Newington Property Pty Ltd v City of Ryde Council

[2021] NSWLEC 1786

Land and Environment Court

New South Wales

Medium Neutral Citation:

Newington Property Pty Ltd v City of Ryde Council [2021] NSWLEC 1786

Hearing dates:

Conciliation conference on 13 December 2021

Date of orders:

23 December 2021

Decision date:

23 December 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. LDA 2021/0034 for the demolition of existing structures and construction of a 3 dwelling multi dwelling housing development on the land identified as Lot 6 Section 4 DP 1095 known as 2 Deakin Street, West Ryde, subject to conditions as set out in Annexure “A”.

Catchwords:

APPEAL – development application – multi dwelling housing – conciliation conference – agreement reached

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 8.7, 4.15

Environmental Planning and Assessment Regulation 2000 cl 55, Sch 1

Land and Environment Court Act 1979 s 34

Ryde Local Environmental Plan 2014 cll 1.8A, 6.2, 6.4

Ryde Local Environmental Plan 2014 (Amendment No 28)

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

Category:

Principal judgment

Parties:

Newington Property Pty Ltd (Applicant)
City of Ryde Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
S Berveling (Respondent)

Solicitors:
Conomos Legal (Applicant)
City of Ryde Council (Respondent)

File Number(s):

2021/149034

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of multi dwelling housing comprising 3 dwellings at 2 Deakin Street, West Ryde. Multi dwelling housing is now prohibited on the site following an amendment to the Ryde Local Environmental Plan 2014 (RLEP), but a savings provision operates such that the amendment does not apply to this development application. The development application was lodged on 5 February 2021, and was subsequently refused by City of Ryde Council (the Council) on 6 May 2021. These proceedings are an appeal against that decision by Newington Property Pty Ltd, which is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The final orders in this appeal, outlined in [8] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. Although the appeal was listed for hearing on 13 December 2021, the hearing was adjourned to allow the matter to be listed for a conciliation conference. A conciliation conference between the parties was arranged for the same day, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was reached following the amendment of the plans the subject of the development application, concerning which orders were made by the Court on 20 October 2021. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement was filed on 13 December 2021 and is supported by an agreed Jurisdictional Statement.

4. The development application was subsequently formally amended by the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, on 16 December 2021, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The amended development application is for a multi dwelling housing development comprising three dwellings, with a built form outcome of two storeys at the street and a single storey at the rear. The proposed development, as amended, has a similar built form outcome to recently completed developments to the west at 6 and 8 Deakin Street, within the same zone.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended development application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The site is zoned R2 Low Density Residential pursuant to the RLEP and the proposed development is for the purpose of multi dwelling housing, which was a permissible use in the zone at the time the development application was lodged with the Council on 5 February 2021. Although the Ryde Local Environmental Plan 2014 (Amendment No 28) was made on 5 March 2021 removing it as a permissible use in the zone, the savings provision in cl 1.8A(3) of the RLEP (inserted by the amending instrument) means that this particular change effected by the Ryde Local Environmental Plan 2014 (Amendment No 28) does not apply to the development application.

• The proposed development complies with the applicable development standards in the RLEP for height and floor space ratio.

• Consistent with what is required to be considered by cl 6.2 of the RLEP, I accept the parties’ position that there is minimal earthworks or excavation required by the proposed development, and that there will be no disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development.

• Based on the updated hydraulic plans and the letter of Telford Civil dated 1 October 2021, I am satisfied of the matters in cl 6.4(3) of the RLEP.

• Although owners’ consent was raised by the Council as an issue in the proceedings, the addendum to the development application form contains the consent of the two owners of the site in writing.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the EPA Regulation.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. As the site has a history of residential use, it is not likely to be contaminated.

• The Council has indicated, and I accept, that the application was notified in accordance with the EPA Regulation. One submission was received, and I have considered the issues raised by that submission.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. LDA 2021/0034 for the demolition of existing structures and construction of a 3 dwelling multi dwelling housing development on the land identified as Lot 6 Section 4 DP 1095 known as 2 Deakin Street, West Ryde, subject to conditions as set out in Annexure “A”.

……………………….

J Gray

Commissioner of the Court

Annexure A (265046, pdf)

**********

Decision last updated: 23 December 2021