Mei v Council of the City of Ryde

[2024] NSWLEC 1242

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mei v Council of the City of Ryde [2024] NSWLEC 1242

Hearing dates:

Conciliation Conference on 7 March 2024

Date of orders:

10 May 2024

Decision date:

10 May 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application LDA2022/0398 for the demolition of existing structures and construction of a 3 level boarding house with 14 boarding rooms, 2 car spaces, 2 motorbike spaces and internal bicycle parking on land described as Lot 1 in Deposited Plan DP 965774, known as 20 May Street, Eastwood, NSW 2122 subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – boarding house – affordable housing - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7

Land and Environment Court Act 1979, ss 34, 39

Environmental Planning and Assessment Regulation 2021, ss 26, 38, 83

State Environmental Planning Policy (Housing) 2021, ss 24, 25, 26

Ryde Local Environmental Plan 2014, cl 2.3,4.6, 6.3, 6.4

Texts Cited:

NSW Department of Planning and Environment Apartment Design Guide 2015

Ryde Development Control Plan 2014

Category:

Principal judgment

Parties:

Zhou Shan Mei (Applicant)
Council of the City of Ryde (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
M Chillari (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers (Applicant)
Council of the City of Ryde (Respondent)

File Number(s):

2023/78795

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Council of the City of Ryde (the Council) of Development Application LDA2022/0398 for the demolition of existing structures and construction of a 3 level boarding house with 14 boarding rooms, 2 car spaces, 2 motorbike spaces and internal bicycle parking (the development) on land described as Lot 1 in Deposited Plan DP 965774, known as 20 May Street, Eastwood, NSW 2122 (the Site).

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

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the proposed development with conditions at Annexure A.

4. Section 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

5. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement). The statutory planning controls relevant to the site and the proposed development are listed in the Council’s Statement of Facts and Contentions.

6. Regarding jurisdiction and taking into account the parties’ analysis and advice in the Statement, I am satisfied in regard to the following relevant matters.

Ryde Local Environmental Plan 2014

7. The proposed development is for the purposes of a boarding house as defined in the Ryde Local Environmental Plan 2014 (RLEP), which is permissible on the Site subject to development consent and pursuant to State Environmental Planning Policy (Housing) 2021.

8. The land to which the development application relates is situated within the R4 High Density Residential Zone under the RLEP 2014.

9. The objectives of the R4 Zone are:

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

To provide a variety of housing types within a high density residential environment.

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

10. Clause 2.3(2) requires the Court to have regard to the R4 Zone objectives when determining the DA. The parties agree and the Court accepts that the development achieves the objectives of the R4 Zone.

11. The Court must consider the relevant matters relating to earthworks under cl 6.2(3) of the RLEP. The parties have considered those matters and conditions are proposed accordingly (see 4, 30, 70, 77, 99) and the Court is satisfied.

12. The Court must be satisfied as to the relevant matters relating to stormwater management under cl 6.4(3) of the RLEP. The parties have considered those matters, stormwater management plans have been prepared (see Annexure E NOM), and conditions are proposed accordingly (see 24, 55, 56, 57, 107, 108, 141-145). The Court is satisfied the stormwater requirements are met.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether land is contaminated, and if contaminated, whether it is satisfied that the land is suitable for the purpose proposed. The Site has a long history of use for residential purposes. On that basis, there is no reason to suspect the Site is contaminated. Condition 22 has also been proposed to address any unexpected findings. The requirements of s 4.6 are met.

State Environmental Planning Policy (Housing) 2021

14. The Court can be satisfied that the clause 4.6 variation with respect to the car parking development standard under s 24(2)(i)(i) of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) prepared by Chapman Planning Pty Ltd dated 10 August 2023 should be upheld. The provision of one private off street parking space and one car share vehicle on the site would satisfy the parking demands as discussed in the traffic experts joint report.

15. The Court is satisfied that the clause 4.6 variation request with respect to the minimum lot size development standard under s 25(1)(g)(ii) of the Housing SEPP as prepared by Chapman Planning Pty Ltd dated 10 August 2023 should be upheld.

16. The Court is satisfied that the parties in reaching their agreement have considered the following:

1. the development is compatible with the desirable elements of character in the local area in accordance with s 25(2)(a) of the Housing SEPP;

2. the front, side and rear setbacks of the boarding house are not less than the minimum setback requirements for residential flat buildings under the Ryde Development Control Plan 2014; and

3. the building will comply with the minimum building separation distances specified in the NSW Department of Planning and Environment Apartment Design Guide 2015.

17. Those matters are addressed in the town planning/urban design joint report and the experts are satisfied on the merits. The experts agree and the Court accepts that the amended plans successfully manage most of the impacts of the reduced separation by the amendments set out in paragraph 3.3.3 of the joint report.

18. Condition 159 is proposed to ensure that the boarding house will be used for affordable housing and be managed by a registered community housing provider from the date of the issue of the occupation certificate and continuing in perpetuity in accordance with s 26(1) of the Housing SEPP.

Environmental Planning and Assessment Regulations 2021

19. In accordance with s 26 of the EPA Regulation the boarding house will be managed by Home Ground Real Estate Sydney which is a registered community housing provider and a plan of management has been included with the development application. The prescribed conditions under s 83 of the EPA Regulation apply to the development.

Remaining matters in s 4.15(1) of the EPA Act

20. The parties agree and the Court accepts that the DA as amended can be approved taking into consideration the matters in s 4.15(1)(a)-(e) of the EPA Act.

21. In considering the DA as amended, and in deciding whether to enter into a section 34 Agreement, which will give rise to the grant of a development consent, the parties have had regard to the public interest, as required by s 4.15(1)(e) of the EPA Act and s 39(4) of the LEC Act.

Public Notification

22. The DA was notified from 19 January 2023 to 17 February 2023. One objection was received raising issues of potential damage to neighbouring stormwater infrastructure, inappropriate tree planting and insufficient off-street parking. The issues raised by the resident objectors have been considered in the Council’s merit assessment.

Conditions of Consent

23. The parties agree that the conditions of consent are lawful having regard to the provisions of ss 4.16 and 4.17 of the EPA Act and relevant legal principles.

Conclusion

24. For these reasons, based on the evidence before me, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

25. 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. 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.

Notations

26. The Court notes that:

1. The Council of the City of Ryde as the relevant consent authority for the purposes of s38(1) of the Environmental Planning and Assessment Regulation 2021 approves the amendment to Development Application LDA2022/0398 to rely on the following documentation:

1. Architectural Plans prepared by Archian as follows:

Plan No.	Plan Title	Revision	Dated
A 00	Cover Page	E	16.02.24
A 01	Site Plan	E	16.02.24
A 02	Section J Notes	E	16.02.24
A 11	Ground Floor Plan	E	16.02.24
A 12	First Floor Plan	E	16.02.24
A 13	Second Floor Plan	E	16.02.24
A 21	South Elevation	E	16.02.24
A 22	East Elevation	E	16.02.24
A 23	North Elevation	E	16.02.24
A 24	West Elevation	E	16.02.24
A 31	Longitude Section	E	16.02.24
A 32	Cross Section	E	16.02.24
A 33	Cross Section	E	16.02.24
A 41	Typical Detail – Accessible Unit	E	16.02.24
A 42	Typical Detail – Accessible Unit Ensuite	E	16.02.24
A 46	Bin Storage Detail	E	16.02.24
A 71	Site Analysis	E	16.02.24
A 72	Streetscape Analysis	E	16.02.24
A 73	Streetscape Analysis	C	12.07.23
A 74	Demolition Plan	E	16.02.24
A 75	GFA Calculations	E	16.02.24
A 76	Site Coverage Calculation	E	16.02.24
A 77	Common Open Space Calculation	E	16.02.24
A 78	Deep Soil Calculation	E	16.02.24
A 79	Landscape Calculation	E	16.02.24
A 81	March Shadow Diagrams	E	16.02.24
A 82	June Shadow Diagrams	E	16.02.24
A 83	December Shadow Diagrams	E	16.02.24
A 85	Shadow Diagram – Communal Open Space	E	16.02.24
A 86	Shadow Diagram – Communal Room	E	16.02.24

2. Plan of Management prepared by Chapman Planning Pty Ltd dated 21 February 2024;

3. Arboricultural Impact Assessment Report prepared by Jacksons Nature Works dated 13 July 2023.

4. Updated Clause 4.6 variation request relating to s 25(1)(g)(ii) (minimum lot size) of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) prepared by Chapman Planning Pty Ltd, dated 7 March 2024.

5. Updated Clause 4.6 variation request to s 24(2)(i)(i) (parking) of SEPP Housing prepared by Chapman Planning Pty Ltd, dated 7 March 2024.

Orders

27. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application LDA2022/0398 for the demolition of existing structures and construction of a 3 level boarding house with 14 boarding rooms, 2 car spaces, 2 motorbike spaces and internal bicycle parking on land described as Lot 1 in Deposited Plan DP 965774, known as 20 May Street, Eastwood, NSW 2122, subject to the conditions in Annexure A.

L Byrne

Acting Commissioner of the Court

**********

78795.23 Byrne AC (Annexure A) (423707, pdf)

Decision last updated: 10 May 2024