Urban Link Pty Ltd v City of Ryde Council [2014] NSWLEC 1154

Land and Environment Court New South Wales

Medium Neutral Citation: Urban Link Pty Ltd v City of Ryde Council [2014] NSWLEC 1154 Hearing dates: 31 July 2014 Decision date: 01 August 2014 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. By consent, the appeal is upheld. 2. Development Application No. LDA2012/0124 for the demolition of two existing dwellings and the construction of nine dwellings within a multi-dwelling housing development, pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 and strata title subdivision is approved, subject to the conditions of consent in Annexure A. 3. The exhibits, other than exhibits 1, 2, 5, A, B, C and D are returned. Catchwords: DEVELOPMENT APPLICATION: consent orders; variation to the maximum height development standard. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Urban Link Pty Ltd (Applicant) City of Ryde Council (Respondent) Representation: Ms P. Murray Solicitor (Applicant) Mr T. Neal Solicitor (Respondent) DibbsBarker Lawyers (Applicant) Maddocks Lawyers (Respondent) File Number(s): 10099 of 2014

Judgment 1COMMISSIONER: This appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 comes before the Court for consent orders in relation to Development Application No. LDA2012/0124 for the demolition of two existing dwellings and the construction of nine dwellings within a multi-dwelling housing development (the proposal) at 58-60 Falconer Street, West Ryde (the site). 2The appeal was subject to mandatory conciliation on 28 April, 2014, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 4 June, 2014, pursuant to s34(4) of the LEC Act. 3Prior to the hearing, the parties agreed to enter into consent orders, based on amendments made to the original proposal. The principle changes are: * a total of nine dwellings instead of twelve and all dwellings have two bedrooms, except for the street front dwelling which has three bedrooms; * the street front setback is increased to be generally consistent with adjoining development; * the street front dwelling has private open space within the front setback and a front door facing the street; * the carports are deleted and replaced with garages; * the internal layout of apartments is amended so that the kitchens are facing the driveway and not bedrooms; * the ceiling heights on the first floor have been amended with the addition of dormer windows; * the driveway width is varied and the landscaping around the driveway is increased; * there are no windows, other than highlight windows, overlooking the common area; * the layouts and finishes of the accessible apartments are amended; and * the visitor parking space is located at the rear of the proposal. 4In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides: Application for final orders by consent of parties 35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval. 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 5Resident objectors were invited by letter, dated 7 July 2014 (exhibit 5), to attend the hearing and give evidence, however, the Council submits that no objectors responded to the invitation to attend the hearing. The Council further submits that the objections raised by the resident objectors regarding the original proposal have been addressed by the amendments made to the proposal following the conciliation conference.