Land and Environment Court New South Wales Medium Neutral Citation: Zheng v City of Ryde Council [2020] NSWLEC 1328 Hearing dates: Conciliation conference on 24 July 2020 Date of orders: 24 July 2020 Decision date: 24 July 2020 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The clause 4.6 request in relation to cl 4.1B(2)(a) of Ryde Local Environmental Plan 2014 prepared by DDC dated April 2020 is well founded and is upheld. (2) Each party to pay its own costs. (3) Appeal upheld. (4) Development Application LDA 2019/0305 for the demolition of existing structures and construction of a dual occupancy development at 25 Sturdee Street, North Ryde is approved subject to the conditions at Annexure A. Catchwords: APPEAL – development application – dwelling house – conciliation conference – agreement reached – breach of minimum lot size development standard Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Ryde Local Environmental Plan 2014 State Environmental Planning Policy No 55 – Remediation of Land Category: Principal judgment Parties: Zhao Zheng (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): 2019/363828 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a dual occupancy development at 25 Sturdee Street, North Ryde. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7[ below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 ("LEC Act"). The conciliation conference was held today, 24 July 2020. I presided over the conciliation conference. 3. At the conciliation conference, 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. The decision agreed upon is the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. 4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The proposed development is for the purposes of a "dual occupancy (attached)" as defined in the Dictionary to Ryde Local Environmental Plan 2014 ("RLEP 2014"), which is a permissible use in the R2 Low Density Residential Zone in which the site is located, pursuant to the provisions of RLEP 2014. * I am satisfied that development consent can be granted notwithstanding the development standard for the minimum lot size for a dual occupancy, pursuant to cl 4.6 of the RLEP 2014. Pursuant to cl 4.1B(2)(a) of the RLEP 2014, the minimum lot size for a dual occupancy (attached) development is 580m2. The subject site has an area of 574.5m2, and is therefore 5.5m2 (or less than 1%) smaller than the minimum lot size. I am satisfied that the written request of DDC dated April 2020, lodged pursuant to cl 4.6 of the RLEP 2014, adequately establishes sufficient environmental planning grounds that justify the breach in the minimum lot size by outlining that it is a corner site with a large footpath on the corner of the site which is visually attributable to the site (even though not included in the site area), and with large setbacks, which allows the development to be consistent with the streetscape and urban character. This additional footpath area that is visually attributable to the site, and the larger setback that achieves the streetscape outcome, justifies the minor non-compliance with the minimum lot size. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the variation to the minimum lot size control is minor and will not be appreciated from either the public or private domains, and does not lead to any impact beyond that which would be contemplated by a dwelling house or dual occupancy development on a compliant site. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. * The proposed development complies with the other applicable development standards in the RLEP 2014 for height, floor space ratio and minimum site frontage. * Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. As the site has a history of use for residential purposes, it is unlikely to be contaminated. * The development application is accompanied by an updated BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act compels me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, 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. 3. The Court orders that: 1. The clause 4.6 request in relation to cl 4.1B(2)(a) of Ryde Local Environmental Plan 2014 prepared by DDC dated April 2020 is well founded and is upheld. 2. Each party to pay its own costs. 3. Appeal upheld. 4. Development Application LDA 2019/0305 for the demolition of existing structures and construction of a dual occupancy development at 25 Sturdee Street, North Ryde is approved subject to the conditions at Annexure A. …………………….. J Gray Commissioner of the Court Annexure A (243400, pdf) ********** Amendments 13 August 2020 - Pursuant to UCPR Rule 36.17 of the Uniform Civil Procedure Rules 2005, by the request of the parties and the Court's own motion, amend condition 3 of Annexure A so that the date of the BASIX certificate is amended from "23 June 2020" to "23 July 2020" so that condition 3 in Annexure A now reads: "3. BASIX. Compliance with all commitments listed in BASIX Certificate numbered 1029014M_03, dated 23 July 2020." DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 August 2020