WZ Properties Pty Ltd v Council of the City of Ryde

[2022] NSWLEC 1264

Land and Environment Court

New South Wales

Medium Neutral Citation:

WZ Properties Pty Ltd v Council of the City of Ryde [2022] NSWLEC 1264

Hearing dates:

Conciliation conference on 19 April 2022, final submission 6 June 2022

Date of orders:

9 June 2022

Decision date:

09 June 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application LDA2021/0061 for demolition of existing structures and construction of a two (2) storey boarding house containing 12 boarding rooms including two (2) accessible rooms, a common area, communal kitchen, laundry and dining areas, five parking space, one accessible parking space, motorcycle parking space, bicycle parking and waste storage facility on basement level on land legally comprising of the allotment described as Lot 3 DP 21031, known as 60 Balaclava Road, Eastwood is approved subject to the conditions set out in Annexure “A”.

Catchwords:

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

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Ryde Local Environmental Plan 2014, cll 6.2, 6.4

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 26, 27, 29, 30, 30A

State Environmental Planning Policy (Infrastructure) 2007, cl 45

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.118

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, cl 10

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Category:

Principal judgment

Parties:

WZ Properties Pty Ltd (Applicant)
City of Ryde Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
M Chillari (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
City of Ryde Council (Respondent)

File Number(s):

2022/15057

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. LDA2021/0061 (DA) by City of Ryde Council (Council).

2. The development application, as amended, seeks consent for construction of a two (2) storey boarding house containing 12 boarding rooms including two (2) accessible rooms, a common area, communal kitchen, laundry and dining areas, five parking space, one accessible parking space, motorcycle parking space, bicycle parking and waste storage facility on basement level. The site comprises Lot 3 in DP21031 known as 60 Balaclava Road, Eastwood (site).

Amendments to the development application

3. The Court notes the particulars of certain amendments to the DA as follows:

1. Council has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the DA filed with the Court on 18 January 2022 to align with the plans and reports listed in Condition 1 of the Conditions of Consent provided as Annexure A.

2. That the Amended DA has been lodged on the NSW planning portal on 1 June 2022

3. That the Applicant has subsequently filed the Amended DA with the Court on 6 June 2022.

Conciliation and agreement reached

4. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 19 April 2022, and at which I presided. After more time was given, the parties came to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

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

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

Jurisdictional pre-requisites

7. 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 certain jurisdictional pre-requisites which require attention before this function can be exercised. On 13 May 2022, the parties provided a “Joint Jurisdictional Note” which outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. Regarding jurisdiction, and noting this advice, I am satisfied of the following:

1. With regard to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH) which applies to the site under cl 26:

1. In regard to cl 27: the subject land is located within the R2 Low Density Residential Zone and is in an accessible area, satisfying this clause.

2. The proposal meets each of the standards nominated at cl 29, in that:

1. The FSR of the proposed development, as amended, is 0.39:1 which is compliant with the permissible FSR of 0.5:1

2. The development, as amended, complies with controls for: building height, landscaped area, solar access, private open space, parking and accommodation.

3. In regard to cl 30, and the additional standards for boarding houses: the proposed development satisfies this clause, as demonstrated in the documentation accompanying the application.

4. Clause 30A requires that a consent authority not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. The parties agree that the amended application is now compatible with the surrounding locality in terms of height, bulk and façade. I have taken the requirements of cl 30A into consideration.

State Environmental Planning Policy (Resilience and Hazards) 2021

8. Clause 4.6(1)(a) requires the consent authority to have considered whether the land is contaminated. I am advised that the application was supported by a Preliminary Site Investigation Report prepared by Geo-Logix dated 18 June 2021, a Detailed Site Investigation Report dated 5 April 2022 prepared Geo-Logix and a Remedial Action Plan (RAP) dated 24 April 2022 prepared Geo-Logix. Lead contamination was identified in soil in certain identified locations. Proposed conditions 23, 24, and 25 would require the implementation of the Remedial Action Plan and Validation Report. I am further advised that if any new information is revealed during demolition, remediation or construction works that have the potential to alter previous conclusions about site contamination, condition 27 requires the Applicant to immediately notify the Council and the Certifying Authority.

State Environmental Planning Policy (Transport and Infrastructure) 2021

9. Section 2.118 of State Environmental Planning Policy (Transport and Infrastructure) 2021 is concerned with development with frontage to classified roads. In accordance with the advice of the parties I am satisfied that:

1. There is no practicable alternative vehicular access point to access the land.

2. The safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development.

3. The development satisfactorily ameliorates traffic noise and vehicle emissions.

10. I further note the advice of the parties that the development application was referred to Transport for NSW and concurrence was granted subject to conditions of consent, which have been included.

Ryde Local Environmental Plan 2014

1. With regard to Ryde Local Environmental Plan 2014 (RLEP), which applies to the site:

1. Boarding houses are permissible with consent in the applicable zone. I have noted the R2 zone objectives.

2. I accept the advice of the parties that the development standards under RLEP have been complied with.

3. In regard to earthworks, I have considered the matters at cl 6.2(3).

4. In regard to stormwater management, I am satisfied in regard to the matters listed at cl 6.4(3), in accordance with the advice of the parties.

Objecting submissions

11. The development application was notified in accordance with requirements, with 15 objections to the original application and then six objections when the amended proposal was renotified. I have given consideration to the objecting submissions, a summary of which was provided in Council’s Statement of Facts and Contentions filed on 8 March 2022. I also had the opportunity to hear from some objectors during the site inspection prior to the conciliation conference.

Conclusion

12. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

13. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

14. The Court orders that:

1. The appeal is upheld.

2. Development Application LDA2021/0061 for demolition of existing structures and construction of a two (2) storey boarding house containing 12 boarding rooms including two (2) accessible rooms, a common area, communal kitchen, laundry and dining areas, five parking space, one accessible parking space, motorcycle parking space, bicycle parking and waste storage facility on basement level on land legally comprising of the allotment described as Lot 3 DP 21031, known as 60 Balaclava Road, Eastwood is approved subject to the conditions set out in Annexure “A”.

.…………………………

P Walsh

Commissioner of the Court

(Annexure A) (327064, pdf)

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Decision last updated: 09 June 2022