Zaki v City of Ryde Council

[2020] NSWLEC 1194

Land and Environment Court

New South Wales

Medium Neutral Citation:	Zaki v City of Ryde Council [2020] NSWLEC 1194
Hearing dates:	Conciliation conference on 24 April 2020
Date of orders:	29 April 2020
Decision date:	29 April 2020
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See orders at [7] below
Catchwords:	DEVELOPMENT APPLICATION – residential alterations and additions – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Ryde Local Environmental Plan 2014 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Category:	Principal judgment
Parties:	Kerolos Zaki (Applicant) City of Ryde Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) G Farland (Respondent)   Solicitors: Swabb (Applicant) City of Ryde Council (Respondent)
File Number(s):	2020/32422
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) by the Applicant against the deemed refusal of its development application LDA2019/426. The development application seeks consent for alterations and additions to a dwelling including new lower ground floor, ancillary room adjacent to the pool, conversion of carport to garage, home theatre, new garage and extension of terrace on level 1. The development is proposed at 31 Pellisier Road, Ryde (Lot 2 DP 1004964).

2. The matter was referred to a Court arranged conciliation conference between the parties under s 34AA of the Land and Environment Court Act 1979 (LEC Act), which was held on 24 April 2020. Through the conciliation process, the parties have agreed amendments to the proposed development. The agreed orders provide leave to the Applicant to rely on this amended material in their development application.

3. Following the conciliation, 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 would be acceptable to them. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent.

4. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons:

1. Landowners consent was provided by the owner of the land at the time of the lodgement of the Development Application.

2. With regard to the consideration required at cl 7 of State Environmental Planning Policy No 55—Remediation of Land, I accept the position of the parties that the site has a history of residential use and does not require further specific investigation. I note that no change of use is proposed.

3. The subject site is within the bounds of the catchment map incorporated in Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. In granting consent to the development I have taken into consideration the matters in Part 3 Division 2 of the instrument.

4. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by BASIX in compliance with the instrument.

5. The site is subject to the provisions of the Ryde Local Environmental Plan 2014 (LEP 2014) and is zoned R2 Low Density Residential. Dwelling houses are a permissible use with consent in the zone. The development is not inconsistent with the zone objectives.

6. The development standards in LEP 2014 are not exceeded by the proposed development. The development, as amended does not seek approval for works forward of the foreshore building line as nominated by LEP 2014.

7. The development satisfies the requirements and the considerations detailed in cl 6.1: Acid sulfate soils, cl 6.2: Earthworks and cl 6.4: Stormwater in LEP 2014.

8. The original application was notified in accordance with the relevant development control plan and the submissions have been considered. I note that one objector to the development has raised the effect of a covenant which burdens the subject site. LEP 2014, at cl 1.9A, suspends the operation of the covenant.

5. 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.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The Applicant is granted leave to amend its development application to rely upon the following plans and material:

Document or Drawing Title, Number and Issue	Prepared By	Dated
Architectural plans
Drawing No DA-00 Coversheet	DBG Design and Building Group
Drawing No DA-01 Issue A Location Plan		6 May 2019
Drawing No DA-02 Issue F Existing Site Analysis		13 March 2020
Drawing No DA-03 Issue G Proposed Site Plan		30 March 2020
Drawing No DA-04 Issue G Proposed Lower Pool Area Plan
Drawing No DA-05 Issue G Proposed Ground Floor Plan
Drawing No DA-06 Issue G Proposed First Floor Plan
Drawing No DA-07 Issue G Proposed Roof Plan
Drawing No DA-08 Issue G Proposed North-East & South West Elevations
Drawing No DA-09 Issue G Proposed South-East & North West Elevations
Drawing No DA-10 Issue G Sections
Drawing No DA-11 Issue F View Sharing Diagram		17 March 2020
Drawing No S-01 Issue G Schedule of Finishes		30 March 2020
Drawing No A-01 Issue G Area Calculation Diagrams
Drawing No SH01 Issue F Shadow Analysis Diagrams 21 June 9AM		17 March 2020
Drawing No SH02 Issue F Shadow Analysis Diagrams 21 June 12Noon
Drawing No SH03 Issue F Shadow Analysis Diagrams 21 June 3PM
Drawing No SH04 Issue F Shadow Analysis Diagrams 21 December 9AM
Drawing No SH05 Issue F Shadow Analysis Diagrams 21 December 12Noon
Drawing No SH06 Issue F Shadow Analysis Diagrams 21 December 3PM
Landscape plans
Drawing No 18-3807 LO1 Revision C	Zenith Landscape Designs Pty Ltd	24 March 2020
Drawing No 18-3807 LO2 Revision C
Engineering Plans
Drawing No. D1, Revision G	Quantum Engineers	3 April 2020
Drawing No. D2, Revision G
Drawing No. D3, Revision G
Drawing No. D4, Revision G
Drawing No. D5, Revision G
Drawing No. D6, Revision G
Drawing No. D7, Revision G
Drawing No. D8, Revision G
Supporting Documents
Geotechnical Investigation Report	Benviron Group	Dec 2017
BASIX Certificate	A375668	24.4.2020

2. The appeal is upheld.

3. Development Application No. LDA2019/0426, for the alterations and additions to an existing dwelling on land legally described as Lot 2 in Deposited Plan 1004964, known as 31 Pellisier Road, Putney, is approved subject to deferred commencement consent pursuant to s4.16 (3) of the Environmental Planning and Assessment Act 1979 Annexure 'A'.

……………………

D M Dickson

Commissioner of the Court

Annexure A (82.7 KB)

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Decision last updated: 29 April 2020