Land and Environment Court New South Wales Medium Neutral Citation: Yu v City of Ryde Council [2020] NSWLEC 1423 Hearing dates: Conciliation conference on 10 September 2020 Date of orders: 10 September 2020 Decision date: 10 September 2020 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) Leave is granted to the Applicant to rely on the following amended plans: (a) DA01 Rev 03 Site Plan; DA 03 Rev 03 Ground Floor Plan; and DA08 Rev 03 South Elevation, Section 02, Section 01 all dated 11/08/20 prepared by SEE Architects; and (b) Site Stormwater Drainage Layout Plan 19008-C01 Rev 2 dated 6.08.20 prepared by A & G Consulting Engineers Pty Ltd. (2) The Applicant's clause 4.6 request prepared by Chapman Planning Pty Ltd dated 7 August 2020 that seeks to justify the contravention of the road frontage width development standard in clause 4.1B(2)(b) of the Ryde Local Environmental Plan 2014 is upheld. (3) The appeal is upheld. (4) Development consent is granted to LDA2019/0188 to demolish the existing building and construct an attached dual occupancy and to strata subdivide that development located at 24 Richmond Street, Denistone East subject to the conditions at Annexure "A". Catchwords: APPEAL – development application – dual occupancy – conciliation conference – breach of minimum site frontage development standard - agreement reached 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 (Exempt and Complying Development Codes) 2008 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Ryde Development Control Plan 2014 Category: Principal judgment Parties: Yue Yu (Applicant) City of Ryde Council (Respondent) Representation: Counsel: G Christmas (Solicitor) (Applicant) M Chillari (Solicitor) (Respondent) Solicitors: Apex Planning and Environment Law (Applicant) City of Ryde Council (Respondent) File Number(s): 2020/20297 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a development application to demolish the existing building and construct an attached dual occupancy at 24 Richmond Street, Denistone East, together with strata subdivision of the two dwellings that comprise the dual occupancy. 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 Environmental Planning and Assessment Act 1979 (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 on 10 September 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 agreement is supported by a statement of reasons for upholding the appeal, which was provided by email prior to the conciliation conference and outlines the background and jurisdictional considerations. 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: 1. 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. 2. I am satisfied that consent should be granted notwithstanding the contravention of the development standard for the minimum road frontage for a dual occupancy, pursuant to cl 4.6 of the RLEP 2014. Pursuant to cl 4.1B(2)(b) of the RLEP 2014, the minimum road frontage for a dual occupancy (attached) development is 20m. The road frontage of the site of the proposed development is 19.81m and therefore falls short of the required road frontage by 190mm, or 0.95%. I am satisfied that: 1. The written request of Chapman Planning Pty Ltd dated 7 August 2020, lodged pursuant to cl 4.6 of the RLEP 2014, adequately establishes sufficient environmental planning grounds that justify the breach in the minimum road frontage by demonstrating that the 190mm non-compliance is the result of the shape of the allotment, the lot is otherwise of a sufficient size to accommodate the proposal on a compliant lot size under the same clause, and the site is of sufficient width to accommodate a dual occupancy under a Complying Development Certificate ("CDC") in Part 3B of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. In circumstances where the proposal meets the applicable built form controls under the Ryde Development Control Plan 2014 ("RDCP 2014"), with which compliance would not be necessary under a CDC, I consider that these three grounds are sufficient to justify the minor non-compliance with the road frontage development standard. 2. The written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the variation to the minimum road frontage is minor and will not be noticeable when viewed from the public domain, and does not lead to any impact beyond that which would be contemplated by a dual occupancy development on a compliant site. 3. The proposal is in the public interest because: 1. Based on the content of the written request, it is consistent with the objectives of the zone, and 2. It is consistent with the objective of the development standard on the basis that the non-compliance is so negligible that it is not discernible, and that there is compliance with the minimum lot size in cl 4.1B(2). 1. The proposed development complies with the other applicable development standards in the RLEP 2014 for height, floor space ratio and minimum lot size. 2. 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. 3. The development application in the Class 1 Application was accompanied by a 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. Leave is granted to the Applicant to rely on the following amended plans: 1. DA01 Rev 03 Site Plan; DA 03 Rev 03 Ground Floor Plan; and DA08 Rev 03 South Elevation, Section 02, Section 01 all dated 11/08/20 prepared by SEE Architects; and 2. Site Stormwater Drainage Layout Plan 19008-C01 Rev 2 dated 6.08.20 prepared by A & G Consulting Engineers Pty Ltd. 1. The Applicant's clause 4.6 request prepared by Chapman Planning Pty Ltd dated 7 August 2020 that seeks to justify the contravention of the road frontage width development standard in clause 4.1B(2)(b) of the Ryde Local Environmental Plan 2014 is upheld. 2. The appeal is upheld. 3. Development consent is granted to LDA2019/0188 to demolish the existing building and construct an attached dual occupancy and to strata subdivide that development located at 24 Richmond Street, Denistone East subject to the conditions at Annexure "A". ………………………. J Gray Commissioner of the Court Annexure A (243333, pdf) ********** 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: 10 September 2020