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. Maximum Height Development Standard 6The proposal exceeds the maximum height development standard of 6.5m for dwellings which do not have a frontage to the street (cl 4.3(2A)(a) of Ryde Local Environment Plan 2010 [LEP 2010]), which represents a maximum variation of 0.42m from the maximum height development standard. The proposal exceeds the maximum height development standard of 5m for dwellings which do not have a frontage to the street (cl 4.3(2C) of the draft Ryde Local Environment Plan 2011 [draft LEP]), which represents a maximum variation of 1.92m from the maximum height development standard in the draft LEP. The Council submits that the draft LEP is both imminent and certain, as it has been referred to the NSW Department of Planning and Infrastructure with a request that the Minister make the Plan and consequently, pursuant to s 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979, the provisions of the draft LEP must be taken into consideration. 7The site is zoned R2 Low Density Residential pursuant to both the LEP 2010 and the draft LEP. 8In order for development consent to be granted for a development that contravenes a development standard in the LEP 2010, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2010); that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2010); and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2010). 9The relevant objectives of the R2 Low Density Residential Zone of LEP 2010 are: · To provide for the housing needs of the community within a low density residential environment. · To ensure that the general low density nature of the zone is retained and that development for the purposes of dual occupancy (attached) and multi dwelling housing (attached) do not significantly alter the character of a location or neighbourhood. · To ensure that new development complements or enhances the local streetscape. · To maintain on sites with varying topography the two storey pitched roof form character of dwelling houses and dual occupancy (attached) developments. 10The relevant objectives of the height of buildings development standard, at cl 4.3(1) of LEP 2010 are as follows: (a) to maintain desired character and proportions of a street within areas, (b) to minimise overshadowing and ensure a desired level of solar access to all properties, (c) to enable the built form in denser areas to create spatial systems that relate to human scale and topography, 11The relevant objectives of the R2 Low Density Residential Zone of the draft LEP are: · To provide for the housing needs of the community within a low density residential environment, · To provide for a variety of housing types. 12The relevant objectives of the height of the buildings development standard, at cl 4.3(1) of the draft LEP are as follows: (a) to maintain desired character and proportions of a street within areas, (b) to minimise overshadowing and ensure a desired level of solar access to all properties, (c) to encourage a built form that relates to human scale and topography, 13The applicant's written request (exhibit D) justifies the contravention of the maximum height development standard in LEP 2010 on the following grounds: * the generally low density nature of the zone is retained by the design and orientation of the proposal as the proposal does not significantly alter the character of the neighbourhood and complements the local streetscape; * the proposal is consistent with the style of other low density dwellings as it has a two storey built form, a pitched roof and dwelling entry facing the street with a pedestrian path to the front entry; * the area is characterised by an eclectic mix of architectural styles and the proposal contributes to this mix of styles; * the proposal does not result in any unreasonable amenity impacts on neighbours; * the extent of the variation is minor and the purpose of the variation is to provide adequate amenity to the bedrooms within the roof space of the proposal; and * the proposal satisfies the objectives of the R2 Low Density Residential Zone. 14I am satisfied that the written request by the to contravene the maximum height development standard in the LEP 2010 adequately addresses the matters required to be demonstrated and that the proposal is consistent with the zone objectives and the objectives of the maximum height development standard in both the LEP 2010 and the draft LEP, to maintain the desired character and proportions of the street, to minimise overshadowing and ensure a desired level of solar access to all properties and to encourage a built form that relates to human scale and topography. Conclusion 15I accept the agreement of the parties that the proposal complies with the relevant provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009. 16In considering the amended plans and documents and agreed conditions of consent (Annexure A), I am satisfied that it is 'lawful and appropriate' to grant the consent, having regard to the whole of the circumstances. Orders 17The orders of the Court are: (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. ____________ Susan O'Neill Commissioner of the Court Annexure A ********** 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: 08 August 2014