Spicer v City of Ryde Council

[2024] NSWLEC 1342

Land and Environment Court

New South Wales

Medium Neutral Citation:

Spicer v City of Ryde Council [2024] NSWLEC 1342

Hearing dates:

Conciliation conference on 5 June 2024

Date of orders:

20 June 2024

Decision date:

20 June 2024

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application LDA2022/0334 for the demolition of the existing three storey dwelling, construction of a new three storey dwelling, swimming pool and hardstand parking and ancillary work at 85 Westminster Road, Gladesville NSW being Lot 10 In Section 1 in Deposited Plan 2183 is determined by the grant of consent subject to conditions contained in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – dwelling house – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, ss 27, 38, 271

Ryde Local Environmental Plan 2013, cll 4.3, 4.4, 5.10, 6.1, 6.2, 6.4

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 2.6, 6.6, 6.7, 6.8, 6.9, 6.10

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

Texts Cited:

City of Ryde Community Participation Plan 2019

NSW Rural Fire Service, Planning for Bush Fire Protection, November 2019

Category:

Principal judgment

Parties:

Jonathan Spicer (Applicant)
City of Ryde Council (Respondent)

Representation:

Counsel:
M Wright SC (Applicant)
F Berglund (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
City of Ryde Council (Respondent)

File Number(s):

2023/353155

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise from the actual refusal, by the City of Ryde Council, of development application LDA2022/0334 for the demolition of an existing dwelling and construction of a new 3-storey dwelling, swimming pool and carport at 85 Westminster Road, Gladesville, legally known as Lot 10 sec 1 DP 2183.

2. These proceedings have been brought to the Court under s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 June 2024. During 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 and granting development consent to the development application subject to conditions. Under this agreement, the respondent also agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) to the applicants amending the application to reflect the agreements made between experts in the joint reporting process.

4. Accordingly, the matter did not proceed to a hearing.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied. From this I note the following points.

6. The application has been made with the written consent of the owner of the subject site.

7. The development application was notified from 1-18 November 2022 in accordance with the City of Ryde Community Participation Plan. Two submissions were received in this period. A subsequent renotification occurred between 21 December 2022 and 31 January 2023. One submission was received. In addition, one oral submission was made at the commencement of this conciliation, where issues of view loss, diminished solar access, structural integrity of existing fill, and site access were raised. Based on the parties’ submissions and the amended development application, I accept that the issues raised by these objectors have been considered and adequately addressed in the amended application, principally through modifications to the building design and geotechnical investigations.

8. The subject site is zoned R2 Low Density Residential under the Ryde Local Environmental Plan 2014 (RLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

9. RLEP cl 4.3 establishes a maximum building height of 9.5m. The proposed development breaches this by 0.716m, or 7.54% at the leading edge of the roof to the third floor.

10. As a result of this exceedance, cl 4.6(3) of the RLEP allows the applicant to provide a written request to justify the contravention of this development standard. This written request must demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. To that end, the applicant has submitted a written request prepared by BMA Planning, dated 27 May 2024 (the written request). Pursuant to RLEP cl 4.6, I am satisfied that:

1. The written request demonstrates that compliance with the Height of Buildings development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R2 Low Density Residential Zone and the   Height of Buildings development standard, notwithstanding the non-compliance. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties.

2. The written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that:

1. The subject site is affected by a flame zone buffer which significantly constrains the developable area of the site. Floor plates (and corresponding roof forms) have been accordingly limited, and their location in relation to topography has a direct consequence of this breach.

2. The proposal complies with all other applicable development standards, including FSR. As above, the height variation results from site constraints, and does not result in additional gross floor area outside of that prescribed to the site.

3. The addition that results in the breach will be an indiscernible addition in terms of bulk, scale and height, and does not result in any unacceptable visual impact on the streetscape or neighbouring sites.

3. The contravention is therefore justified by the constraints of the flame zone and topography affecting the site, the compliance with all other relevant development controls, a lack of adverse impact on the streetscape and neighbouring residents, and by the breach of the standard being minor in nature.

4. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

11. RLEP cl 4.4 sets a maximum floor space ratio (FSR) of 0.5:1 to this land. The proposed development is within this limit with an FSR of 0.408:1.

12. The site is not a heritage item nor located within a heritage conservation area, however it is located adjacent to the Field of Mars Wildlife Reserve which is listed as a local heritage item. A Heritage Impact Statement was provided with the Class 1 application, authored by Spicer Architecture, dated 17 August 2022. Based on this and the parties’ submissions in relation to a relevant objector submission and the development itself, I am satisfied that the development as amended has properly considered the interrelationship between the heritage item and the proposed development, and that no further consideration under cl 5.10 is required.

13. Pursuant to RLEP cl 6.1, the site is identified as Class 5 Acid Sulfate Soils on the RLEP Acid Sulfate Soils Map. The Class 1 application contains a Geotechnical Investigation and Assessment of Acid Sulfate Soils Potential report, rev B, by GEO Mechanics, dated 12 February 2023 (the Geotechnical Report). Based on the findings at p 13 of this report and the submissions of the parties, I accept that an Acid Sulfate Soils Management Plan is not required and the requirements of RLEP cl 6.1 are met.

14. RLEP cl 6.2 requires consideration of earthworks-related matters prior to the grant of development consent. Based on the information provided in the Geotechnical Report the parties submit, and I accept, that the matters identified in this clause have been adequately considered and the proposed development meets the objective of this clause.

15. RLEP cl 6.4 provides for earthworks-related matters. Based on the amended stormwater plans and details by D.T Civil Engineering Consultants rev E, dated 5 April 2024, the amended landscape drawings, rev B by Zenith Landscape Designs, and the parties’ submissions, I am satisfied that the proposed development adequately meets the requirements of cl 6.4(3). This is further supported by condition 46 of Annexure B that imposes additional requirements for stormwater management.

16. The proposed development includes the removal of one tree: a cluster of Monstera deliciosa along the southern boundary. Pursuant to the requirements of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (B&C SEPP) s 2.6, development consent is required for the removal of this tree cluster. This consent is requested in the development application and based on the parties’ submission and the information contained in the Arboricultural Impact Assessment Report by Jacksons Nature Works, dated 15 April 2024, I accept that this tree cluster is not classified as native vegetation and is an exempt species, and that its removal is acceptable. I further accept that the proposed tree removal and replacement satisfies the objectives of this section, subject to the conditions of consent at Annexure B.

17. The site is located within the Sydney Harbour Catchment, and subsequently Ch 6 of the B&C SEPP applies to the development. Based on the information contained in the Local Planning Panel Report, the Geotech report, and the aforementioned stormwater plans, I accept that the matters identified in the B&C SEPP ss 6.6, 6.7, 6.8, 6.9 and 6.10 have been considered in the assessment of this application, and, as required by each of these sections I accept:

1. That the effect of the development on the quality of water entering Sydney Harbour will be either neutral or beneficial, and further that the impact on the water flow of a natural water body will be minimised (s 6.6).

2. That the proposed development will keep to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; will not have a direct impact of cumulative adverse impact on aquatic reserves; minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody, and; minimises any adverse impact on wetlands (s 6.7).

3. That the proposed development is unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s 6.8)

4. That the proposed development does not affect public access to and from natural waterbodies (s 6.9).

5. That the proposed development is not likely to have an adverse environmental impact on any adjacent local government area (s 6.10).

18. Section 271 of the EPA Regulations prescribes the documents for consideration under the EPA Act. Subsequently, pursuant to s 4.14 of the EPA Act, consideration of bushfire is required on this land as it has been identified as bushfire prone land. From the parties’ submission, the Bushfire Statement of Compliance of Landscape Plans by Bushfire Consulting Services dated 11 April 2024, the amended landscape plans, and the referral from the Rural Fire Service (RFS) at tab 15 of the Council’s bundle, I accept that the development conforms to the relevant specifications and requirements of Planning for Bush Fire Protection (EPA Act s 4.14 (1)(a)), and that General Terms of Approval have been provided by the RFS (s 4.14 (1)(b)).

19. The development application is accompanied by a BASIX certificate that relates to the development as amended, pursuant to s 27 of the EPA Regulations. Compliance with the commitments within this certificate is further required through a condition of consent.

20. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the Detailed Site Investigation dated 20 October 2023, the Remedial Action Plan (RAP) dated 14 November 2023 by Geotechnical Consultants Australia, and the parties’ submission, I accept that some minor contaminants have been identified on the subject site but that subject to the methodology provided in the RAP, the site can be successfully remediated. Subsequently, I am satisfied that, pursuant to the requirements of s 4.6, the subject site can be made suitable for its intended purpose following remediation in accordance with the RAP.

21. For these reasons, 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.

22. 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.

23. The Court notes:

1. The Respondent, City of Ryde Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No LDA2022/0334 to rely on the documents as outlined in Annexure A.

24. The Court orders:

1. The appeal is upheld.

2. Development Application LDA2022/0334 for the demolition of the existing three storey dwelling, construction of a new three storey dwelling, swimming pool and hardstand parking and ancillary work at 85 Westminster Road, Gladesville NSW being Lot 10 In Section 1 in Deposited Plan 2183 is determined by the grant of consent subject to conditions contained in Annexure B.

E Washington

Acting Commissioner of the Court

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Annexure A

Annexure B

Decision last updated: 20 June 2024