Land and Environment Court New South Wales Medium Neutral Citation: Lowe v City of Ryde Council [2021] NSWLEC 1004 Hearing dates: Conciliation conference on 18 December 2020 Date of orders: 22 January 2021 Decision date: 22 January 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) Leave is granted to the Applicant to rely on the amended plans set out in condition 1 of Annexure A. (2) The Court notes that parties' agreement that the parties are to bear their own costs of the proceedings. (3) The appeal is upheld. (4) Development consent is granted to Development Application No. LDA2018/0504 for demolition of the existing structures on the site and construction of an attached dual occupancy on Lot 55 in DP 10373, also known as No 2 Woodbine Crescent, Ryde subject to the conditions of consent in Annexure A. Catchwords: DEVELOPMENT APPEAL – residential development dual occupancy (attached) – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Ryde Local Environmental Plan 2014 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 State Environmental Planning Policy No 55—Remediation of Land Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Texts Cited: Ryde Development Control Plan 2014 Category: Principal judgment Parties: Jade Lowe (First Applicant) Kathryn Lowe (Second Applicant) City of Ryde Council (Respondent) Representation: Counsel: J Merlino (Solicitor) (Applicants) P Kapetas (Solicitor) (Respondent) Solicitors: HWL Ebsworth Lawyers (Applicants) City of Ryde Council (Respondent) File Number(s): 2019/377019 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Residential Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an Appeal against the actual refusal of a residential Development Application No. LDA2018/0504 seeking development consent for the demolition of existing structures and construction of an attached part two/part three storey dual occupancy (the Proposed Development) at 2 Woodbine Crescent, Ryde NSW legally described as Lot 55 in DP 10373 (the Site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 18 December 2020. I have presided over the conciliation conference. 3. 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 granting leave to rely on amended plans, upholding the appeal and granting development consent to the development application subject to conditions. 4. 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' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 5. 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 to be contained in the following instruments: 1. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005; 2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; 3. State Environmental Planning Policy No 55—Remediation of Land; 4. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017; and 5. Ryde Local Environmental Plan 2014 (RLEP). 1. The parties explained how the jurisdictional prerequisites have been satisfied as follows: 1. The Applicant is the owner of the Site. 2. The Proposed Development is for the purpose of a dual occupancy (attached), as defined under RLEP and is permissible with development consent in the R2 Low Density Residential Zone under the RLEP. 3. The Proposed Development is consistent with the provisions, objectives and aims of relevant planning policies and will result in a built form that is appropriate to the locality. 4. The Court can be satisfied that the Proposed Development will be compatible with the character of the local area having regard to the following: 1. The Proposed Development complies with the Height of Building development standard of 9.5m set by cl 4.3 of the RLEP. The Proposal also complies with the building heights in the Building Height Table in Part 3.3 section 2.8.1 of the Ryde Development Control Plan 2014 (RDCP). 2. The Proposed Development complies with the Floor Space Ration (FSR) development standard of 0.5:1 set by cl 4.4 of the RLEP with a total Gross Floor Area (as defined in the RLEP) of 397m2 which equates to an FSR of 0.489:1. 3. The upper floor is sufficiently integrated into the predominant two storey character of the streetscape along Buffalo Road. 1. The Court can be satisfied that the Proposal has considered the flood planning levels on the Site. In accordance with cl 6.3 of the RLEP the Proposal: 1. is compatible with the flood hazard of the land; 2. will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties; 3. incorporates appropriate measures to manage risk to life from flood; 4. will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses; and 5. is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. 1. The DA lodged with the Respondent was notified in accordance with the RDCP. 2. The Respondent received one submission in objection to the DA in relation to Visual Privacy concerns. 3. Amended plans and documentation was submitted by the Applicant and the Respondent notified the amended Proposed Development in accordance with RDCP. 4. In response to this second public notification period, two submissions were received related to visual privacy, overshadowing, cross-viewing of properties, trees near side boundary, and side setback. 5. The Respondent is satisfied that the amended Documents address the concerns raised in the objections as a result of both notification periods 6. Given that the merit issues have been resolved, the Court is not required to make any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 7. I am 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. I adopt the reasons provided by the parties and I also have considered the Statement of Environmental Effects (the SEE) prepared by James S Kim dated December 2018 and I accept that the following jurisdictional prerequisites have been satisfied as follows: 1. In relation to the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, the Site is not located adjacent to the foreshore or a watercourse and appropriate erosion and sediment control measures during the construction phase and adequate drainage system is proposed to control stormwater run-off on site and I am satisfied that the Proposed Development is not likely to have undue impact on the catchment in terms of water quality and quantity, and protection of watercourses, wetlands, riparian lands, remnant vegetation and ecological connectivity. 2. As required by the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a valid updated BASIX Certificate number 984717M issued 26 November 2020 has been provided with the amended plans. 3. As required by the State Environmental Planning Policy No 55—Remediation of Land, cl 7 is satisfied to the extent that I have considered the information provided in the SEE and I accept the conclusion as follows: "The property has been used as residential dwelling house so far. The site is not identified in Council's records as being contaminated or is declared to be an investigation area under Division 2, Part 3 of the Contaminated Land Management Act 1997 in the Section 10.7 (Previously 149) Planning Certificate. Also, the site is not known to have a history of a previous land uses that may have caused contamination under Table 1 'Some Activities that may cause Contamination' of Contaminated Land Planning Guidelines. As such, the site is unlikely to be contaminated and consequently a preliminary contamination assessment is not warranted. The proposal is satisfactory having regard to the relevant matters for consideration under SEPP 55 and the site is suitable for residential use to continue without the need for remediation works." 1. In relation to the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, I have considered the Arborist Report dated 15 November 2018 prepared by Apex Tree & Garden Experts and am satisfied that the conditions of consent includes a requirement to carry out the Proposed Development in accordance with this Arborist Report and the Landscape Plan dated 25 November 2020 Plan Reference Number L001, Sheet 1/1, Issue D. 1. 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. 2. The Court orders: 1. Leave is granted to the Applicant to rely on the amended plans set out in condition 1 of Annexure A. 2. The Court notes that parties' agreement that the parties are to bear their own costs of the proceedings. 3. The appeal is upheld. 4. Development consent is granted to Development Application No. LDA2018/0504 for demolition of the existing structures on the site and construction of an attached dual occupancy on Lot 55 in DP 10373, also known as No 2 Woodbine Crescent, Ryde subject to the conditions of consent in Annexure A. ………………………. E Espinosa Commissioner of the Court Annexure A (261347, 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: 22 January 2021