Zhao v City of Ryde Council

[2023] NSWLEC 1790

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zhao v City of Ryde Council [2023] NSWLEC 1790

Hearing dates:

Conciliation conference on 20 December 2023

Date of orders:

22 December 2023

Decision date:

22 December 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The applicant is directed to file the amended development application as approved by Council and set out in Annexure A within seven (7) days of the date of this order.

(2) The appeal is upheld.

(3) Development Application LDA2022/0098 for alterations and additions to the existing dwelling house, construction of an additional 2 storey dwelling to create a dual occupancy (Detached), strata subdivision and removal of trees at 31 Campbell Street, Eastwood, is determined by the grant of consent subject to conditions set out in Annexure B .

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy (detached) development – alterations and additions to existing dwelling – heritage conservation – heritage significance – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2021, s 38

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

Ryde Local Environmental Plan 2014, cll 4.1, 5.10, 6.1, 6.2, 6.4, Sch 5

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

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Strata Schemes Development Act 2015

Category:

Principal judgment

Parties:

Shaohui Zhao (Applicant)
City of Ryde Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Applicant)
M Chillari (Solicitor) (Respondent)

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

File Number(s):

2023/216020

Publication restriction:

Nil

Judgment

1. COMMISSIONER: A site at the intersection of Wentworth Road and Campbell Street in the suburb of Eastwood is proposed for strata title subdivision, construction of a dual occupancy (detached) and alterations and additions to the existing dwelling currently located on the site.

2. The existing dwelling is listed, in Sch 5 of the Ryde Local Environmental Plan 2014 (RLEP) for its heritage significance at a local level. The scope of proposed alterations and additions to the heritage item includes:

1. Removal of an existing unsympathetic detached garage, sunroom and laundry.

2. Two-storey addition to the north, accommodating a single garage and laundry, living area and balcony.

3. The proposed new two-storey dwelling constituting a detached dual occupancy is located to the north of the existing dwelling and comprises three bedrooms, a new vehicle crossing and driveway servicing a single garage and landscaping works.

4. To this end, Development Application No LDA2022/0098 was lodged with the Council of the City of Ryde on 28 March 2022 and notified between 28 March 2022 – 18 April 2022.

5. On 9 March 2023, the Ryde Local Planning Panel refused the development application on behalf of the Respondent, and the Applicant filed an appeal in Class 1 of the Court’s jurisdiction under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) on 6 July 2023.

6. The appeal was listed for mandatory conciliation on 20 December 2023, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

7. The Applicant amended the proposal prior to the conciliation conference, which had the effect of resolving the contentions. As a consequence, 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.

8. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 20 December 2023.

9. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

10. 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. 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 [25].

11. 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.

12. The site, known as 31 Campbell Street Eastwood, is located within the R2 Low Density Residential zone according to the RLEP, in which development for the purpose of dual occupancy (detached) is not nominated in the land use table as development permitted with consent, and so is prohibited.

13. However, the parties are agreed that the conservation incentives at cl 5.10(10) of the RLEP overcome the prohibition by permitting the grant of development consent for any purpose of the land on which a heritage item is erected, even though development for that purpose would otherwise not be allowed by this Plan.

14. The objectives of the R2 zone, to which the Court must have regard, are:

•  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.

15. Clause 4.1 of the RLEP sets minimum lot sizes by reference to the Lot Size Map at subcl (2). However, subcl (4) acts to stay the application of the lot size map where subdivision of land is by the registration of a strata plan of subdivision under the Strata Schemes Development Act 2015, as is proposed here.

16. As stated at [2], the site is heritage listed and so the effect of the proposed development on the heritage significance of the item must be considered, in accordance with cl 5.10(4) of the RLEP. The development application is accompanied by a Heritage Impact Statement, prepared by Weir Phillips dated December 2023, and a Schedule of Conservation Works by the same author and date. On the basis of the protection methodology (section 4.0), corrective maintenance (section 5.0) and planned cyclical maintenance (section 6.0) set out in the Schedule of Conservation Works, I accept the effect of the subdivision, proposed new dwelling and alterations and additions to the existing dwelling do not detract from the heritage significance of the heritage item as assessed in the Heritage Impact Statement.

17. The site is not identified on the Acid Sulfate Soils map at cl 6.1(2) of the RLEP.

18. The development does not propose earthworks that are other than minor. As such, I accept that the extent and degree of cut and fill will not affect the drainage patterns or soil stability in the locality of the development, or the likely future use or redevelopment of the land, or adjoining land and will not give rise to significant excavated material nor imported fill. Likewise, having considered the likelihood of disturbing relics, the potential impacts on any waterways or other environmentally sensitive areas and measure that would otherwise be required to avoid, minimise or mitigate the impact of the development, I conclude the earthworks will not have a detrimental impact on environmental functions and process, uses of features of the land or surrounding land, pursuant to cl 6.2 of the RLEP.

19. On the basis of the stormwater management plans prepared by Storm Civil, and the agreed conditions of consent at Conditions 45 and 46, I am satisfied the proposal is designed to maximise the use of water permeable surfaces, includes on site detention of water and so avoids any significant adverse impacts of stormwater runoff on adjoining properties in accordance with cl 6.4 of the RLEP.

State Environmental Planning Policy (Sustainable Buildings) 2022

20. A BASIX Certificate for each of the proposed lots, issued on 12 December 2023 (Lot 1: Certificate No A1729887, Lot 2: Certificate No 1729884M) accompanies the application, prepared by HYA Consulting Engineers in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 that, notwithstanding its repeal, continues to operate according to s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022.

State Environmental Planning Policy (Resilience and Hazards) 2021

21. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 precludes development consent to any development unless it has been considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable, or will be suitable after undergoing remediation, for the proposed use. On the basis of the historical uses and chronology of ownership documented in the Heritage Impact Statement cited at [16], I accept the site is suitable for the purpose for which development is proposed to be carried out.

Conclusion

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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

24. The Court notes that:

1. Ryde Council as the relevant consent authority for the purposes of s 38(1) of the Environmental Planning and Assessment Regulation 2021 approves the amendment to Development Application LDA2022/0098 as follows:

1. to include strata title subdivision; and

2. to rely on documentation set out in Annexure A

Orders

25. The Court orders that:

1. The applicant is directed to file the amended development application as approved by Council and set out in Annexure A within seven (7) days of the date of this order.

2. The appeal is upheld.

3. Development Application LDA2022/0098 for alterations and additions to the existing dwelling house, construction of an additional 2 storey dwelling to create a dual occupancy (Detached), strata subdivision and removal of trees at 31 Campbell Street, Eastwood, is determined by the grant of consent subject to conditions set out in Annexure B

T Horton

Commissioner of the Court

Annexure A

Annexure B

**********

Decision last updated: 22 December 2023