Land and Environment Court New South Wales Medium Neutral Citation: Ghazi Al Ali Architects Pty Ltd v City of Ryde Council [2022] NSWLEC 1645 Hearing dates: 21 and 22 July 2022 Date of orders: 22 November 2022 Decision date: 22 November 2022 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The written request pursuant to clause 4.6 of the Ryde Local Environmental Plan 2014 to justify the contravention of the height of building development standard is upheld. (2) The appeal is upheld. (3) Development application no LDA 2021/0285 seeking development consent for the demolition of existing structures and the construction of a boarding house at 85 and 87 Anzac Avenue, West Ryde, legally described as Lots 27 and 28 in DP 10102, is determined by granting consent to the application subject to the conditions in Annexure A. (4) All Exhibits are retained. Catchwords: DEVELOPMENT APPEAL – boarding house – acoustic impacts on amenity of adjoining neighbours - orders Legislation Cited: Environmental Planning and Assessment Act 1979, Pt 4, ss 4.15, 4.16, 8.7 Interpretation Act 1987, s 30A Local Land Services Act 2013, s60O Protection of the Environment Operations Act 1997, Pt 8.6 Ryde Local Environmental Plan 2014, cll 4.3, 4.4, 4.6, 5.21, 6.1, 6.2, 6.4 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30 State Environmental Planning Policy (Biodiversity & Conservation) 2021, Ch 2, s 2.7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, s 2 of Sch 7A State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 State Environmental Planning Policy No. 55 – Remediation of Land, cl 7 Cases Cited: Baker Kavanagh Architects v Waverley Council [2004] NSWLEC 542 Freedom Development Group v Willoughby City Council [2020] NSWLEC 1037 Wehbe v Pittwater Council [2007] NSWLEC 827 Zhang v Canterbury City Council (2001) 51 NSWLR 589 Texts Cited: Australian Building Codes Board, Building Code of Australia (1988) NSW Environmental Protection Agency, Noise Policy for Industry (2017) NSW Environmental Protection Agency, Noise Guide for Local Government (2013) Ryde Development Control Plan 2014 Category: Principal judgment Parties: Ghazi Al Ali Architects Pty Ltd (Applicant) City of Ryde Council (Respondent) Representation: Counsel: T To (Applicant) Dr S Berveling (Respondent) Solicitors: Conomos Legal (Applicant) City of Ryde Council (Respondent) File Number(s): 2021/298687 Publication restriction: Nil Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of Development Application No. LDA 2021/0285 seeking development consent for demolition of existing structures and the construction of a boarding house (the Proposed Development) at 85 and 87 Anzac Avenue, West Ryde, legally described as Lots 27 and 28 in DP 10102 (the Site). As at the commencement of the hearing, the Proposed Development comprises the following: 1. A four-storey boarding house in two buildings, A and B, comprising 45 double rooms, 20 single rooms, and a manager's room; 2. Two basement parking levels, providing for 34 car parking spaces, 14 motorcycles spaces and 14 bicycle spaces; and 3. Communal open spaces on the ground floor between buildings A and B and at the western (rear) side of the fourth storey (level 03) of building B, and a communal living room on the ground floor in building B. 1. The Proposed Development is to be assessed and evaluated as a boarding house against the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP), notwithstanding its repeal. This is by operation of the savings provisions of ss 2(1)(a) and 2(2) in Sch 7A, of State Environmental Planning Policy (Housing) 2021. 2. The proceedings commenced at the Site and the Court heard from a number of objectors. A copy of the objector's written submissions together with the written submissions of other objectors is included in the Respondent's Bundle of Documents (Ex 2). 3. The Applicant's case is that development consent should be granted to the Proposed Development for the following reasons: 1. The Proposed Development is otherwise well-suited to its context being in an R4 High Density Residential zone. It is adjoined on each side by existing residential flat buildings which are also within the R4 High Density Residential zone; 2. A short distance of about 70m to the west is a large area of open space known as Anzac Park. About a quarter of this park is embellished with a variety of play equipment, including an elevated climbing structure. The playground suits a wide range of ages and offers shading, BBQ facilities, swings and toilets, including an accessible toilet. The remainder of Anzac Park contains open lawned areas bounded by walking paths that allow for both active and passive recreation, and picnics; and 3. The Site is also close (less than 400m) to West Ryde train station, and the shops and other services available in the commercial centre around the station. 1. The Respondent's case is set out in the Amended Statement of Facts and Contentions filed 7 July 2022 (ASOFAC) (Ex 1) where the contentions remaining in dispute are significantly reduced. The issue remaining unresolved by the Draft/Proposed Conditions of Consent relates to the acoustic impact of the Proposed Development on the adjoining neighbours and whether that impact is acceptable. At the crux of the issue for determination by the Court is the methodology of assessment of the acoustic impact of the Proposed Development. 2. The Respondent and Applicant each provided the Court with written submissions which have been of assistance and are quoted where relevant throughout the judgment. Is the acoustic impact on adjoining neighbours acceptable? (Contention 3) 1. The primary issue for determination, namely, the acoustic impact of the Proposed Development on the amenity of the adjoining properties, is particularised in Contention 3 of the ASOFAC, and contends that the Proposed Development will result in unacceptable impacts on the amenity of adjoining neighbours. The remaining particulars (f) and (i) of this contention that are pressed by the Respondent read as follows: "(f) The subject development has a higher density on the site then (sic) a residential flat building and has potential for a greater acoustic impact than if the site was used as a residence or residential flat building. (1) The amended application has not identified the potential noise impact at affected residential receivers (various levels) upon 83 and 89 Anzac Avenue from people using the common room, common open spaces and private open space areas at the same time." "(i) The proposal fails when assessed against the following control of Section 3.2 Privacy (Acoustic) and Amenity of Part 3.5 Boarding Houses of DCP 2014. c. Boarding houses are to be designed to minimise and mitigate any impacts on the visual and acoustic privacy of neighbouring buildings and on the amenity of future residents." 1. The Respondent adopts the Applicant's submission, as summarised by the Applicant's Counsel, that the main issue of disagreement between the acoustic experts is whether the acoustic performance of the development should be regulated by means of a criterion, which goes to the methodology of assessment of the acoustic impact of the Proposed Development. 2. Acoustic impacts of a Proposed Development are environmental impacts on the built environment and social impacts in the locality. Such impacts are a matter to be taken into consideration pursuant to s 4.15(1)(b) of the EPA Act, in addition to the need to consider a Development Control Plan (DCP), submissions made in response to the Proposed Development and consideration of the public interest. The Applicant submits that the Court should evaluate acoustic impact as an aspect of the likely impacts of development (Applicant written submissions, par 20) and that in doing so, it is required to consider the provisions, inter alia, of any environmental planning instrument and any development control plan (s 4.15(1)(a) of the EPA Act). 3. It is agreed that nothing in the ARH SEPP or the Ryde Local Environmental Plan 2014 (RLEP) prescribe any acoustic criteria for boarding house development. Part 3.5 of the Ryde Development Control Plan 2014 (RDCP) is a focal point of consideration and the Applicant refers the Court to the decision of Zhang v Canterbury City Council (2001) 51 NSWLR 589. 4. The particulars of contention 3 identify that it is the use of the communal open spaces, communal living area, and private balconies that are of concern in relation to acoustic impacts. 5. The parties rely on the Joint Expert Report (JER) prepared by Neil Gross for the Applicant and by Steven Cooper for the Respondent dated and filed 15 July 2022 (Ex 3). The main issue of disagreement between the acoustic experts is whether the acoustic performance of the Proposed Development should be regulated by means of a numerical criterion or, expressed another way, as the Applicant puts it, there is "a threshold disagreement about the acoustic criterion that ought to be used to assess acceptability" of the Proposed Development. 6. The acoustic experts agree that whilst the RDCP in Part 3.5 contains a number of objectives and control an acceptable level of amenity, the RDCP does not of itself contain a numerical criterion to achieve such a level of acoustic amenity. The question for determination by the Court is whether the Court has sufficient evidence to assess whether the Proposed Development satisfies the noise objectives of the RLEP in order to find and conclude that the acoustic impact of the Proposed Development on adjoining neighbours is acceptable. Mr Cooper, for the Respondent, says that without using the intrusive noise criteria, the Court is unable to assess whether the Proposed Development satisfies the noise objectives, whereas Mr Gross says that the combination of the design of the Proposed Development together with terms of the Plan of Management (POM), the Court can be satisfied that the acoustic impact of the Proposed Development on adjoining neighbours is acceptable. 7. The Respondent's acoustic expert, Mr Cooper advised the Court that, whilst the RDCP does not indicate a numerical criterion, for a very long time an accepted criterion for determining an acceptable level of noise emanating from the property is Background + 5dB(A), which criterion is now seen in the Environmental Protection Agency's (EPA) Noise Policy for Industry (2017) (NPfI) and the Noise Guide for Local Government (2013) (NGLG), and, seen previously in Australian Standard 1055. Mr Cooper is critical of the assessment carried out by Mr Gross on behalf of the Applicant, as being inadequate to assess impacts for the reason that it does not predict every noise from every component of use of the proposed boarding house. Mr Cooper's evidence from par 111 of the JER is as follows: "The concept from Gross of not using the intrusiveness criteria for assessment purposes but not identifying what acoustic criteria would satisfy the noise objectives in Part 3.5 of the DCP does not demonstrate compliance with the DCP, or assist the Court in determining how the proposed development satisfies the noise objectives in Part 3.5 of the DCP." 1. Mr Cooper points to four decisions in which he says the Court applied a background + 5dB(A) criterion (JER at par 103-107). The Respondent submits that the issue of acoustic criteria was an issue in dispute in the decision of Freedom Development Group v Willoughby City Council [2020] NSWLEC 1037 at [25]-[26],[101]. That decision concerned a Development Application for a 31 room boarding house where the Court accepted the appropriateness of the measurable criterion of Background + 5dB(A) at [101]. 2. The Applicant submits (Applicant Written Submissions at par 75) that: "Examination of those decisions show none where the result of a determination by the Court to apply the criteria, seemingly because they involved agreements by relevant experts in those cases. There is no discussion in any of the judgments as to the appropriateness of such criterion, or reasoning, simply as no such issue fell to be decided. None of the decisions are of any assistance. The decisions also do not contain much factual detail about acoustic matters which might otherwise permit any informed consideration - in at least one case, the boarding house development was part of a mixed use scheme, with a commercial tenancy to which different criteria apply." 1. I also accept that these decisions referred to by Mr Cooper, apart from not providing any real assistance in these proceedings, are not binding. 2. The Applicant submits that Mr Cooper "also says that if this criteria was to be applied, it would result in an acceptable acoustic impact" (JER, par 108). Mr Cooper also says this would 'comply' with Part 3.5 of the RDCP (Applicant Written Submissions par 16). 3. Mr Cooper does not agree with the subjective approach of Mr Gross and says that it is necessary to be provided a proper acoustic analysis of the proposal (JER at [121]). Mr Cooper's evidence from par 108 of the JER is as follows: "the use of intrusiveness criteria has been applied for other boarding houses. Compliance with the background + 5dB(A) limit would from the NPfL result in an acceptable noise level. This would then comply with Part 3.5 of the DCP." 1. Mr Gross says that there is no numerical criteria that is applicable to residential uses, including a boarding house. Mr Gross advised the Court that the level of noise emanating from the Proposed Development will exceed Background + 5dB(A) but it becomes acceptable by reason of the POM. 2. It is agreed that Part 3.5 of the RDCP contains the relevant noise or acoustic controls and it is these provisions against which the Court is required to assess the Proposed Development. What does Part 3.5 of the RDCP require? 1. The evidence in the JER at par 115 is that under the RDCP there is a requirement for the Applicant to ensure the proposed boarding house satisfies the objectives in Part 3.5 of the DCP. Part 3 of the RDCP provides controls for various development types and Part 3.5 of the RDCP deals with Boarding Houses. One relevant objective of Part 3.5 is stated in clause 1.3.4 as follows: "To encourage appropriate design of boarding house development to ensure the impact and operation does not interfere with surrounding land uses and amenity." (Emphasis added) 1. This objective is sought to be given effect by the design guidance provided in Part 3.5 of the RDCP which is divided into sections. Section 1.0 provides an introduction, including the Objectives at cl 1.3. Section 2.0 is headed 'Location and Character'. This section is organised to deal separately with boarding houses to which the ARH SEPP applies (section 2.3 of Part 3.5, RDCP), and those to which the ARH SEPP does not apply (section 2.4 of Part 3.5, RDCP). 2. Despite the name 'Location and Character', the content of Section 2.0 prescribes, in some detail, design requirements for various components of a boarding house such as the size and scale, parking and traffic and, for non-ARH SEPP boarding houses, also room sizes, communal living room size and solar access requirements, private open space, communal open space. None of these requirements, for ARH SEPP or non-ARH SEPP boarding houses, specify any acoustic criteria. 3. Section 3.0 of Part 3.5 of the RDCP is headed 'Other Design Requirements'. These design requirements are common to all boarding house developments, regardless of whether the ARH SEPP applies to them or not. The introductory words of Section 3.0 include as follows: "3.0 OTHER DESIGN REQUIREMENTS Boarding houses, are generally for occupants who are unrelated. It is therefore important to maintain a level of safety, amenity and security for all occupants in the design while providing for opportunities for social interaction. Proposals should also consider the impact of Boarding Houses on adjoining properties, where both noise disturbance and visual intrusion should be minimised. …" 1. There are a number of objectives for Section 3.0, stated in Section 3.1 where the first objective, clause 3.1.1 is relevant to this contention and reads as follows: "1. To ensure all new boarding houses and building conversions are designed to provide an acceptable level of safety, amenity and privacy for occupants of boarding houses, and also for occupants of neighbouring developments." 1. Section 3.2 of Part 3.5 is headed 'Privacy (Acoustic and Visual) & Amenity'. It is the only section of Part 3.5 of the RDCP that provides a control relating to acoustic privacy of neighbouring buildings and amenity of future residents. It is the only control that identifies design requirements specific to acoustic matters and I include it in full as follows: "3.2 Privacy (Acoustic and Visual) and Amenity Controls a. The main entrance of the boarding house is to be located and designed to address the front (street) elevation. b. Accessways to the front entrance of the boarding house are to be located away from windows to boarding rooms to maximise privacy and amenity for lodgers. c. Boarding houses are to be designed to minimise and mitigate any impacts on the visual and acoustic privacy of neighbouring buildings and on the amenity of future residents. d. An acoustic report prepared by a suitably qualified acoustic consultant may be required where there is the potential for noise impacts on occupants and neighbours." 1. The Applicant submits that only the control in Section 3.2(c) of Part 3.5 of the RDCP is in apparent issue in these proceedings. The relevant controls require boarding houses to be designed to minimise and mitigate any impacts on acoustic privacy of neighbouring buildings and on the amenity of future residents (control (c)) and the preparation of an acoustic report (control (d)). 2. The experts have agreed that the RDCP does not specify how acoustic impact is to be assessed and they have agreed that the RDCP does not specify any acoustic criterion to be met. Notwithstanding this agreement, the Court heard extensive evidence and arguments as to the content and relevance of the NPfI and the NGLG. I summarise the arguments and the evidence below before undertaking the assessment pursuant to Part 3.5 of the RDCP. Are the EPA noise policy documents relevant and applicable to the acoustic impact assessment of a boarding house as required by Part 3.5 of the RDCP? 1. Two policy documents published by the EPA have been cited by the acoustic experts namely the NGLG and the NPfI. 2. The Applicant submits that "neither prescribes a numerical acoustic criterion for boarding house (or other residential) development, nor mandates any modelled assessment for residential development generally" (Applicant written submissions par 38). The Applicant submits further that "[t]here is another compelling reason why the background + 5dB(A) criterion is inappropriate to apply to residential use generally (and why it is left to regulatory enforcement). This is because ordinary incidents of residential uses will, inevitably, exceed the criterion from time to time." (Applicant Written Submissions par 71). I will come back to enforcement of the POM as the Respondent raises a concern in cross examination and written submissions arising from Contention 9, but not particularised as such. 3. Mr Cooper refers to an amenity criterion in the NPfI set out in Table 2.2 of the NPfL, partly reproduced below. The Applicant submits that "the NPfI sets up dual screening criteria as part of evaluating industrial noise […] and are similarly qualified by the EPA as not being used directly as a regulatory limit" (Applicant's Written Submissions, par 56). Fig 1: Extract of Table 2.2 of the NPfL 1. Mr Gross undertakes an analysis in the Acoustic Supplementary Report of various worst-case scenarios and the Applicant submits that: "This analysis demonstrates that, if used as a regulatory limit, the noise would easily meet the urban residential amenity criterion in the daytime period, 60dB(A) and meet or be marginally higher (by about 1db(A)) than the evening period 6-10pm amenity criterion, 50db(A), 6-10pm (noting the adjustment for the different periods)." (Applicant Written Submissions par 81) 1. There are other issues arising from the policy documents cited by the experts, NPfI and NGLG. The Applicant submits as follows (Written Submissions par 39 – 40): "The NGLG, as its name suggests, is a guide for local government in dealing with 'day-to-day management of noise' and 'how to assess and manage noise issues': Overview. It is self-evidently not a guide that seeks to identify criteria or methods for assessment of development proposals. The Overview however identifies some specific policies for specific guidance of particular kinds of noise – industrial noise, road traffic noise and construction noise. The Industrial Noise Policy (since replaced by the NPfI) is identified as dealing with industrial noise." 1. Mr Cooper quotes and relies upon the NPfI (JER, pages 10-11). At par [85], he recognises the objective of Part 3.5 of RDCP 2014 "relates to acceptable noise". However, he then seeks to apply the NPfI for the proposition that "compliance with the intrusiveness target may be considered acceptable". 2. The Applicant addresses the concept of intrusive noise, relied on by Mr Cooper in his evidence, and explains why intrusive noise is a measure for compliance and enforcement rather than a tool to evaluate a development proposal for a boarding house (Written Submissions par 42-43) as follows: "Part 2 of the NGLG provides guidance to authorised officers about how to measure and evaluate when noise is offensive noise, which is proscribed by legislation. As part of that guidance, the EPA explains an acoustic concept 'intrusive noise', in section 2.2.1 (NGLG, page 2.7). In short, intrusiveness is an acoustic concept that involves a numerical threshold above background. Relevant portions of section 2.2.1 are reproduced below: It is clear that the EPA is not, in the NGLG, identifying an intrusiveness noise criterion for evaluation of development proposals. That is left to councils, through adoption of policies, such as a development control plan – this is why the EPA "encourages" councils to do so, to specify intrusive noise levels and appropriate descriptors for particular activities in certain situations and locations." 1. The Applicant explains in Written Submissions (par 44 - 46), that Part 3 of the NGLG "describes 'how current planning instruments and policies can prevent noise problems from arising'. In Section 3.1 this is described at the level of strategic planning, zoning in local environmental plans, and development control plans." I take note that, for local environmental plans, the NGLG states as follows: "Local Environmental Plans (LEPs) guide decisions for local government areas. Through zoning, application of land uses and principal development standards, they enable councils to manage the way in which land is used. For noise control, this may mean separating land uses that are inherently noisy from areas and land uses where the expectation is for a quieter environment." (Emphasis added) 1. The Applicant submits further in Written Submissions that: "46. It is clear, by permissibility in the R4 High Density Residential zone, boarding house development is not considered to be any more inherently noisy than other residential accommodation also permitted in the zone." 1. Mr Gross's evidence is that the NPfI or the NGLG should be used to assess mechanical plant and commercial operations, but not the noise from residents undertaking normal activities within a residential development (JER par 73). Mr Gross goes on to say that he does not agree that the "intrusive criterion can be used to understand the likely extent of any impacts which should inform the optimisation of the design and determine how stringent the Plan of Management/House rules needs to be." (JER par 74) and confirms his expert opinion that "[i]n the absence of a council policy, intrusive noise would not automatically be considered offensive." (JER par 76). 2. Finally, Mr Gross expresses his opinion that (in JER par 77) "[i]t does not seem sensible for Council to state that boarding houses are permissible in a zone with other multi storey residential buildings, have requirements for the boarding houses to have ground level common areas with solar access and amenities such as BBQs which can't be at the front of the building and then apply a background + 5 criterion to noise generation. This approach effectively bans boarding houses where a common area is overlooked." 1. Applicant Written Submissions par 49-51: "49. In short, Mr Cooper seeks to apply a criterion not specified in RDCP 2014, by reference to a non-statutory policy, the NPfI, that does not apply (and was never intended to apply) to a boarding house. The Court should reject this approach. 50. The NPfI is intended for industrial development. This is explicit throughout. In the Introduction, the NPfI states: and 51. The NPfI is explicit in terms of the land uses to which it applies: section 1.4. " 1. Mr Cooper quotes Section 2.3 of the NPfI as to Project intrusiveness noise level: "The intrusiveness of an industrial noise source may generally be considered acceptable if the level of noise from the source (represented by the LAeq descriptor), measured over a 15- minute period, does not exceed the background noise level by more than 5 dB when beyond a minimum threshold. This intrusiveness noise level seeks to limit the degree of change a new noise source introduces to an existing environment. To account for the temporal variation of background noise levels, the method outlined in Fact Sheet A is required for determining the background noise level or rating background noise level (RBL) to be used in the assessment. The outcome of this approach aims to ensure that the intrusiveness noise level is being met for at least 90% of the time periods over which annoyance reactions can occur (taken to be periods of 15 minutes). The intrusiveness noise level is determined as follows: " 1. The Applicant notes that at par [88] of the JER, Mr Cooper extracts a passage from Section 2.3 of the NPfI, in discussing how the principle of intrusiveness is applied in the NPfI. That is, in an industrial setting, it is the EPA's policy that the intrusiveness of an industrial noise source may be acceptable if an intrusiveness criterion of background + 5dB is met. It also does not exclude acceptability of noise higher than this criterion (Applicant Written Submissions par 53-54). Relevantly, the Applicant notes that Mr Cooper omitted from his extract of Section 2.3 an important qualification as follows: 1. The Applicant submits at par 90 of written submissions that Council's acoustic expert invites the Court to treat the intrusiveness criterion, expressly used to evaluate industrial noise sources as the parameter for acceptable noise in a residential context. I agree that nothing in the NPfI requires, or justifies this. 2. Mr Cooper gives a number of examples of decisions from this Court where "the use of the intrusiveness criteria has been applied for other boarding houses. (JER page 14 par 103 – 107) 3. Ultimately, Mr Cooper does not agree with Mr Gross' subjective approach and concludes that "without provision of a numerical criteria that identifies an adverse acoustic impact and the provision of management or physical noise controls to achieve a specified noise limit then the relevance/suitability of the controls cannot be assessed." (JER par 112). Again, at par 182 of the JER, Mr Cooper notes that: "with the rejection of the intrusiveness target by the Applicant's acoustic expert and the failure of the Applicant's expert to identify what noise emissions levels satisfy the acoustic objectives of Part 3.5 of the DCP, the Court has no material on how the proposed development will operate and what restrictions are required to satisfy the acoustic objective of Part 3.5 of the DCP." 1. The Applicant submits that the Court should reject Mr Cooper's approach because "what he seeks to do is apply a criterion not specified in the RDCP, by reference to a non-statutory policy, the NPfI (par 55, 60, 61 and 68) and a Boarding Housing, being a permitted use in the R4 High Density Residential Zone, is not an industrial use, the NPfI does not apply to a boarding house." (Applicant's Written Submissions par 49). The Applicant submits further that: "There is no warrant for necessarily applying the same intrusiveness criterion to residential noise, let alone selectively to one form of residential accommodation. This is a policy decision that is left to, and should be made (by councils) as part of strategic planning decisions such as the development of a development control plan – which would go through mandated community consultation and participation." (Written Submissions par 55) 1. I accept and adopt the Applicant's submission as follows: "60. In this context, the Court should not apply a numerical criterion to the assessment of the subject boarding house. That would be entering into the policy-making realm that is reserved for councils and agencies such as the EPA. As the NGLG makes explicit the adoption of such policies is how such criteria should be introduced. 61. The ARH SEPP, RLEP 2014, RDCP 2014 and regulatory context explained by the NGLG also shows that there is no specific acoustic criterion applied to residential accommodation land use – much less a boarding house (which is a species of residential accommodation)." 1. For these reasons, I find that the two EPA noise policies, namely the NPfI and the NGLG, may provide useful guidance in relation to the enforcement and regulatory function of authorised officers of local councils such as the Respondent in relation to intrusive or even offensive noise, however, these policies are neither directly applicable to boarding houses nor do they provide assessment criteria for the Proposed Development. I find that in the absence of mandated acoustic criterion, the Court's focal point is on the acoustic objectives and controls in Part 3.5 of the RDCP. 2. The relevant controls in Sections 3.2(c) and (d) of Part 3.5 of the RDCP require boarding houses to be designed to minimise and mitigate any impacts on acoustic privacy of neighbouring buildings and on the amenity of future residents (control (c)) and the preparation of an acoustic report (control (d)). Accordingly, I will now consider the design of the Proposed Development and then I will look at the POM to reach a conclusion as to whether the use of the communal open spaces, communal living area, and private balconies of the Proposed Development will have acceptable acoustic impacts on adjoining neighbours. What are the design elements of the proposed boarding house which minimise acoustic privacy impacts from the use of the communal open spaces, communal living area, and private balconies? 1. In relation to the design of the Proposed Development in the context of the objectives and controls quoted above from Part 3.5 the RDCP, the Applicant submits helpfully, that: "35 The Court can be satisfied that the boarding house has been designed to minimise acoustic privacy impacts from the use of these areas. This is so because: 35.1 The communal open spaces, one at ground floor and the other on level 03 of building B, have been separated into distinct areas, distant from each other. This separation has an intrinsic consequence of providing future residents choice of areas to use and by design distributes and lessens the likely number of persons using each area, compared to the situation if there was one larger communal open space. 35.2 The design of each communal open space has been directed to further mitigate the possibility of large congregations. For the ground floor open space, the arrangement of landscape features, seating and BBQ facility breaks up the space such that it lends itself to smaller group use. This is reinforced by the adjacent positioning of the communal living room on the ground floor, which provides an enclosed area that is designed to encourage social interaction - eating, sitting, watching TV. The layout and arrangement of fixed and sliding windows, and door to the communal open space minimises and mitigates acoustic impacts. For the level 03 communal open space, the area is again broken up into smaller spaces by landscape and seating. This area has been selected because it benefits from superior solar access compared to the ground floor communal open space – and can be expected to be likely preferred for that characteristic. The location is also further removed from adjoining buildings. Additionally, acoustic screening is provided around its edges. 35.3 Private balconies are also nominated as elements of concern. There are small balconies, around 2sqm, provided for each room above ground level. By design, they are not large enough to accommodate a table and chairs. They are designed to provide some additional amenity and fresh air to residents and, occasional use – but not for smoking. The design limits the likely use of them (and therefore the potential for noise generation), whether they are attached to single or double boarding rooms. 35.4 Management measures are proposed to limit the uses of the communal areas – by time, area and capacity, so as to exclude early morning and night time use (with the ground floor communal open space closed before 8.00am and after 8.00pm, the rooftop communal open space closed before 7.30am and after 10.00pm, and the communal living room closed before 7.00am and after 10.00pm) and to limit the potential for unmanaged noise generation. See the proposed Plan of Management dated 20 July 2022 (POM), section 4.7. 35.5 An on-site manager will be contactable 24 hours a day, 7 days a week. This measure is another design element that, in addition to likely self-enforcing behaviour, will minimise and mitigate noise generation (in conjunction with the House Rules)." 1. I include an extract from the ground floor drawing A-1203 Issue D (Ex D) below as an illustration of the design of the Proposed Development. Fig 2: Ground floor DWG A-1203 Issue D 1. The Respondent submits in general terms that "[w]ith the acceptance by Mr Gross that the level of noise emanating from the proposed development exceeding Background + 5dB(A), it cannot be said that the proposed boarding house is designed to minimise and mitigate any impacts on the acoustic privacy of neighbouring buildings and on the amenity or future residents" (par 20 Respondent Written Submissions). The Respondent further submits that "[t]he proposal has not sufficiently considered and incorporated design elements or embraced management practices to sufficiently ameliorate amenity impacts relating to noise (Baker Kavanagh Architects v Waverley Council [2004] NSWLEC 542 at [39])" (par 21 Respondent Written Submissions). 2. I now look at each of the areas relevant to the acoustic design concern being the communal open spaces, the communal living area and the private balconies. The Respondent does not expressly address the specific areas. I will look at each of these areas in the context of the objectives and the control provisions of the RDCP. 3. Firstly, in relation to the use of communal open spaces, I note the Applicant's submission quoted above (Applicant Written submissions at par 35.1 and 35.2). I refer to Fig 1: DWG A-1203 Issue D and note that the Proposed Development has reduced the outdoor seating area and that the seating area has an orientation towards the centre of the open space rather than outwards towards the adjoining neighbours. This is a design feature that addresses acoustic impacts. The rooftop includes a second communal open space. The new rooftop space has been designed to minimise its potential impacts on neighbours including its deep planter edges that will prevent overlooking of adjacent properties by managing sightlines from the communal space and help to manage acoustic impacts (Letter from Urbanac dated 22 April 2022, Ex B). I find that the communal open spaces are designed to minimise acoustic privacy impacts from the use of these areas. I will return to consider the acoustic impact of the use of communal open space when I address the POM separately below. 4. Secondly, in relation to the use of communal living area (common room) I refer to Fig 1: DWG A-1203 Issue D and note that the Proposed Development previously incorporated sliding doors which have been replaced with two windows and one swinging door. The evidence of experts is that the impacts from the use of the common room can be managed (JER par 36) and the experts agree that it is the use of the common outdoor areas which has the potential for the greatest acoustic impact (JER par 37). I find that the communal living area is designed to minimise acoustic privacy impacts from the use of these areas. 5. Thirdly and lastly, I consider the use of private balconies. The Supplementary Acoustic Report prepared by Mr Gross dated 29 June 2022, annexed to the JER (Ex 3) provides as follows: "All balconies face east or west so do not directly face the nearest neighbours to the north and south at 89 and 83 Anzac Avenue. There are large setbacks to the residential buildings to the west in Forster Street, where 15 rooms are located (reduced from 20)." (Supplementary Acoustic Report, p 5) 1. The acoustic experts consider that "due to the relatively small size of the private open spaces (balconies) that there would be limited activities/people with respect to this particular beyond the use of the residents of each room." (JER at par 35, Ex 3). I find that the private balconies are designed to minimise acoustic privacy impacts from the use of these areas. 2. In accordance with Control (d) of clause 3.2 in Part 3.5 of the RDCP, the Applicant relies on the following acoustic reports: 1. Acoustical Report prepared by Koikas Acoustics Pty Ltd dated 28 June 2021 and filed with the Class 1 Application on 21 October 2021 (Ex A); 2. Acoustic Statement prepared by RWDI Australia dated 22 April 2022 accompanying the amended plans in May 2022 (Ex B); and 3. Supplementary Acoustic Report prepared by Neil Gross dated 29 June 2022 attached to the JER (Supplementary Acoustic Report) (Ex 3). 1. It is agreed between the acoustic experts that "as the application has been amended, the recommendations and conclusions of the Koikas Acoustics report does not apply to the amended application." (JER par 16). Notwithstanding, pursuant to the RDCP, the number of rooms provided in the proposed boarding house leads to the building being classified under the Building Code of Australia (BCA) and therefore Section 7 of the Koikas Acoustics Report filed with the Class 1 Application (Ex A) should apply to the amended application (JER par 18). Section 7 of the Koikas Acoustics report provides recommendations which are expected to satisfy the relevant provisions of the BCA sound insulation requirements between tenancies, being internal measures for future residents of the boarding house. This is not ultimately relevant to the issues in dispute between the matters and the matter for determination before the Court. 2. Mr Gross is of the opinion that he considers "the design (given the other design requirements of the DCP) in conjunction with an appropriate Plan of Management and adoption of House Rules can minimise and mitigate any unacceptable acoustic impacts." (JER par 51). On the other hand, Mr Cooper's opinion is that without +5 dB(A), he cannot assess the acoustic impact and he did not provide an opinion. As I have found that the design elements of the proposed boarding house minimise acoustic privacy impacts from the use of the communal open spaces, communal living area, and private balconies, it is now appropriate to turn to the POM. Plan of Management – Contention 9 "Inadequate Plan of Management" 1. The terms of the POM and the House Rules are relevant to assess whether they satisfactorily address the use of the three identified areas and thereby minimise the acoustic impact on adjoining neighbours. I have done so and reach the conclusion that the acoustic impacts on adjoining neighbours are acceptable when taking into consideration the design of the Proposed Development together with the POM. I give my reasons below. 2. Particular (r) of contention 9 in the ASOFAC simply states that the POM does not identify specific acoustic requirements in terms of numbers of people or permitted noise levels in the communal spaces to satisfy the background +5dba limit. 3. The Applicant submits at par 37 of written submissions that the basis for the criterion needs to be scrutinised. I have already noted above at par [28] that the experts have agreed that the RDCP does not specify how acoustic impact is to be assessed, nor specifies any criterion to be met. 4. The experts agree that Section 5 of Part 3.5 of the RDCP requires the management arrangements of the proposed boarding house to be set out in a POM and the RDCP refers to "Schedule 2 – Template for Plan of Management" (JER par 33). 5. The Respondent submits at par 15 of Written submissions as follows: "it is submitted that Mr Gross's evidence regarding the provision or maintenance of an acceptable level of noise emission through compliance only with the Plan of Management: (a) Is contrary to long standing accepted measurement for considering an acceptable level of noise (Background + 5dB(A)); (b) Relies on a Plan of Management to provide an acceptable level of noise; (c) Compliance with the Plan of Management: (i) may well be difficult in practice, and (ii) is very difficult to monitor; and (d) Should be rejected". 1. It has already been noted that the acoustic experts disagree as to the requirement for compliance with a background +5 dB(A) noise criteria as nominated by Council in particular (f) of the contention (JER par 67). 2. Mr Gross gave evidence that the noise emitted from a boarding house is dependent on the behaviour of people and is managed in the POM by the implementation of two limitations, namely a limitation on hours of use and a limitation on the number of people. Mr Gross agrees in cross examination that essentially, the acoustic impact boils down to compliance with the POM. 3. The Applicant submits that "[m]any other activities will also exceed the criterion, but not be unexpected or unacceptable. It is why the planning controls do not seek to constrain, by criteria, such normal incidents of living, but leaving it to the extensive regulatory frameworks discussed in the NGLG." (Applicant Written Submissions par 73). I come back to regulation below in response to the Respondent's concern as to enforcement of the POM and proposed conditions of consent. 4. The POM dated 20 July 2022, relied on by the Applicant (Ex C) at section 4.7 on page 9 provides as follows: "The opening hours of the communal areas shall be as follows: Ground floor communal open area The ground floor communal open area will be available for use of the occupants, at all times, between 8:00am and 8:00pm seven days a week. The use of this area is to be limited to a maximum of 10 people at any one time. Rooftop communal open area The rooftop communal open area will be available for use of the occupants, at all times, between 7:30am and 10:30pm seven days a week. The use of this area is to be limited to a maximum of 10 people at any one time. Communal room The communal room will be available for use of occupants at all times between 7:00am and 10:pm and shall require the northern windows (other than the WC window) to be fixed windows. Windows to the common room are to be closed by 6:00pm (May to September) and otherwise 8:00pm and can be open from 7:00am. The common room is not to be accessible from the outdoor communal area until 8:00am. The use of this area is to be limited to a maximum of 10 people at any one time." 1. The Respondent submits at par 14 of written submissions that: "compliance with the Plan of Management appears excessively onerous to the Lodgers' use of the premises, given the limited times and limited patronage of a maximum of 10 persons using any of the 3 communal areas at any time. 10 persons comprise only 9% of the 110 Lodgers which the proposed development is able to accommodate." The Respondent notes Mr Gross's qualification in par 120 of the JER (Ex 3) to limit number of people in the common room and ground floor common area (outside) to groups of no more than 6. In response, the Applicant submits at par 84 as follows: "The applicant has embraced Mr Gross's assessment as guidance for the parameters for operation of the boarding house. These have been included in the updated POM dated 20 July 2022 – see, particularly, section 4.7. However, it should be noted that the proposed management measures are more restrictive than Mr Gross's assessment, as the capacity limits for each communal area are independent of each other communal area. Even if one or more of the other areas is not being used, the capacity and time limits will still apply. Thus the likely acoustic outcome will be no worse, and will likely be quieter than assessed for the majority of the time." (Applicant written submissions par 84) 1. In the context of Mr Cooper not having undertaken an assessment of the Proposed Development, I prefer and accept the evidence of Mr Gross and find that as the use of the rooms and common areas is limited to the times nominated in the POM and the behaviour of residents and guests is in line with the house rules, the Proposed Development would not result in unacceptable amenity impacts to neighbours (JER par 78). 2. The Respondent asked Mr Gross questions in cross examination as to the enforcement of compliance with the POM. This issue is relevant to the disputed conditions of consent numbered 163, 164 and 164 which I will come back to. The Respondent submits at par 9 of written submissions as follows: "A significant issue with Mr Gross's conclusion regarding acceptable noise is its dependence on the Plan of Management, and in particular how compliance with the Plan of Management might be enforced if there is a perceived unacceptable noise level. Any enforcement action through the planning legislation would concentrate on non-compliance with the plan of management, which would need to include the monitoring of the use of the 3 communal areas with respect to their times of use and patronage numbers. It is unclear how the use of those areas as required by s. 4.7 of the Plan might be able to be monitored effectively generally and for enforcement purposes. (Section 4.14 of the Plan is noted but does not appear to assist in relation to this issue.)" 1. I accept and recognise that it is appropriate for the Court to assume that people will comply with the conditions of consent but also acknowledge that breaches may occur. The Respondent's concern as to enforcement of the POM is addressed by the EPA policies, NPfI and NGLG as well as relevant regulatory provisions of the Protection of the Environment Operations Act 1997 (POEO Act). "Local government is an independent regulator for noise under the legislation, and has discretion in dealing with noise within its area of responsibility." (Mr Cooper, par 83, JER) 1. Part 8.6 of the POEO Act contains special provisions for the regulation of adverse noise impacts including noise control notices (Division 1 of Part 8.6, POEO Act) and noise abatement orders (Division 2 of Part 8.6, POEO Act). The Respondent acknowledges that a noise control notice can specify a level and that noise abatement orders refer to offensive noise (Written submissions at pars 9, 10, 11, 12, 13). 2. Part 1 of the NGLG describes in some detail the existing legal regulatory frameworks for noise management which include various powers to give directions, notices and orders, and to take proceedings of different kinds to control noise. These powers are available to all authorised officers, and are a relevant context in that there is an extensive regulation and enforcement regime with respect to noise, beyond planning assessment. The Applicant expressly draws the Court's attention to Table 1.3 in Part 1 of the NGLG and submits that this table describes the various mechanisms available to deal with different kinds of noise, organised generally by the use giving rise to the noise (Applicant Written Submissions par 41). 3. I find that the acoustic impact on adjoining neighbours is acceptable because in the absence of a numerical criterion for acoustic compliance, I have taken into account the design together with the POM and conclude that based on the deliberate design of the development, the proposed management measures in the POM and the assessment by Mr Gross, that there is compliance with the specific controls of Part 3.5, Section 3.2 of RDCP. This compliance achieves the objectives of Section 3.0 of the RDCP, namely, to facilitate an "acceptable level of … amenity.. for occupants of neighbouring developments". Conclusion 1. I conclude that development consent should be granted for the Proposed Development subject to conditions of consent because the objectives of Part 3.5 of the RDCP are achieved and the acoustic impact on adjoining neighbours is acceptable in accordance with my findings articulated in this judgment. 2. It is appropriate now to review the Draft/Proposed Conditions of Consent, in particular conditions 163 to 165 which are in dispute between the parties. Draft/Proposed Conditions of Consent with acoustic conditions in dispute. 1. The Respondent filed Draft/Proposed Conditions of Consent on 22 July 2022 (Ex 4). The Respondent seeks the inclusion of consent conditions 163, 164 and 165, which the Applicant disputes and seeks that they be deleted for the reason that they are "inappropriate and unreasonable". The disputed consent conditions read as follows: "163. Acoustic Operation Verification Report - Within three (3) months from the issue of an Occupation Certificate, an acoustical assessment is to be carried out by an appropriately qualified acoustical engineer person, generally in accordance with the EPA's Noise Policy for Industry and submitted to Council for consideration. This report should include but not be limited to, verifying the acceptable noise levels identified in Condition 164. Where the premises is not operating at above 80% capacity within 3 months from OC, Council should be advised in writing and an extension of time be negotiated with respect to the Acoustic compliance testing. The acoustic report shall identify the required corrections to assess operations at full capacity in addition to the operations tested. Where such testing reveals non-compliance with Condition 164 (with corrections for full capacity) the acoustic report shall identify additional noise or management controls that are required. Such controls are to be implemented within 14 days and then subject to further acoustic testing and reporting for submission to Council. Reason: to ensure acoustic measures are effective in controlling noise impacts. 164. Noise Limits – All noise generated from the premises (including people noise) must not exceed the EPA's intrusiveness noise limit of background + 5db(A) when assessed at any residential receiver as an Leq, 15 minute level. (Reason:). To ensure compliance with Part 3.5 of the Ryde DCP). 165. Council may require acoustical consultant's report. After receipt of a justified complaint to the satisfaction of Council, acoustic compliance testing is to be completed by the applicant. The acoustic assessment is to be carried out by an appropriately qualified person, being a member of either the Australian Acoustical Society (AAS) or Association of Australasian Acoustic Consultants (AAAC), and an acoustic compliance report submitted to Council within 14 days of testing. 1. The acoustic testing shall be undertaken on an evening/night where the building is at 80% capacity or as directed by Council and as far as practical without the knowledge of the proponent. 2. Following the acoustic testing, verification is to be provided from the on site manger verifying the number of lodgers on site at the time of testing and if the boarding house is not at 80% capacity, or as directed by Council, this requirement is not satisfied, the acoustic testing shall be repeated. 3. Noise monitoring shall be undertaken at the nearest sensitive receiver and any other location to determine compliance with the compliance with the relevant criterion referred to in condition No. 164. Should the noise levels exceed the relevant criterion during compliance testing, additional noise mitigation or management measures may be required to be implemented. Details are to be submitted to Council for approval of any mitigation or management measures. The proponent is then to implement these measures within 14 days of Council confirming its acceptance of the additional measures. (Reason: To demonstrate compliance with relevant legislation)." 1. The Respondent submits at pars 12-13 of written submissions that: "12 … the issue or making of noise control notices, noise abatement orders and noise abatement directions all rely in practice on a measured level of noise. 13 In contrast, noise monitoring (properly carried out) to determine the level of noise discharged from the premises would be (a) measured, (b) objective and (c) clear." 1. Then at par 27 of written submissions, the Respondent submits that "if the Court were minded to uphold the appeal, draft conditions 163, 164 and 165 are highly appropriate in order (a) to confirm an acceptable measurable level of noise emission, and (b) to monitor the emission of noise to ensure that its level is acceptable." 2. On the other hand, the Applicant submits as follows: "There is no basis to impose the background + 5dB(A) criterion – condition 164. Equally, it is unreasonable to require testing against that criterion – condition 163. The attempt to introduce a freestanding, and unqualified requirement to carry out testing – condition 165 – is also unreasonable and unnecessary. Council has broad powers to investigate, test and control noise through its various powers under the EPA Act, the Local Government Act 1993 and the Protection of the Environment Operations Act 1997." 1. Having considered all the evidence of the experts and the careful submissions of the parties, I conclude that a regulatory authority, such as the Respondent, has ample guidance and regulatory provisions to investigate and enforce any breaches of the POM regarding adverse noise impacts and I find that there is no express planning purpose for the consent conditions 163, 164 and 165 as proposed by the Respondent. These consent conditions 163, 164 and 165 should be deleted from the conditions of consent. 2. Finally, having reached the conclusion that development consent should be granted, I have formed the opinion that the jurisdictional prerequisites are satisfied and I give my reasons below. Satisfaction of the jurisdictional prerequisites 1. The upholding of the appeal involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 2. 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 in their written submissions. 3. The parties agree that the relevant jurisdictional pre-requisites are satisfied, and I conclude that the Court can be so satisfied and I adopt the reasons given by the parties which I now summarise. 4. Landowner's consent for the Proposed Development was provided to the Respondent and the Court. 5. Development for the purpose of a boarding house is permissible in the R4 High Density Residential zone under the RLEP. 6. The proposal involves earthworks to excavate the basement levels. Filed with the Class 1 Application (Ex A) is a report entitled "Geotechnical Investigation Report by Geo‑Environmental Engineering dated 18 June 2021. The requirements of cl 6.2(3) of RLEP 2014 have been considered by Council with the result that no contention is raised in the proceedings. Accordingly, the Court can be satisfied these matters have been considered (and are otherwise the subject of conditions). 7. Other than for height, none of the non-refusal standards in clause 29(2) of the ARH SEPP are exceeded. The development standards in clause 30(1) of the ARH SEPP are met. 8. The floor space ratio development standard of 1:1 under clause 4.4 of RLEP 2014 is exceeded (at 1.32:1) but cannot be refused on this ground as it is less than 1.5:1 as provided by clause 29(1)(c) of the ARH SEPP. 9. Contention 5 in the ASOFAC dealt with flooding, and noted that the Site is located within the Low Flood Risk Precinct and clause 5.21 of the RLEP applies. Ex A includes a Flood Impact Assessment Report by Siteplus dated August 2021. The issue of flooding is no longer in contention. 10. Clause 6.1 of the RLEP requires development consent for the carrying out of works on land which is shown of the Acid Sulfate Soils Map. The Site of the Proposed Development is not identified on that map (Sheet ASS_003) as land to which cl 6.1 applies. 11. In relation to Stormwater Management, cl 6.4 of the RLEP precludes the grant of development consent unless the consent authority is satisfied about various matters relating to stormwater. I have formed the requisite level of satisfied based on the following: 1. Annexure H of Ex B provides the Stormwater Plans, which provide relevantly for a 32.91m3 on‑site detention tank, and for stormwater to leave the site at the rear south‑western corner of the Site onto downstream properties (44 & 46 Forster Street and 21 Wattle Street) so as to discharge to Wattle Street. 2. Deferred commencement condition "A" requires an easement to drain water to be obtained for that purpose. 1. The State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55) was repealed on 1 March 2022. Its operative provisions were transferred to State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience & Hazards SEPP). Section 30A(2) of the Interpretation Act 1987 provides: (2) The transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred. 1. Clause 7 of SEPP 55 has been transferred to s 4.6 of the Resilience & Hazards SEPP. Section 4.6 is expressed in identical terms to cl 7 of SEPP 55. Section 4.6(1) precludes the granting of development consent unless the consent authority has considered relevantly whether the Land is contaminated. Section 4.6(2) requires the consideration of a report specifying the findings of a preliminary investigation of the land concerned, if (a) the proposed development would involve a change of use and (b) the land concerned is included in the land set out in s 4.6(4). 2. In the present case, the use of the land continues as residential purposes. Accordingly, consideration of a report specifying the findings of a preliminary investigation of the Land is not required. 3. Section 4.2.2 at pages 20-21 of the Statement of Environmental Effects (at Tab 1d of the Class 1 Application documents (Ex A)) deals with the issue of potential contamination, and notes that "[t]he site has been occupied by the existing dwelling and used for residential purposes for many years and there is no information available that suggests that the site may be potentially contaminated". 4. An amended BASIX Certificate has been provided and is Tab D in Ex C pursuant to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 5. The State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) was repealed on 1 March 2022. Its operative provisions were transferred to Chapter 2 of the State Environmental Planning Policy (Biodiversity & Conservation) 2021 (Biodiversity & Conservation SEPP). 6. In the event that it is considered that the application proposes the removal of vegetation to which Chapter 2 of the Biodiversity & Conservation SEPP applies: 1. Section 2.7(1) of the Biodiversity & Conservation SEPP provides: (1) A permit or approval to clear vegetation is not required under this Chapter if it is clearing of a kind that is authorised under the Local Land Services Act 2013, section 60O or Part 5B. 1. Section 60O of the Local Land Services Act 2013 authorises clearing of vegetation by a development consent under Part 4 of the EPA Act. 2. On that basis, in the present case the effect of the Vegetation SEPP and now Chapter 2 of the Biodiversity & Conservation SEPP is overcome due to the need for development consent under Part 4 of the EPA Act. Is the contravention of the height development standard justified by the cl 4.6 written request? 1. The Proposed Development is subject to a development standard in relation to height. The Land is affected by a height development standard of 11.5m pursuant to cl 4.3 of the RLEP. 2. The roof element, being the two lift overruns of the Proposed Development, will exceed the 11.5m height development standard. To justify the departure of compliance from the development standard, the Applicant relies on a revised written request pursuant to cl 4.6 of the RLEP dated 21 April 2022, prepared by Nexus Environmental Planning Pty Ltd (Written Request) (Tab E in Ex B). 3. The Respondent Council does not raise any contention in relation to the contravention of the height of building development standard in cl 4.3. 4. Clause 4.6 of the RLEP requires the Court, as the consent authority, to form a positive opinion firstly that the written request adequately addressed that compliance with the development standard is unreasonable or unnecessary and that there are sufficient environmental planning grounds and secondly, that it is in the public interest because the Proposed Development is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 5. I am satisfied that it is unreasonable or unnecessary to comply with the development standard for the reasons set out at page 7 of the Written Request in relation to achieving the objectives of the height of buildings development standard. 6. The Written request quotes Preston CJ in the decision of Wehbe v Pittwater Council [2007] NSWLEC 827 at [42] "… The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard…" And at [43] "43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served)." 1. The objectives of cl 4.3 of the RLEP at page 6 and these are as follows: "4.3 Height of buildings (1) The objectives of this clause are as follows— (a) to ensure that street frontages of development are in proportion with and in keeping with the character of nearby development, (b) to minimise overshadowing and to ensure that development is generally compatible with or improves the appearance of the area, (c) to encourage a consolidation pattern and sustainable integrated land use and transport development around key public transport infrastructure, (d) to minimise the impact of development on the amenity of surrounding properties, (e) to emphasise road frontages along road corridors." 1. The non-compliance with the height of buildings development standard is as depicted in the Height Blanket and is confined to a 1030mm section of the rear lift overrun, a 700mm breach at the front lift overrun and a 50mm breach at the front corner of the front building. I accept the conclusion in the Written Request as follows: "The proposal is consistent with the scale of development envisaged for the Site under the current planning controls in LEP 2014 and those of State Environmental Planning Policy (Affordable Rental Housing) 2009 which envisage a bonus Floor Space Ratio for the Site which, in this case, results in a minor non-compliance with the development standard. The proposed development provides for a significant increase in accordable housing and a better planning outcome than would otherwise be the case if one level of each building was removed. … Maintaining and enforcing the development standard in this case would unreasonably prevent the orderly and economic development of the Site and would unnecessarily encumber the various community benefits this development brings which include: A development which is compatible with the desired future character of the locality. A development of high quality design which results in improvements to the streetscape of Anzac Avenue. The ability to provide affordable residential development in the form of a new generation boarding house." (Written Request, page 8) 1. There are sufficient environmental planning grounds as set out at page 8 of the Written Request and I am satisfied that there is no adverse impact as follows: "The section of the proposed development which breaches the height of buildings development standard results from the bonus floor space provided for in State Environmental Planning Policy (Affordable Rental Housing) 2009. it is a better planning outcome to provide for affordable housing with a minor breach of the development standard than to reduce the number of boarding rooms such that the lift overruns meet the 11.5m development standard." (page 9, Written Request) 1. I am satisfied that the Proposed Development is in the public interest because in addition to being consistent with the objectives of the development standard, the Written Request explains how the Proposed Development is consistent with the objectives of the R4 High Density Residential zone which are as follows: "Zone R4 High Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents." 1. The Written Request explains that the Proposed Development would be consistent with these objectives for the following reasons (page 6): "provide for the housing needs of the community including the affordable rental housing needs of the community, Assist in the provision of a variety of housing with access to services and facilities, Enhance the amenity of the neighbourhood, and Ensure that a high level of residential amenity is achieved and maintained." 1. I adopt the reasons given in the Written Request and conclude that the Court is satisfied that the applicant's Written Request seeking to justify the contravention of the development standard in cl 4.3 of the RLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the RLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. 2. As required by the RDCP in regard to neighbourhood notification, Tabs 4 and 5 of the Respondent's Bundle of Documents (Ex 2) set out the 105 submissions lodged with the respondent in respect of the DA original application, and the 16 submissions lodged with the respondent in relation to the amended application arising from the notice of motion in May 2022. Orders: 1. The Court orders: 1. The written request pursuant to clause 4.6 of the Ryde Local Environmental Plan 2014 to justify the contravention of the height of building development standard is upheld. 2. The appeal is upheld. 3. Development application no LDA 2021/0285 seeking development consent for the demolition of existing structures and the construction of a boarding house at 85 and 87 Anzac Avenue, West Ryde, legally described as Lots 27 and 28 in DP 10102, is determined by granting consent to the application subject to the conditions in Annexure A. 4. All Exhibits are retained. ………………………. E Espinosa Commissioner of the Court 298697.21 Espinosa C Annexure A (568198, 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 November 2022