Kaczmarska v Council of the City of Ryde

Texts Cited: Australian Standards AS2601-2001, The demolition of structures, 2001
City of Ryde Community Participation Plan 2019

Category: Principal judgment

Parties: Madalena Kaczmarska (First Applicant)
Stanislav Steinwolf (Second Applicant)
Council of the City of Ryde (Respondent)

Representation: Counsel:
Self-represented (First Applicant)
S Patterson (Solicitor)(Respondent)
Solicitors:
Self-represented (Applicants)
Wilshire Webb Staunton Beattie Lawyers(Respondent)

File Number(s): 2025/384898

Publication restriction: Nil

Judgment

1. COMMISSIONER: The Applicants appeal to the Court pursuant to ss 8.6(1) and 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the Council of the City of Ryde’s (Council) refusal of Development Application LDA2025/0027 (DA) on 8 April 2025.

2. The DA was lodged with Council on 25 February 2025.

3. The appeal was filed in Court in compliance with the time provisions in s 8.10(1) of the EPA Act.

4. The DA, as amended, seeks development consent for the demolition of an existing masonry dividing wall adjoining the western boundary at 18 Morvan St West Ryde NSW 2114 being the whole of the land in Lot 41 Deposited Plan 827517 (Site).

5. The Applicants sought and the Council approved, amendment of the DA (Amended DA) pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPAR) to address the Council’s remaining issue discussed in the conciliation conference.

6. These proceedings fall within Class 1 of the Court jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

7. The statutory power or function to be exercised in determining the proceedings is s 4.16(1) of the EPA Act.

8. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 20 and 23 February 2026. I presided over the conciliation conference.

9. 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 appeal being upheld and the Amended DA being granted pursuant to s 4.16(1) of the EPA Act.

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.

11. 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 as set out below, and explained how they have been satisfied:

| Instrument | Condition met | | EPA Act | | Section 2.22 (and Schedule 1, Part 1, Division 2, cl 7(2)) – Mandatory community participation requirements. | The DA was publicly exhibited in accordance with the City of Ryde Community Participation Plan 2019 (CPP) (made pursuant to s 2.22 of the EPA Act) between 27 February 2025 and 15 March 2025. Three submissions were received in response, two from residents. Additional material provided by a resident outside of the formal notification period has also been considered by Council. The Amended DA was not required to be renotified under the CPP at the discretion of the Council. ‘Procedure’, page 8 provides that: “No notification or advertisement will occur where the amendments in the Council’s opinion: i. do not significantly differ from the original development application; and ii. do not increase the impact on adjoining or neighbouring land or cause no material impact on the environment.**” | | Section 4.2 – Development that needs consent | Clauses 2.3 and 2.7 of the Ryde Local Environmental Plan 2014 (RLEP 2014) provide that the proposed development for demolition of an existing dividing wall on the Site requires development consent. The DA before the Court seeks such consent. | | Section 4.5 – Designation of consent authority | For the purposes of s 4.5 of the EPA Act, the Council is the nominated consent authority. The Court may dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the LEC Act. Pursuant to ss 34(3) and 39(2) of the LEC Act, the Court has the functions and discretions of the respondent as consent authority. | | EPAR | | Section 23(1) – Persons who may make development applications: (1) A development application may be made by— (a) the owner of the land to which the development application relates, or (b) another person, with the written consent of the owner of the land. | The Applicants to the DA are Ms Kaczmarska and Mr Steinwolf, being the owners of the site. The Applicants have standing to commence these proceedings under s 8.7(1) of the Act. | | Section 61 – provides that: (1) In determining a development application for the demolition of a building, the consent authority must consider the Australian Standard AS 2601--2001: The Demolition of Structures. | The demolition report submitted with the application has referenced AS 2601-2001: The demolition of structures, which has been considered (pp 13 of the Statement of Environmental Effects and Joint Expert Report filed 16 February 2026 between E Gescheit, Bowd, J Chanphakeo and C Murphy with attachments C & A Surveyors Report 12 February 2026;Eco Demolition Report dated 13 February 2026 and D Smee of Acor Consultants dated 12 February 2026 ) | | State Environmental Planning Policy (Biodiversity and Conservation) 2021 (B & C SEPP) | | Chapter 2 applies to the proposed development as the Site is located in a designated non-rural area. | The objective of the B & C SEPP is to protect the biodiversity values of trees and other vegetation and to preserve the amenity of the area through the preservation of trees and other vegetation. No trees are to be removed as part of this application. | | State Environmental Planning Policy (Resilience and Hazards) 2021 (R & H SEPP) | | Section 4.6(1) requires the consent authority to: (a) Consider whether the land is contaminated; (b) If the land is contaminated, to be satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) If the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. Section 4.6(2) is not engaged. | Following a search of Council’s records, including historical files, the Site has been historically used for residential purposes. As such, the Site is unlikely to contain any contamination, and further investigation is not warranted in this case | | RLEP 2014 | | Clause 2.1 Land Zone Uses | The land is zoned R2 Low Density Residential. The objectives of the zone 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. | | Clause 2.3(2) requires the consent authority to ‘have regard’ to the objectives for development in a zone when determining a development application. | Clause 2.3(2) of the LEP does not require a positive finding of consistency or strict satisfaction of the zone objectives. In Jeffrey v Canterbury Bankstown Council (2021) 250 LGERA 340; [2021] NSWLEC 73, Preston CJ confirmed the general presumption created by the Land Use Table, that development permitted with development consent will be compatible with the objectives of the zone. Regard has been had to the R2 zone objectives, which are largely declaratory in nature and achieved by the permissible uses in the Land Use Table. | | Clause 2.7 Demolition requires development consent | Clause 2.7 provides that demolition of a building or work may be carried out only with development consent. The DA seeks such consent. | | City of Ryde Development Control Plan 2014 (RDCP 2014**)** | | | The relevant provisions of the RDCP 2014 have been considered in the merit assessment of the DA by the Council. |

12. The parties agree that the Amended DA does not result in any contravention of any Act any environmental planning instrument or regulation.

13. Having regard to the above, pursuant to s 39(2) of the LEC Act, I am satisfied that the jurisdictional pre-requisites as set out in the LEC Act and the EPA Act (particularly s 4.15(1)) have been met. The parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by ss 34(3) and 39(2) of the LEC Act.

14. I am not required to consider the merit issues of the Amended DA, and I have not done so.

15. I note that the Council has considered the submissions of the objectors, and I further note draft Condition 11 in Annexure A.

16. A decision dated 19 March 2025 by NCAT, relevantly dealing in part to the possible demolition of the masonry structure, the subject of the Amended DA was considered (Magdalena Kaczmarska & Stan Steirnwolf v Alvin Anbanantham Case No 2025/00399458). In relation to an application to demolish the masonry wall (which was part of the proceedings before NCAT) the Member quoted the Dividing Fences Act 1991 (NSW) (DFA), the Tribunal was required to consider a jurisdictional threshold question as to whether the masonry wall provides a sufficient dividing fence. Section 4 of the DFA defines a dividing fence: “dividing fence means a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary”. The Tribunal found that “The existing Structure is structurally sound and otherwise sufficiently divides the adjoining lands……Having considered the evidence and submissions of the parties, the Tribunal is not satisfied that the Applicant has established that the Existing Structure is not a sufficient dividing fence.” In relation to the masonry wall, the Tribunal dismissed the application. The adjoining neighbour relied upon this decision for the Court to dismiss the Amended DA. The present proceedings are determined pursuant to the provisions of the LEC Act and EPA Act together with other relevant environmental planning instruments. As the Applicants are the owners of the Site, the decision by NCAT is not a relevant decision to take into account in the Amended DA for demolition of a structure upon the Applicants’ Site.

17. 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. I shall uphold the appeal and grant consent to the Amended DA subject to Annexure A.

18. The Court notes that the Respondent, as the relevant consent authority, pursuant to s 38(2) of the Environmental Planning and Assessment Regulation 2021, has approved the amendment of Development Application No LDA2025/0027 to include:

19. Demolition Plan Sketch, Plan Number 30543-23 SEP-RC (Sheet 2 of 2) by Brandan Bradan Bowd from C & A Surveyors, dated 12 February 2026.

20. Demolition Report prepared by ‘Adem’ Abbas Abbas – Eco Demolition NSW Pty Ltd dated 13 February 2026; and

21. Structural Statement prepared by Deborah Smee – Acor Consultants Pty Ltd dated 12 February 2026.

22. The Court orders:

23. The appeal is upheld.

24. Development consent is granted to development application LDA2025/0027, as amended, for the demolition of an existing dividing wall adjoining the western boundary at 18 Morvan St West Ryde NSW 2114 being Lot 41 in Deposited Plan 827517 subject to Annexure A.

M Peatman

Acting Commissioner of the Court

Annexure A (244 KB, pdf)

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