Earlcore Pty Limited v Ryde City Council [2006] NSWLEC 173

Land and Environment Court of New South Wales

CITATION : Earlcore Pty Limited v Ryde City Council [2006] NSWLEC 173

APPLICANT: PARTIES : Earlcore Pty Limited RESPONDENT: Ryde City Council

FILE NUMBER(S) : 11529 of 2005

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Site amalgamation Rear setback

Ryde Planning Scheme Ordinance 1979, (RPSO) LEGISLATION CITED: Draft Ryde Local Environmental Plan No 143, (DLEP143) Draft Ryde Development Control Plan No 56, (DDCP56) Environmental Planning and Assessment Act 1979, ss79C and 97

CASES CITED: Melissa Crech v Auburn Council [2004] NSWLEC 40 ; Winten Property Group Limited -v- North Sydney Council, NSWLEC 46

DATES OF HEARING: 06/04/2006

DATE OF JUDGMENT: 04/11/2006

APPLICANT: Mr C C Gough, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Storey & Gough RESPONDENT: Mr R K Graham, solicitor SOLICITORS: Abbott Tout

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

11 April 2006

11529 of 2005 - Earlcore Pty Limited v Ryde City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Ryde City Council (the council) to refuse a development application to demolish the existing building, erect a residential flat building and to strata subdivide, at Lot 41, DP 9692, being No 1 William Street, Ryde. 2 I visited the land in company with the parties on the morning of the hearing and heard from local owners. 3 I have concluded that the application should succeed and approval is granted subject to conditions. The land 4 The land is situated on the western side of William Street, Ryde, and has a frontage to William Street of about 14.48m and a depth of about 43.51m. The land slopes down away from William St towards the rear (western boundary). 5 The land has an area of about 669.4m2, based on the 1919 plan of subdivision in DP 9692. Erected on the land is a brick dwelling, two outbuildings and there are some significant trees on the land. 6 Nearby is Top Ryde town centre, and the land in the immediate vicinity is zoned residential. To the north at Nos 46-48 Blaxland Road is a doctor's surgery. This land is subject of development consent for a four-storey medical centre with eight x two-bedroom units above that was issued on 2 October 2001 and will lapse later this year. To the south at No 3 William Street, and across William Street at Nos 2-6 are three-storey residential flat buildings. 7 William St is a local road linking Blaxland Road in the north to Victoria Road in the south. Relevant planning controls Ryde Planning Scheme Ordinance 1979, (RPSO) 8 Under the provisions of the RPSO the land is zoned Residential 2(c5) and under cl 22 the proposal is permissible with consent. Nos 46-48 Blaxland Road is similarly zoned. 9 Under cl 46(4) of the RPSO: (4) A residential flat building (other than a residential flat building Class A, villa homes or duplex buildings) shall not be erected on an allotment of land within the zone No 2(c5) …unless: (a) … (b) Where the allotment has frontage to any other road: (i) it has an area of not less than 840m2; and (ii) it is not less than 24 for metres wide at the front alignment of the building. Residential Flat Building Code, (RFBCode) 10 Under cl 4.2.2 of the RFBCode the minimum site requirements for residential flat buildings reiterate those contained in cl 46(4) of the RPSO. 11 Under cl 4.4 of the RFBCode there is a general statement: In exceptional circumstances council may exercise its discretion to vary the minimum site requirements under State Environmental Planning Policy No 1-development standards. In this regard it will be necessary for the applicant to submit with the development application a written objection that compliance with the particular development standard is unreasonable or unnecessary in the circumstances of the case, specifying the grounds of that objection. Every effort should be made to consolidate properties which: 1. do not comply with these minimum site requirements, with adjoining undeveloped properties, zoned for residential flat development, to form sites which comply with the minimum requirements; or 2. with properties which would be isolated by a development proposal, in a situation where the isolated property would not comply with those requirements. Draft Ryde Local Environmental Plan No 143, (DLEP143) 12 The DLEP143 has been certified under s 65 of the Environmental Planning and Assessment Act 1979, and has been publicly exhibited. Mr Grech determined that the gazettal of this instrument was "…likely and imminent", [Note: Exhibit D, p 9]. The DLEP143 applies to the land. 13 The aims of this DLEP143 are: (a) to introduce new zoning, planning and design provisions for the Ryde Town Centre, and (b) to rezone land adjoining Ryde Park to Open Space (parks and recreation), and (c) to encourage a mix of land uses within the Ryde Town Centre, and (d) to encourage high quality design in all new development and within the public domain in the Ryde Town Centre, and (e) to replace definitions of net useable floor area and storey in the Ryde Planning Scheme Ordinance.