Ibrahim v Council of the City of Ryde

[2024] NSWLEC 1315

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ibrahim v Council of the City of Ryde [2024] NSWLEC 1315

Hearing dates:

Conciliation Conference 5, 23 April 2024

Date of orders:

12 June 2024

Decision date:

12 June 2024

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent to LDA 2021/12 is modified in the terms in Annexure A.

(3) Development Consent No LDA 2021/12 as modified by the Court is set out in Annexure B.

Catchwords:

APPEAL – Modification Application – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9, 8.10, 8.14

Land and Environment Court Act 1979, ss 17, 34

Environmental Planning and Assessment Regulation 2021, s 113

Ryde Local Environmental Plan 2014, cl 6.4

Texts Cited:

Ryde Development Control Plan 2014

Category:

Principal judgment

Parties:

Matthew Ibrahim (Applicant)
Council of the City of Ryde (Respondent)

Representation:

Counsel:
B Salon (Solicitor) (Applicant)
M Chillari (Solicitor) (Respondent)

Solicitors:
ZBA Lawyers (Applicant)
Council of the City of Ryde (Respondent)

File Number(s):

2023/354858

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s refusal of the applicant’s modification application seeking to modify Development Consent LDA2021/0012 (Original Consent). The Original Consent was granted by the respondent on 29 March 2021 and approved the relocation of the respondent’s existing stormwater asset (easement and pipe) to run parallel to the south-western boundary of the property and relocation of the existing Sydney Water sewer pipe on Lot 2 in Deposited Plan 526318, known as 4 Stanley Street, Putney (Site). The modification application the subject of this appeal (MOD2023/0061) seeks to amend the Original Consent by replacing and encasing the Sydney Water pipe in its existing location, constructing a new pier and bridge structure over the Sydney Water pipe and relocating the respondent’s new stormwater pipe over the structure (Modification Application).

2. The Site contains an existing residential dwelling which was not sought to be altered by either the Original Consent or Modification Application.

3. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act.

The Modification Application

4. On 3 April 2023, the Modification Application was lodged with the respondent pursuant to s 4.55(2) of the EPA Act.

5. On 5 July 2023, the respondent refused the Modification Application.

6. On 8 November 2023, the applicant commenced these Class 1 proceedings under s 8.9 of the EPA Act in respect of the respondent’s refusal of its Modification Application.

7. The proceedings were commenced within the appeal period prescribed by s 8.10 of the EPA Act.

8. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties which was held on 5 and 23 April 2024. I presided over the conciliation conference.

The Amended Modification Application

9. At the conciliation conference, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. A s 34 agreement was provided on 10 May 2024 following the applicant amending its Modification Application with the respondent’s agreement. The agreed amendments to the Modification Application primarily include:

1. the provision of additional geotechnical, civil and structural engineering detail relating to the:

1. relocation and method of relocation of the respondent’s stormwater infrastructure; and

2. encasement, pier and bridge slab construction around and over the Sydney Water sewer asset; and

2. updated stormwater structural and design drawings.

3. (Amended Modification Application)

10. The decision agreed upon is for the grant of consent to the Amended Modification Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement dated 16 May 2024.

11. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Jurisdictional considerations

12. As the presiding Commissioner, I am satisfied that the decision is one 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 form this state of satisfaction on the basis of the following matters. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Owner’s Consent

13. The applicant is the registered proprietor of the Site.

EPA Act

14. The parties agree that the Amended Modification Application is made pursuant to s 4.55(2) of the EPA Act. I am satisfied that the development to which the Original Consent as modified relates is substantially the same development as the development for which the Original Consent was granted. This is because the primary change sought by the Amended Modification Application is the relocation of existing stormwater infrastructure (and associated easement) from running parallel to Sydney Water’s existing sewer infrastructure (and relocation of that Sydney Water infrastructure) to replacing and encasing the Sydney Water pipe in its existing location along the south-western boundary of the Site and running the stormwater infrastructure and associated easement on top of the encased Sydney Water pipe.

15. The impacts associated with the Amended Modification Application do not materially differ to the impacts associated with the development granted by the Original Consent and there will be negligible visible difference above ground.

16. Section 4.55(2)(b) of the EPA Act does not apply to this matter.

17. In relation to s 4.55(2)(c), the respondent has confirmed that the Modification Application as lodged was notified in accordance with relevant requirements.

18. In relation to s 4.55(2)(d), no submissions were received as part of the notification process.

19. In respect of s 4.55(3), in determining the Amended Modification Application, I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the Amended Modification Application.

20. Finally, for the purposes of s 4.55(3), in determining the Amended Modification Application, I have considered the reasons given by the respondent in relation to the grant of the Original Consent, including that the proposal was:

1. consistent with the objectives for R2 zoned land;

2. complied with the statutory provisions set out in the EPA Act;

3. considered to be low impact to adjoining properties and surrounding environment; and

4. not contrary to the public interest.

Ryde Local Environmental Plan 2014

21. The Site is zoned R2 Low Density Residential under the Ryde Local Environmental Plan 2014 (RLEP). Accordingly, the Amended Modification Application is permissible with consent in the R2 zone.

22. The parties agree that cl 6.4 of the RLEP is relevant to the determination of the Amended Modification Application. Clause 6.4 relevantly provides that development consent must not be granted to development unless the consent authority is satisfied that the development:

1. is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

2. includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

3. avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonable avoided, minimises and mitigates the impact.

23. The parties relevantly agree that:

1. Clause 6.4(3)(a) is satisfied or not applicable as the Amended Modification Application does not alter the quantum of water permeable surfaces on the land;

2. Clause 6.4(3)(b) is satisfied or not applicable as the Amended Modification Application does not involve or provide an opportunity to utilise on-site stormwater retention; and

3. Clause 6.4(3)(c) is satisfied as the Amended Modification Application avoids any adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters.

24. Having regard to the position of the parties, I am satisfied of the matters listed in cl 6.4 of the RLEP.

Ryde Development Control Plan 2014

25. The parties agree that the relevant provisions of the Ryde Development Control Plan 2014 have been taken into consideration in the assessment of the Modification Application.

Conclusion

26. 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.

27. The Court notes that:

1. The respondent, as the relevant consent authority, has agreed under s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) to the applicant amending Modification Application 2023/0061 in accordance with the following documents:

Item

Date

Preliminary Acid Sulfate Soil Assessment Report (ref TET 4106 – GEO AA) prepared by CSTS   

9 March 2021

Special Assessment Report (ref G2116) prepared by Gemstrux Consulting Engineers

3 September 2021

Stormwater Structural Drawings (ref GC20112) prepared by GEBA Consulting:

• S1 Rev E – Cover Page

• S2 Rev E – Easement Layout Plan

• S3 Rev E – Stormwater Pit Details

• S4 Rev E – Sections and Details

• S5 Rev E – Sewer Sections

• S6 Rev E – Sewer Sections

• S7 Rev E – Sewer Sections

• S8 Rev E – Sewer Sections

6 December 2021

Engineering Peer Review Letter on Stormwater Design prepared by Jo Civil Engineering Services

15 February 2024

Sydney Water TapIn Approval Requirements Letter prepared by Burton and Field Pty Ltd

29 February 2024

Stormwater Design Drawings (ref GC20112.1) prepared by GEBA Consulting:

• SW-01 Rev I – Cover Sheet and Specs

• SW-02 Rev I – Site Stormwater Plan

• SW-03 Rev I – Details Sheet 1

• SW-04 Rev I – Details Sheet 2

27 March 2024

Geotechnical Engineering Letter (ref TETB 16-GEO AA), prepared by Greywacke Geotechnics

11 April 2024

Structural Design Certificate (ref GC20112.1-STC1), prepared by GEBA Consulting

12 April 2024

2. The applicant is not required to lodge the Amended Modification Application on the NSW Planning Portal pursuant to s 113(6) of the EPA Regulation.

3. The Amended Modification Application was filed on 10 May 2024.

Orders

28. The Court orders that:

1. The appeal is upheld.

2. Development Consent to LDA 2021/12 is modified in the terms in Annexure A.

3. Development Consent No LDA 2021/12 as modified by the Court is set out in Annexure B.

……………………….

N Targett

Acting Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 12 June 2024