JH Capital Pty Ltd v Council of the City of Ryde

[2022] NSWLEC 1111

Land and Environment Court

New South Wales

Medium Neutral Citation:

JH Capital Pty Ltd v Council of the City of Ryde [2022] NSWLEC 1111

Hearing dates:

Conciliation conference on 17 and 31 January 2022

Date of orders:

16 March 2022

Decision date:

16 March 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant’s clause 4.6 written request seeking to vary the height of the development standard under cl 4.3 of the Ryde Local Environmental Plan 2014, in relation to the 9.5m height control applying to the site, is upheld.

(2) The appeal is upheld.

(3) Development Application LDA2021/0271 for removal of tree and construction of a three (3) storey mixed use development, comprising one commercial suite and a 23 room boarding house, including managers room on land legally comprising of the allotment described as Lot B DP 396928, known as 2A Mellor Street, West Ryde, is approved subject to the conditions set out in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – boarding house development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Ryde Local Environmental Plan 2014, cll 2.3, 4.3, 4.4, 4.6, 6.2, 6.4, 6.7

State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 26

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Category:

Principal judgment

Parties:

JH Capital Pty Ltd (Applicant)
Council of the City of Ryde (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
M Chillari (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Council of the City of Ryde (Respondent)

File Number(s):

2021/272087

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 Appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Council of the City of Ryde (the Respondent) of Development Application No. LDA2021/0271 seeking consent for the demolition of existing structures, removal of trees, and construction of a three-storey mixed use development, containing one commercial suite and a boarding house for 58 boarders over basement car parking at No 2A Mellor Street, West Ryde.

2. On 17 January 2022, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided.

3. At the conciliation conference, the parties reached in-principle agreement on the matters in contention, subject to the resolution of certain issues which the parties’ advised me were capable of resolution. I adjourned the conference to allow the parties to continue to resolve those matters.

4. On 31 January 2022, I further adjourned the conciliation conference to permit the parties to finalise the terms of the agreement that was filed with the Court on 4 February 2022, in accordance with s 34(10) of the LEC Act. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

6. 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’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. The parties identified the jurisdictional prerequisites of relevance in these proceedings, including the provisions of the Ryde Local Environmental Plan 2014 (RLEP) and State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55).

8. I note here that while the proposed development is a boarding house, cl 26 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 excludes operation of the provisions in a B6 zone.

9. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

10. The site is located within the B6 Enterprise Corridor zone as identified in the RLEP, in which the proposed development is not prohibited according to the land use table at cl 2.3 of the RLEP, and in which the zone objectives are:

•  To promote businesses along main roads and to encourage a mix of compatible uses.

•  To provide a range of employment uses (including business, office, retail and light industrial uses).

•  To maintain the economic strength of centres by limiting retailing activity.

•  To provide for residential uses, but only as part of a mixed use development.

•  To promote sustainable development, including public transport use, living and working environments.

The height standard is exceeded

11. As the lift overrun has a maximum height of 9.7m, the proposal exceeds the height of building development standard of 9.5m shown on the Height of Building map at cl 4.3(2) of the RLEP.

12. The proposal relies on a written request prepared by Minto Planning Services in accordance with cl 4.6 of the RLEP that asserts compliance with the height standard is unreasonable or unnecessary because the objectives of the standard are achieved notwithstanding the non-compliance.

13. The relevant objectives of the standard are:

(a)  to ensure that street frontages of development are in proportion with and in keeping with the character of nearby development,

(b)  to minimise overshadowing and to ensure that development is generally compatible with or improves the appearance of the area,

(c)  to encourage a consolidation pattern and sustainable integrated land use and transport development around key public transport infrastructure,

(d)  to minimise the impact of development on the amenity of surrounding properties,

…

14. I accept the reasons advanced in the written request, as summarised as follows:

1. The proposed development provides a street frontage that is in proportion with, and in keeping with the character of the B6 zone;

2. The proposed development maintains reasons solar access to the adjoining development;

3. The proposal improves the appearance of the area; and

4. The proposal provides an active street frontage.

15. I also accept that the lift overrun, being the particular aspect of the development causing the exceedance, provides equitable access to all levels of the proposed development, and may be described as a sufficient environmental planning ground to justify the minor contravention of the height standard.

16. Accordingly, I am satisfied that the written request adequately addresses the matters required to be demonstrated at cl 4.6(4)(a)(i) of the RLEP. I am also satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the standard and the B6 zone, in accordance with cl 4.6(4)(a)(ii) of the RLEP.

17. In forming this opinion of satisfaction, I note the proposal is for a mix of compatible uses, including ground level commercial use, and upper level residential accommodation in the form of boarding house development that provides for employment uses.

18. Given the limited extent and nature of the breach, I have considered those matters listed at cl 4.6(5) of the RLEP and conclude that there are no grounds on which the secretary’s concurrence should not be assumed.

19. As I am satisfied that the written request has adequately addressed the matters required to be demonstrated pursuant to cl 4.6(4)(a)(i), and the public interest in accordance with cl 4.6(4)(a)(ii) of the RLEP. I find the written request in respect of cl 4.3 of the RLEP should be upheld.

20. The proposed development complies with the floor space ratio applicable to the site at cl 4.4 of the RLEP.

21. The proposal includes earthworks on the site comprising excavation for the purposes of the basement. On the basis of the Geotechnical Investigation prepared by STS GeoEnvironmental dated August 2016, and the Acid Sulfate Soil & Hydrogeological assessment by the same author, dated August 2017, and the terms of the agreed conditions of consent, I consider those matters at cl 6.2(3) of the RLEP to be adequately addressed.

22. On the basis of the landscape plans prepared by Conzept Landscape Architects, dated January 2022, and the Stormwater Concept design prepared by JCO Consultants dated 19 January 2022, I am satisfied as to the matters at cl 6.4 of the RLEP in respect of Stormwater Management.

23. But for those areas of the ground floor to be used for the purpose of a lobby to access residential accommodation above, access for fire services, and vehicular access, I am satisfied that the ground floor is to be used for business or employment activities in accordance with cl 6.7 of the RLEP.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

24. I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 1204814M_02), prepared by AENEC dated 20 January 2022 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000.

State Environmental Planning Policy No 55 – Remediation of Land

25. On the basis of the Further Site Investigation prepared by STS GeoEnvironmental dated November 2016, and the conclusions of the Remedial Action Plan by the same author, dated July 2018, the Review of the Remedial Action prepared by EI Australia dated 5 October 2021 and the agreed conditions of consent, I am satisfied that the site will be made suitable for the purpose for which the development is proposed to be carried out, in accordance with cl 7 of SEPP 55.

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. 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.

Orders

28. The Court notes that:

1. The Council of the City of Ryde, as the relevant consent authority, has agreed under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application DA Number LDA2021/0271 filed with the Court on 1 November 2021 with the plans and reports listed in Condition 1 of the Conditions of consent provided at Annexure ‘A’.

2. The Applicant has uploaded the amended development application on the NSW planning portal on 14 February 2022, the portal reference number is AI-217102.

29. The Court orders that:

1. The Applicant’s clause 4.6 written request seeking to vary the height of the development standard under cl 4.3 of the Ryde Local Environmental Plan 2014, in relation to the 9.5m height control applying to the site, is upheld.

2. The appeal is upheld.

3. Development Application LDA2021/0271 for removal of tree and construction of a three (3) storey mixed use development, comprising one commercial suite and a 23 room boarding house, including managers room on land legally comprising of the allotment described as Lot B DP 396928, known as 2A Mellor Street, West Ryde, is approved subject to the conditions set out in Annexure ‘A’.

T Horton

Commissioner of the Court

(Annexure A) (590290, pdf)

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Decision last updated: 16 March 2022