, Mr Bazzi’s evidence is that the building remains two storeys in scale and presents as two storeys when viewed from the street, and that the rear and side setbacks result from the irregular shape of the allotment. Mr Tesoreiro’s evidence is instead that the building is three storeys at the rear, which is inconsistent with the RDCP and in the streetscape. He also points out that the 1.5m side setback control is not adhered to at multiple locations along the northwest side elevation, with the smallest side setback at 1.15m, and the building does not comply with the requirement for a rear setback between 8m and 9.5m.

35. However, the Council now concedes that the built form is consistent with the two-storey residential character of the local area, which comprises both dwelling houses and dual occupancies. Its position is that the existing setbacks do not cause an unacceptable adverse impact on visual privacy or solar access, and strict compliance with the setback controls is not necessary in circumstances where there is no adverse impact, the existing setbacks already exist in the current building and there are no changes proposed to the external built form.

36. Given that the proposed development is for internal alterations and a change of use, I accept Mr Bazzi’s evidence that the side and rear setbacks have limited relevance in circumstances where there is no change to the setbacks. I accept the Council’s position that although the reduced setbacks are undesirable, it is acceptable that they remain as they currently are in circumstances where they do not cause an adverse impact. Further, I accept Mr Bazzi’s evidence that the existing building presents as two storeys from the street, and I agree with the Council’s position that the built form is consistent with the two-storey residential character of the local area. For those reasons, I accept that the second contention raised by the Council is no longer in issue and nothing raised in that contention warrants refusal of the proposed development.

Residential amenity

37. The Council’s third contention is that the proposed development will give rise to overlooking opportunities, adversely affecting the visual privacy of neighbouring properties. In the particulars to this contention, the Council also raises solar access for the principal private open areas, overshadowing of adjoining properties, and internal connections within Unit 5.

38. Mr Bazzi and Mr Tesoreiro remained in disagreement on this point in their joint report. The main source of their disagreement is the adequacy of the plans. The Council’s position is now that the plans are adequate, and in the supplementary joint expert report Mr Bazzi and Mr Tesoreiro agree that the proposed and existing privacy screening prevents overlooking, there is adequate solar access and there is no issue concerning the internal connections within Unit 5.

39. I accept Mr Bazzi’s evidence that the plans are adequate to demonstrate that the solar access to the private open spaces is acceptable. Further, the proposed (and existing) privacy screening prevents any overlooking of neighbouring properties. Any overshadowing of the neighbouring developments already exists with the present built form and will not change as a result of the proposed development.

40. For those reasons, each of the matters raised by the Council in the third contention has been resolved and does not warrant refusal of the development application.

Stormwater and floodplain management

41. The Council also contended that the proposed development does not satisfy the engineering requirements relating to drainage and flooding. The issues raised within this contention concern: firstly, the protection of the basement from inundation in a probable maximum flood event, secondly, the lack of drainage from the covered paved areas at the rear of the dwellings, and thirdly, the existence of structures that encroach over the Council’s drainage easement.

42. In relation to the first and second issue identified above, the parties agree that these issues concern the building as currently in situ and are required to be resolved prior to the issue of a building information certificate. Mr Pearce has set out, in the joint report, how the first two issues can be resolved from the Council’s perspective. This includes providing an opening at the rear of each garage flush with the floor level, grading the sub-floor area so that it is flush with the rear of the garage and linearly graded to the level of the rear yard, filling the recessed paved area to be flush with the surrounding ground level, and providing an opening at the rear of the development at surface level to ensure the conveyance of flow through the area. Mr Falamaki has largely agreed to much of this work, and will be required to carry it out or carry out other works that achieve the same outcome, prior to the issue of a building information certificate. In circumstances where the issue of a building information certificate is the subject of a deferred commencement condition, these issues with the drainage of the building in situ will be resolved prior to the consent becoming operational. A condition of consent proposed by the parties then requires that the final works-as-executed stormwater management plan be submitted prior to the issue of an occupation certificate for the development.

43. In relation to the third issue identified above, Mr Moussa and Mr Pearse have agreed on conditions of consent that require encroaching retaining walls to be modified to timber sleeper retaining walls, with any piled footings to be located clear of the easement.

44. As a result of this evidence and the parties’ agreement that works to resolve the drainage of the garage and paved area need to be carried out prior to the issue of a building information certificate, the Council’s position is that none of the matters in this contention remain in dispute or warrant refusal of the development application. I accept that these matters are resolved through the course of action agreed to by the parties, which includes the issue of the building information certificate once the drainage works have been carried out to the Council’s satisfaction, the deferred commencement condition, the condition of consent requiring the final works works-as-executed stormwater management plan to be submitted prior to the occupation certificate, and the condition of consent requiring the modification of encroaching retaining walls. On that basis, the matters raised in this contention are all addressed through conditions of consent and do not warrant refusal of the proposed development.

Development consent should be granted

45. For the reasons expressed above, each of the contentions raised by the Council on the appeal has been addressed or do not warrant refusal of the proposed development. A final contention concerning the public interest focuses on the past conduct of Mr Falamaki and is not relevant to the merits of the proposed development, and, therefore, similarly does not warrant refusal of the development application. The Council accepts that it is appropriate for a deferred commencement consent to be granted in accordance with the conditions agreed by the parties.

46. The proposed development is permissible on the site, and complies with the standards that apply pursuant to the SEPP ARH. It also complies with the height development standard that arises pursuant to the RLEP, is compatible in its local streetscape context and does not cause any unacceptable impacts on neighbouring development. I have considered the contents of the parties’ agreed jurisdictional statement, together with the Class 1 Application and its attachments, and the evidence tendered at the hearing. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

47. Consistent with the requirements of Sch 1 of the Environmental Planning and Assessment Regulation 2000, the development application is accompanied by the BASIX certificate dated 22 November 2021.

48. Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Given the history of the use of the site for residential purposes, and that the development application proposes a continuation of the use of the land for residential accommodation, the site is unlikely to be contaminated and a report pursuant to cl 4.6(2) is not required.

49. Further, based on the stormwater drainage plan, the agreement of the engineers and the agreement that drainage works will be carried out prior to the grant of a building information certificate, I am satisfied of the matters in cl 6.4(3) of the RLEP.

50. Accordingly, I am satisfied that each of the jurisdictional preconditions identified by the parties is met and that there is power to grant development consent to the proposed development, and that it is appropriate to grant consent in the circumstances, subject to the conditions agreed by the parties.

Final orders

51. The Court orders that:

1. The appeal is upheld.

2. A deferred commencement development consent is granted to development application No LDA2021/0407 for internal alterations to an existing building and associated change in use to a dual occupancy (attached) with the dedication of one of the dwellings that comprise the dual occupancy as affordable housing pursuant to cl 17 of the State Environmental Planning Policy (Affordable Rental Housing) 2009, together with Torrens title subdivision into two lots, at 5 Cooney Street, North Ryde, subject to the conditions of consent in Annexure A.

3. Exhibits A and B are retained, and Exhibits 1-5 and C are returned.

…………………………

J Gray

Acting Commissioner of the CourtAnnexure A (230530, pdf)

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Decision last updated: 01 November 2022