TFG Gamma Pty Ltd v City of Ryde Council

[2021] NSWLEC 1014

Land and Environment Court

New South Wales

Medium Neutral Citation:

TFG Gamma Pty Ltd v City of Ryde Council [2021] NSWLEC 1014

Hearing dates:

Conciliation conference on 18 December 2020

Date of orders:

13 January 2021

Decision date:

13 January 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the documentation at Annexure “A”.

(2) The clause 4.6 requests prepared by SJB Planning in relation to the height of buildings and density control development standards pursuant to clauses 4.3A(2) and 4.5A of Ryde Local Environmental Plan 2014, respectively dated 18 December 2020 and 17 December 2020, are well founded and upheld.

(3) The appeal is upheld.

(4) Development Application DA 2018/0432 for demolition of existing structures and the construction of a multi-dwelling housing development containing 12 dwellings (4 x two-bedroom and 8 x three-bedroom) pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 and basement carpark is approved subject to the conditions at Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling housing – draft local environmental plan – 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 1979

Ryde Local Environmental Plan 2014

State Environmental Planning Policy 55—Remediation of Land

State Environmental Planning Policy (Affordable Rental Housing) 2009

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

Texts Cited:

City of Ryde Development Control Plan 2014

Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban Design Guidelines for Infill Development (2004)

Category:

Principal judgment

Parties:

TFG Gamma Pty Ltd (Applicant)
City of Ryde Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
S Berveling (Respondent)

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

File Number(s):

2019/122025

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No DA 2018/0432 by the City of Ryde Council (the Respondent) seeking consent for the demolition of existing structures and construction of multi-dwelling housing development containing twenty-two (22) dwellings (16 x one-bedroom dwellings and 6 x three bedroom dwellings) at 19-23 Samuel Street, Ryde (the subject site).

2. I note here that on 5 November 2020, the Applicant was granted leave to amend the application and rely upon amended plans that reduced the number of dwellings proposed to twelve (12).

3. In accordance with its usual practice, the proceedings commenced with an onsite view at which the parties advised that certain aspects of the dispute remained a ‘work in progress’.

4. Early in the proceedings, the parties sought an adjournment in order to settle the matters that were the subject of ‘work in progress’. I granted the adjournment, with the hearing to resume on the following day.

5. At the resumption of the hearing, the parties advised that the parties had addressed the outstanding matters and were likely to reach an in-principle agreement if the matter was listed for conciliation conference in accordance with s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

6. The matter was reallocated to me under s 34(1) of the LEC Act for a conciliation conference between the parties, which was held on 18 December 2020 using Microsoft Teams, in accordance with directions of the Court and with consent of the parties. I presided over the conciliation conference.

7. 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 and granting development consent to the development application subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

8. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 23 December 2020.

9. The parties ask me to approve their decision as set out in the s34 agreement before the Court. 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.

10. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [36]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

11. The site is located within an R2 Low Density Residential zone according to the Ryde Local Environmental Plan 2014 (RLEP). The objectives of the R2 zone are in the following terms:

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

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

•  To provide for a variety of housing types.

12. The RLEP permits multi-dwelling housing in the R2 zone, with consent.

13. That said, on the eve of the proceedings, the Respondent adopted a draft local environmental plan (Draft RLEP) which has the effect of prohibiting multi-dwelling housing development in an R2 zone.

14. In considering the effect of the Draft RLEP, I note correspondence between the Applicant and the Department of Planning that, in summary, advises that a savings provision is likely to apply to multi dwelling housing that is the subject of a development application that is yet to be determined, in the event that the Draft RLEP is gazetted.

15. It is commonly held by the parties that the proposed development complies with the height of buildings development standard of 9.5m at cl 4.3 of the RLEP in which the objectives are:

(a)  to ensure that street frontages of development are in proportion with and in keeping with the character of nearby development,

(b)  to minimise overshadowing and to ensure that development is generally compatible with or improves the appearance of the area,

(c)  to encourage a consolidation pattern and sustainable integrated land use and transport development around key public transport infrastructure,

(d)  to minimise the impact of development on the amenity of surrounding properties,

(e)  to emphasise road frontages along road corridors.

16. Notwithstanding the height standard at cl 4.3, the dwellings at the rear of the proposed development are subject to, and breach, in part, the provision at subcl 4.3A of the RLEP, which states that:

(2)  Despite clause 4.3, the maximum height of a dual occupancy (attached) and a multi dwelling housing on land in Zone R2 Low Density Residential is 5 metres for any dwelling that does not have a road frontage.

17. I have considered the written request seeking to justify the contravention of the height standard, prepared in accordance with cl 4.6 of the RLEP and authored by Ms Alison McCabe of SJB Planning dated 18 December 2020. The exceedance of the standard is at the roof level of Units 8, 9 and 10, and ranges from 0.31m – 1.2m above the limit of 5m.

18. I am satisfied that compliance with the standard is unreasonable or unnecessary for the reasons set out in the written request prepared by Ms Alison McCabe, and with particular reference to the objectives at cl 4.3 of the RLEP that are detailed on pp 6-9 of the request.

19. I am also satisfied that as the non-compliant parts of the development are positioned in excess of minimum required setbacks, do not impose adverse amenity impacts on adjoining properties and, when considered as a whole, creates a transition in scale from the 2 storey built form prevalent on Samuel Street, to the 3-4 storey built form along Blaxland Road, there are sufficient environmental planning grounds to justify the contravention.

20. I also conclude that the proposed development is in the public interest given consistency with the objectives of the standard at cl 4.3 of the RLEP, and the zone as set out at [11], and the Secretary’s concurrence may be assumed. In arriving at this conclusion, I consider the sightline analysis, re-produced below, demonstrates care in the placement of the form that is the subject of the exceedance.

21. The proposed development also exceeds the density controls set out at cl 4.5A of the RLEP (density controls) which are in the following terms:

4.5A   Density controls for Zone R2 Low Density Residential

Development consent must not be granted to the erection of multi dwelling housing on land in Zone R2 Low Density Residential unless—

(a)  the site area for the building is not less than—

(i)  for each 1, 2 or 3 bedroom dwelling—300 square metres, and

(ii)  for each 4 or more bedroom dwelling—365 square metres, and

(b)  each dwelling will have its own contiguous private open space.

22. I have considered the written request seeking to justify the contravention of the density standard, prepared in accordance with cl 4.6 of the RLEP and authored by Ms Alison McCabe of SJB Planning dated 17 December 2020. The request identifies the contravention of the density controls to be a deficit of 503.8m² in site area that would otherwise be required by cl 4.5A of the RLEP.

23. Absent an objective to the standard, the request maintains consistency with the objective at cl 4.4 of the RLEP, being the objective of a like control. Notwithstanding the contravention of the numerical standard, the written request identifies that the proposed development exceeds the numerical controls intended to moderate or regulate appropriate density, being landscaped area and deep soil area in the RLEP and exceeds controls in the City of Ryde Development Control Plan 2014 for pervious area and site coverage.

24. Additionally, the contravention does not impose any adverse amenity impacts that are commonly the consequence of excessive density, such as overshadowing.

25. I accept that the proposed development is generally consistent with the 2-storey scale of the existing built form on Samuel Street. I also note that the ‘must not refuse’ provisions of cl 14 of the SEPP ARH requires a site area of at least 450m², and provides a bonus density at subcl 13(2), expressed as floor space ratio, for housing nominated as affordable. Together with those reasons set out at pp 8-9 of the written request, I am satisfied that there are sufficient environmental planning grounds to justify the contravention of the density control at cl 4.5A.

26. Finally, the request provides grounds on which the proposed development complies with the objectives of the standard and the zone, and I am satisfied that it is in the public interest, and can assume the Secretary’s concurrence, to uphold the request.

27. I have considered those matters set out at cl 6.2(3) of the RLEP in respect of earthworks and I note that relevant conditions have been imposed.

28. On the basis of the stormwater management report and stormwater plans prepared by Van der meer dated 5 November 2020, I am satisfied that there is sufficient permeable deep soil and landscaped area to minimise the impact of urban stormwater, and provision for on-site stormwater retention which, when considered with the proposed conditions of consent, are in accordance with cl 6.4(3) of the RLEP.

29. As the proposed development comprises a number of dwellings that are nominated ‘affordable housing’, the provisions in Part 1 and Part 2 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) apply.

30. Part 2, Division 1 of the SEPP ARH deals with in-fill affordable housing which, at subcl 10(1) of the SEPP ARH, applies to multi dwelling housing if the development concerned is permitted with consent under another environmental planning instrument.

31. Clause 14 of the SEPP ARH sets out standards that, if met, cannot be used to refuse the grant of consent. The parties agree, and I accept, that the standards are achieved by the proposed development.

32. Clause 15 of the SEPP ARH requires the consent authority, or the Court on appeal, must not consent unless it has taken into consideration the provisions of the ‘Seniors Living Policy: Urban Design Guidelines for Infill Development’ published by the Department of Infrastructure, Planning and Natural Resources (2004), to the extent that those provisions are consistent with the SEPP ARH. On the basis of the summary prepared by Ms Alison McCabe dated 17 December 2020, I accept that the provisions of cl 15 of the SEPP ARH have been considered in the preparation of the proposal.

33. On the basis of the Urban Design Analysis prepared by Geoform Architects dated 27 November 2020, I am satisfied the design of the development is compatible with the character of the local area as required by cl 16A of the SEPP ARH.

34. In respect of cl 7 of State Environmental Planning Policy 55—Remediation of Land (SEPP 55), the Applicant relies upon a Preliminary Site Investigation report prepared by Benviron Group dated October 2018, which concludes that the site is suitable for the proposed land use for residential development subject to matters that are contained in the proposed conditions of consent.

35. The application is accompanied by a BASIX certificate, prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (Certificate No. 959170M_03 dated 21 December 2020).

36. The Court orders that:

1. The Applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the documentation at Annexure “A”.

2. The clause 4.6 requests prepared by SJB Planning in relation to the height of buildings and density control development standards pursuant to clauses 4.3A(2) and 4.5A of Ryde Local Environmental Plan 2014, respectively dated 18 December 2020 and 17 December 2020, are well founded and upheld.

3. The appeal is upheld.

4. Development Application DA 2018/0432 for demolition of existing structures and the construction of a multi-dwelling housing development containing 12 dwellings (4 x two-bedroom and 8 x three-bedroom) pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 and basement carpark is approved subject to the conditions at Annexure “A”.

……………………

T Horton

Commissioner of the Court

Annexure A (392938, pdf)

Plans (21648181, pdf)

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Decision last updated: 13 January 2021