Lam v Council of the City of Ryde

[2020] NSWLEC 1058

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lam v Council of the City of Ryde [2020] NSWLEC 1058
Hearing dates:	Conciliation conference on 28 January 2020
Date of orders:	13 February 2020
Decision date:	13 February 2020
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1)   The Applicant is granted leave to rely upon the amended plans set out in Annexure “A”. (2)   The Appeal is upheld. (3) Development Application Number LDA2018/0196, for construction of a new three storey boarding house – under State Environmental Planning Policy (Affordable Rental Housing) 2009 – comprising 15 boarding rooms, 4 car parking spaces in the basement together with storage areas and indoor and outdoor communal area at 527 Victoria Road, Ryde, NSW is approved subject to the conditions set out in Annexure “B”.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Ryde Local Environmental Plan 2014 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Benjamin Lam (Applicant) Council of the City of Ryde (Respondent)
Representation:	Counsel: G McKee (Solicitor) (Applicant) F Berglund (Respondent)   Solicitors: McKees Legal Solutions (Applicant) City of Ryde (Respondent)
File Number(s):	2018/352547
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against Ryde Local Planning Panel’s refusal of Development Application No. LDA2018/0196 (‘DA’).

2. The DA seeks approval for the demolition of existing structures and the construction of a boarding house. The proposal ultimately before the Court, after leave was granted for an amended to the original application, comprises 15 boarding rooms, 4 car parking spaces in the basement together with storage areas and indoor and outdoor communal area. The site is at 527 Victoria Road Ryde, and is legally described as Lot A, DP358920

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 28 January 2020. I presided over the conciliation conference.

4. At the conciliation conference, the parties finalised an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. 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 DA. The parties indicate that the decision is one that the Court can make in the proper exercise of its functions, and provided commentary on relevant jurisdictional matters to demonstrate this and I so agree, in particular noting the following:

1. The site is zoned R4 High Density Residential under the provisions of Ryde Local Environmental Plan 2014 (‘LEP’) and a boarding house is a permissible use with consent in that zone.

2. The application is compliant with applicable development standards in regard to height and floor space ratio having regard to the LEP and State Environmental Planning Policy (Affordable Rental Housing) 2009, which applies a floor space bonus to the LEP controls.

3. Having regard to cl 6.4(3) of the LEP in regard to stormwater management, I note the following:

1. in regard to subcl 6.4(3)(a), I am advised that the proposal meets the Council’s soft landscaping requirements in particular through the intended deep soil setback area at the rear of the site – I am advised that this is Council’s common yardstick for determination satisfaction under cl 6.4(3)(a) and I am also satisfied in that regard;

2. I am also satisfied in regard to subcl 6.4(3)(b) noting the intended rainwater collection tank and intended re-use scheme; and

3. in regard to subcl 6.4(3)(c), the stormwater management scheme has been explained to me including the intended arrangements for treatment of overland flow and integration with existing infrastructure as means of avoiding adverse stormwater effects – in turn, I am also satisfied in regard to this subclause of the LEP.

4. Having regard to State Environmental Planning Policy No 55 – Remediation of Land, and in particular cl 7(1), a preliminary assessment was undertaken by Ground Technologies Pty Ltd (dated 16 May 2018) which found the site “suitable for the proposed use”. Council’s records found no historical activities on the subject site which would trigger the need for a more detailed assessment. I agree with Council and find that the relevant provision is satisfied.

5. The submissions which were made in regard to the application have been considered.

6. I agree with the parties that their decision is one that the Court could make in the proper exercise of its functions. 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.

7. The Court orders:

1. The Applicant is granted leave to rely upon the amended plans set out in Annexure “A”.

2. The Appeal is upheld.

3. Development Application Number LDA2018/0196, for construction of a new three storey boarding house – under State Environmental Planning Policy (Affordable Rental Housing) 2009 – comprising 15 boarding rooms, 4 car parking spaces in the basement together with storage areas and indoor and outdoor communal area at 527 Victoria Road, Ryde, NSW is approved subject to the conditions set out in Annexure “B”.

…………………………..

P Walsh

Commissioner of the Court

Annexure A (73.8 KB)

Annexure B (418 KB)

Landscape Plans (2.24 MB)

PoM (190 KB)

Architectural Plans (8.90 MB)

**********