Mourad v Council of the City of Ryde

[2024] NSWLEC 1423

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mourad v Council of the City of Ryde [2024] NSWLEC 1423

Hearing dates:

Conciliation conference 10 July 2024

Date of orders:

25 July 2024

Decision date:

25 July 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs that have been thrown away, in the amount of $1601.63, as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 to be paid within 21 days of these orders.

(2) The appeal is upheld.

(3) Development consent is granted to development application LDA2023/0102, as amended, for the demolition of existing structures, lot consolidation and construction of a part three (3), part four (4) storey residential flat building accommodating twelve (12) units over basement parking accommodating eighteen (18) parking spaces, and associated works at 2 to 4 Concord Place Gladesville NSW 2111, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential flat building - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 29, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.9, 6.10, Chs 2, 6

State Environmental Planning Policy (Housing) 2021, ss 144, 147, Ch 4, Sch 7A s 8, Sch 9

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

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

Ryde Local Environmental Plan 2014, cll 2.3,2.7, 4.3, 4.4, 4.6, 6.2, 6.4

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide, July 2015

Category:

Principal judgment

Parties:

George Mourad (Applicant)
Council of the City of Ryde (Respondent)

Representation:

Counsel:
A Sarkis (Solicitor) (Applicant)
P Kapetas (Solicitor) (Respondent)

Solicitors:
Fortis Law (Applicant)
Council of the City of Ryde (Respondent)

File Number(s):

2023/177126

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of development application no LDA2023/0102 for the demolition of existing structures and construction of a four storey residential flat building for 13 units over basement car parking (DA) at 2-4 Concord Place, Gladesville, legally known as lots 1 and 2 in DP 215704 (site).

2. The proceedings were set down for a hearing for 10-11 July 2024. Following discussions between the parties and amendments made to the DA, at [4], the parties requested that the hearing be adjourned and listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act).

3. The Court granted the request and arranged a conciliation conference between the parties, which was held on 10 July 2024. I have presided over the conciliation conference.

4. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) to the Applicant amending LDA2023/0102 in accordance with the documents listed at [28] (amended DA). In summary, the changes from the filed DA include removal of a proposed unit.

5. 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. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent.

6. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

7. 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.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

10. I am satisfied that owners consent accompanied the Class 1 appeal. I am satisfied on the basis of the parties’ agreed jurisdictional statement that owners consent has been granted for the deferred commencement condition to create an easement and stormwater works at 2 Harvard Street Gladesville (Class 1 Application, Tab 17).

11. The Respondent notified the DA between 19 April 2023 to 11 May 2023 where four submissions were received. The Court and parties heard oral submissions from an objector and benefited from understanding the concerns raised from their property.

12. As the parties have reached agreement, the merit concerns raised in the submissions have been considered by the Respondent and Applicant.

Ryde Local Environmental Plan 2014

13. The site is zoned R4 High Density Residential under the Ryde Local Environmental Plan 2014 (RLEP). The proposed development for a residential flat building is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone. Clause 2.7 applies, which allows demolition with development consent.

14. Clause 4.3 height of buildings applies to the site, permitting a maximum height of 11.5m. The amended DA is 13.34m at its highest point. The amended DA seeks to vary the development standard pursuant to cl 4.6 and is supported by a Clause 4.6 Variation - Height request prepared by Think Planners dated 14 December 2023 (written request). The parties are satisfied of the merits of the written request. I accept that the written request addresses the mandatory provisions of cl 4.6.

15. Clause 4.4 floor space ratio (FSR) applies to the site, permitting a maximum FSR of 1:1. The amended DA proposes an FSR of 1.11:1. The amended DA seeks to vary the development standard pursuant to cl 4.6 and is supported by a Clause 4.6 Variation – FSR request prepared by Think Planners dated 14 December 2023 (written request). The parties are satisfied of the merits of the written request. I accept that the written request responds to the mandatory provisions of cl 4.6.

16. Clause 6.2 earthworks applies to the amended DA. I accept the parties’ agreement that the provisions of cl 6.2 have been considered as demonstrated through the amended stormwater plans prepared by Deboke Engineering Consultants dated 12 March 2023 (SW plans), Statement of Environmental Effects prepared by Think Planners dated 22 December 2022 and Waste Management Plan prepared by Dickens Solutions dated December 2022.

17. Clause 6.4 stormwater management applies. I accept the parties’ agreement that the provisions have been satisfised, in that permeable areas have been provided and stormwater runoff has been managed through the proposed stormwater system and easement demonstrated by the SW plans.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC)

18. The amended DA includes the removal of trees. The parties agree and I accept that the tree removal is not inconsistent with the provisions of Ch 2.

19. The site is located within the Sydney Harbour Catchment area and Ch 6 applies. I accept the parties’ agreement that the amended DA satisfies the provisions of ss 6.6, 6.9 and 6.10 on the basis of the SW plans that form conditions of consent at Annexure A and the jurisdictional statement.

State Environmental Planning Policy (Housing) 2021

20. Chapter 4 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the amended DA in accordance with Sch 7A s 8 (2A) and s 144. Section 147 requires consideration of the design principles contained in Sch 9 and the Apartment Design Guide (ADG).

21. Relevantly, s 29 of the EPA Reg requires that residential apartment development must be accompanied by a statement prepared by a qualified designer in relation to the design principles within Sch 9 of the Housing SEPP and Parts 3 and 4 of the ADG.

22. The parties agree and I accept that the amended DA meets the provisions of the Housing SEPP on the basis of the Design Verification Statement completed by the nominated qualified designer Michael Morony (registered architect numbers 8218) dated 12 July 2024.

State Environmental Planning Policy (Resilience and Hazards) 2021

23. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The amended DA is accompanied by a Preliminary Site Investigation prepared by Geotechnical Consultants Australia dated 18 November 2022 which states that the site is suitable for the proposed use and includes recommendations prior to demolition of the existing structures primarily in relation to asbestos. Conditions of consent have been included at Annexure A to address the recommendations. Accordingly, the parties agree, and I accept that the provisions of s 4.6 of SEPP RH have been satisfied.

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

24. An amended BASIX Certificate accompanies the amended DA that meets the requirements.

Conclusion

25. 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.

26. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

27. 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.

28. The Court notes that the Respondent has approved, as the relevant consent authority, under s 38 of the EPA Reg to the Applicant amending LDA2023/0102 to rely upon the following amended plans and documents:

No	Document	Ref No.	Prepared by	Rev.	Date
1.	Architectural Plans
	Cover Sheet and Drawing List	A000	ReidCampbell	K	12 Dec 2023
	Site Plan	A001	ReidCampbell	K	12 Dec 2023
	Demolition Plan	A002	ReidCampbell	K	12 Dec 2023
	Perspectives	A003	ReidCampbell	J	12 Dec 2023
	Shadow Diagrams at June 21	A004	ReidCampbell	J	12 Dec 2023
	Basement Floor Plan	A101	ReidCampbell	K	12 Dec 2023
	Ground Floor Plan	A102	ReidCampbell	K	12 Dec 2023
	First Floor Plan	A103	ReidCampbell	K	12 Dec 2023
	Second Floor Plan	A104	ReidCampbell	K	12 Dec 2023
	Terrace Floor Plan	A105	ReidCampbell	K	12 Dec 2023
	Area and Compliance Plan	A106	ReidCampbell	J	12 Dec 2023
	Adaptable Unit & Silver Livable Housing Design	A107	ReidCampbell	H	12 Dec 2023
	Deep Soil Calculation and Planter Box Details	A108	ReidCampbell	E	12 Dec 2023
	Front & Rear Elevation	A201	ReidCampbell	J	12 Dec 2023
	Side Elevations	A202	ReidCampbell	K	12 Dec 2023
	Building Sections 01	A301	ReidCampbell	K	12 Dec 2023
	Building Sections 02	A302	ReidCampbell	K	12 Dec 2023
	Building Sections 03	A303	ReidCampbell	K	12 Dec 2023
	Height Plane Exceedance Diagram	A310	ReidCampbell	G	12 Dec 2023
	Neighbour’s View	A311	ReidCampbell	B	12 Dec 2023
	Notification Plan	NP001	ReidCampbell	H	12 Dec 2023
23.	Landscape Plans
	Landscape Plan Ground Floor + Common Open Area Roof Plan	L-01	Outside In Group	E	15 Mar 2024
25.	Stormwater Plans
	Cover Sheet	S100	Deboke	03	12 Mar 2024
	Specifications Sheet	S101	Deboke	03	12 Mar 2024
	Basement Plan	S200	Deboke	03	12 Mar 2024
	Ground Floor Plan 1 of 2	S201	Deboke	03	12 Mar 2024
	Ground Floor Plan 2 of 2	S202	Deboke	03	12 Mar 2024
	First Floor Plan	S203	Deboke	03	12 Mar 2024
	Second Floor Plan	S204	Deboke	03	12 Mar 2024
	Roof Plan	S205	Deboke	03	12 Mar 2024
	Details Sheet	S300	Deboke	03	12 Mar 2024
	Erosion and Sediment Control Plan	S400	Deboke	03	12 Mar 2024
28.	Landscape Specification + Maintenance Program		Outside In Design Group	-	29 Nov 2023
29.	Traffic and Parking Statement		TEF	-	27 Nov 2023
30.	Clause 4.6 Variation (Floor Space Ratio)		Think Planners	-	14 Dec 2023
31.	Clause 4.6 Variation (Height of Building)		Think Planners	-	14 Dec 2023
32.	View Loss Discussion Letter		Think Planners	-	14 Dec 2023
33.	Basix
	BASIX Certificate – Lot 1-2/DP215704 – No. 1365164M_02		Building Sustainability Assessments	3	21 May 2024
	NatHERS Certificate – Lot 1-2/DP215704 – No. #HR-K2V085-01		Building Sustainability Assessments	-	21 May 2024
36.	Survey Plan
	Plan Showing Levels & Detail over Lot 1 & 2 in DP 215704		RGM Property Surveyors	D	23 Nov 2023
11	Design Verification Statement		ReidCampbell	-	12 Jul 2024

Orders:

29. The Court orders:

1. The Applicant is to pay the Respondent’s costs that have been thrown away, in the amount of $1601.63, as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 to be paid within 21 days of these orders.

2. The appeal is upheld.

3. Development consent is granted to development application LDA2023/0102, as amended, for the demolition of existing structures, lot consolidation and construction of a part three (3), part four (4) storey residential flat building accommodating twelve (12) units over basement parking accommodating eighteen (18) parking spaces, and associated works at 2 to 4 Concord Place Gladesville NSW 2111, subject to the conditions in Annexure A.

S Porter

Commissioner of the Court 

Annexure A

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Decision last updated: 25 July 2024