COMMISSIONER: Lecedar Pty Ltd (the Applicant) has appealed the refusal by City of Ryde Council (the Respondent) of its development application (DA 2019/0325) the demolition of existing structures and the construction of a mixed use development, including a ground floor retail tenancy with multi-storey boarding house accommodation and car parking at ground and lower ground levels (the Proposed Development) at 964 to 970 Victoria Road, West Ryde (the Subject Site).
The Applicant's development application was made with the consent in writing of the two directors of the Applicant entity, the owner of the Site, as can be seen from the DA form, the letter from the applicant dated 24 September 2018, and company extract accompanying the DA form.
The Subject Site is zoned B4 Mixed Use under Ryde Local Environmental Plan 2014 (RLEP). The Proposed Development is permissible with consent on the Subject Site.
The Court notes that the Applicant's plans and materials have been amended as follows:
1. amended architectural plans have been prepared by Peter Hall Architects Pty Ltd, and are referenced in condition 1 of Annexure 'A';
2. amended landscape plans have been prepared by iScape Landscape Architecture and are also referenced in condition 1 of Annexure 'A'; and
3. the Applicant has provided an updated BASIX Certificate No.874611M_07 dated 18 May 2021.
The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.
The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 14 September 2021, and I presided over the conciliation conference.
The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken as part of the conciliation conference, and the Parties confirmed that no objectors had sought to make representations to the Court in relation to the proceedings.
Lecedar Pty Ltd v City of Ryde Council [2021] NSWLEC 1576 | Case summary | Zoe
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 consent to the Applicant's development application, subject to conditions.
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.
There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:
1. in relation to the provisions of cl 7 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP55), the Parties have confirmed, and I accept that:
1. a Stage 1 Preliminary Contamination Assessment of the Site was prepared by ME Tech Consulting Pty Ltd dated 3 August 2019 (DA, tab L). Its key findings, set out in 'Section 7 Conclusion and Recommendations' of the assessment are as follows:
1. the historic use of the Subject Site has been limited to residential and/or commercial purposes;
2. no significant on- or off-site sources of potential contamination of the Subject Site have been identified within the assessment;
3. the buildings which now occupy the Subject Site (which consist of a commercial/residential building and a small sales office) were constructed in the early 1960s, and are suspected to contain hazardous building materials. However, the Subject Site is entirely paved and the underlying soils are unlikely to contain contaminated materials;
1. two residential dwellings that formerly occupied the Subject Site in the 1940s and were demolished in the 1950s. The potential exists that these structures contained hazardous building materials, and that these were poorly managed during the historic demolition works. If present, any such materials would be located beneath the current pavement on the Subject Site;
2. the assessment by ME Tech Consulting Pty Ltd provides recommendations for the treatment of any potential contaminated materials on the Subject Site and these have been incorporated into the Parties' agreed proposed conditions of consent provided at Annexure 'A';
3. having considered whether the land is contaminated, and on the basis of the information provided above (at [(a)] to [(c)]), the provisions of cl 7(1) of SEPP55 are satisfied because:
1. if the land is contaminated the land will be suitable after remediation for the purpose for which the development is proposed to be carried out; and
2. if the land requires remediation to be made suitable for the purpose of the Proposed Development, the land will be remediated before the land is used for that purpose;
1. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), the Applicant has provided BASIX Certificate number: 874611M_07 dated 18 May 2021 in satisfaction of the provisions of SEPP BASIX;
2. in relation to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP(ARH)), the Parties have confirmed that:
1. In relation to the standards set out in clause 30 of SEPP(ARH):
1. the boarding house has 5 or more boarding rooms and a communal open space on the 4th floor;
2. none of the boarding rooms have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 m²;
3. none of the boarding rooms will be occupied by more than 2 adult lodgers;
4. adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger;
5. a boarding room is provided for the boarding house manager;
6. no part of the ground floor of the boarding house that fronts any Street will be used for residential purposes; and
7. at least one parking space (12) will be provided for a bicycle for every 5 boarding rooms, and at least one parking space will be provided for a motorcycle for every 5 boarding rooms.
1. the Amended Proposal is compatible with the character of the local area, as required under the provisions of cl 30 of SEPP(ARH);
1. in relation to the provisions of RLEP, the Parties advise, and I accept that:
1. the land is zoned B4 Mixed Use. Boarding houses are permissible with consent under the provisions of cl 2.3(1)(c) of RLEP;
2. development on the Subject Site is subject to a height of buildings (HoB) development standard of 15.5m under the provisions of cl 4.3 of RLEP, and the Proposed Development as amended complies with the requirements of clause 4.3(2) of the RLEP.
3. development on the Subject Site is subject to the provisions of cl 4.4 of RLEP in relation to the floor space ratio (FSR) development standard, and I am satisfied that:
1. the FSR development standard applicable to the Subject Site is 1.25:1;
2. clause 29(1) of SEPP(ARH) precludes a consent authority from refusing consent to the proposal if its FSR is not more than the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus an additional 0.5:1 pursuant to cl 29(1)(c) of SEPP(ARH), making a maximum FSR of 1.75:1.
3. the FSR of the Proposed Development is 1.746:1, with the gross floor area being 1482m2 and the land area being 849m2;
4. consequently, the Proposed Development complies with the requirements of cl 4.4 of RLEP as amended by cl 29(1)(c) of SEPP(ARH).
1. development on the Subject Site is subject to the provisions of cl 6.1 in relation to acid sulfate soils, in relation to which the Parties have advised, and I accept, that the Acid Sulfate Soils Map in RLEP confirms that the Subject Site is not in any of the classes of land identified as requiring any further consideration.
2. development on the Subject Site is subject to the provisions of cl 6.2 of RLEP concerning earthworks and:
1. pursuant to cl 6.2(3) development consent is required for earthworks, unless the earthworks are (a) exempt development or (b) ancillary to development that is permitted without consent;
2. in deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider various matters set out in cl 6.2(3); and
3. the Proposed Development is acceptable in relation to the provisions of cl 6.2 of RLEP;
1. in relation to cl 6.3(3) of RLEP concerning flood planning:
1. on 14 May 2021 both State Environmental Planning Policy (Flood Planning) 2021 (the Flood SEPP), and the Standard Instrument (Flood Planning) Order 2021 (the Flood Order) were published, both of which commenced 21 July 2021, and
2. the Flood Order inserted cl 5.21 into the Standard Instrument (which is the basis of RLEP). The Flood Order was silent about cl 6.3 RLEP.
3. the Flood SEPP repealed cl 6.3 of the RLEP.
4. however, consistent with the judgment of my colleague Commissioner Bish in I.D.A. Safe Constructions Pty Ltd v Central Coast Council [2021] NSWLEC 1434, referred to hereafter as "IDA", the Parties in this case concur that the Applicant's development application is saved from consideration of the new provisions within cl 5.21 in RLEP, by cl 8 of the Standard Instrument (Local Environmental Plans) Order 2006 (LEP Order) which provides:
8 Application of amending orders
(1) The amendments made by an amending order do not apply to or in respect of any development application that was made, but not determined, before the commencement of the amending order.
(2) (Repealed)
(3) In this clause-
amending order means an order under section 3.20 of the Act that amends the standard instrument prescribed by this Order.
1. the development application the subject of these proceedings was made before the commencement of the LEP Order (21 July 2021).
2. accordingly, the amendments made by the Flood Order (i.e. the insertion of a new cl 5.21 into RLEP) do not apply in respect of the development application the subject of these proceedings.
3. further cl 8 of the LEP Order does not apply to the repeal of cl 6.3, because the repeal of cl 6.3 did not arise from the Flood Order but arose instead from the Flood SEPP;
4. as also noted by Commissioner Bish in IDA, the provisions of cl 1.8 of the applicable plan, in this case RLEP, concern the repeal of planning instruments concerning land to which RLEP applies, and in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189, Basten JA (with whom Payne and McColl JJA agreed) held (at [18]):
"All of that may be accepted, but it is simply beside the point. An amendment to a zoning plan in an LEP, absent some further provision, could not possibly be read as intending to amend a savings provision which operated at the commencement date of the LEP. In other words, unless the savings provision itself were intended to have an ambulatory effect (the proposition rejected above), absent some clear language, the 2015 amendment Plan will not alter that outcome".
1. in the present case, cl 1.8A of RLEP is silent with respect to amendments arising from the Flood SEPP. Accordingly, cl 1.8A of RLEP does not "save" cl 6.3 for consideration in relation to the development application the subject of these proceedings.
2. notwithstanding this, I note as a matter of public interest that the Applicant has provided within its Class 1 application documentation a flood impact assessment from StormCivil dated 28 June 2019. This study concluded that the Proposed Development:
3. will not adversely affect existing flood regimes nor affect neighbouring properties with respect to flood extent nor level;
4. generally meets the freeboard and/or flood compatibility requirements of Part 8.2 Stormwater and Floodplain Management of the Ryde Development Control Plan 2014 (RDCP); and
5. generally meets the flood planning considerations contained in Section 2.0 Flooding and Overland Flow in the Stormwater Management Technical Manual within Part 8.2 of RDCP;
1. the Applicant's development application was notified between 5 and 25 March 2020, consistent with the provisions of cl 77 and Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) and of the RDCP, and:
1. three submissions were received in response to that notification; and
2. the Respondent has confirmed that the matters raised in those submissions were considered by the Parties in reaching agreement to resolve contentions in this appeal.
1. The RDCP applies to the Proposed Development including, relevantly, Part 3.5 concerning Boarding Houses, and the Respondent accepts that, subject to the Parties' agreed conditions of consent, the Proposed Development complies with the objectives and controls in Part 3.5 of RDCP.
There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act.
Having considered the advice of the Parties, provided above at [10], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.
I am further satisfied that the Parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.
As the Parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties' decision.
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.
I have previously directed that:
1. the Respondent, City of Ryde Council, is to lodge the amendment of the development application in the NSW Planning Portal;
2. the Applicant is to file a copy of the amended development application as lodged on the NSW Planning Portal with the Court;
The Parties have now complied with Court's directions above (at [16]) and so I can make final orders to dispose of this appeal.
[2]
Orders
The Court orders:
1. The Appeal is upheld.
2. Development consent is granted to development application 2019/0325 for construction of a mixed use development, including a ground floor retail tenancy and four levels of boarding house accommodation, at 964-970 Victoria Road, West Ryde, subject to the conditions set out in Annexure 'A' hereto.
The Respondent is directed to upload the development consent to the Planning Portal within 7 days of this judgment.
[3]
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Decision last updated: 01 October 2021