Land and Environment Court New South Wales Medium Neutral Citation: Concorde Enterprises Pty Limited v Council of the City of Ryde [2016] NSWLEC 1308 Hearing dates: 22 July 2016 Date of orders: 26 July 2016 Decision date: 26 July 2016 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. By consent, the appeal is upheld. 2. Development Application No. LDA/2014/0541 for construction of a six storey mixed use boarding house development containing a boarding house and office/commercial use with associated basement parking at 17-21 Ryedale Road, West Ryde is approved subject to the conditions in Annexure 'A'. 3. The exhibits, other than exhibits 1, 4 and D, are returned. Catchwords: DEVELOPMENT APPLICATION: consent orders; objectors; boarding house. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Concorde Enterprises Pty Limited (Applicant) Council of the City of Ryde (Respondent) Representation: Counsel: Mr John Cole solicitor (Applicant) Mr Paul Kapetas solicitor (Respondent) Solicitors: HWL Ebsworth Lawyers (Applicant) Council of the City of Ryde (Respondent) File Number(s): 2016/158927 Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. LDA/2014/0541 for construction of a six storey mixed use development containing a boarding house and office/commercial use with associated basement parking (the proposal) at 17-21 Ryedale Road, West Ryde (the site) by City of Ryde Council (the Council). 2. The appeal was subject to mandatory conciliation on 14 December 2015, in accordance with the provisions of s 34 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 7 April 2016, pursuant to s 34(4) of the LEC Act. 3. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 5 May 2016 for the applicant to rely on the amended proposal. Prior to the hearing, the parties agreed to enter into consent orders on the basis of the amended proposal. 4. The Court's Practice Note – Class 1 Development Appeals (paragraphs 47-49) provides: Applications for final orders by consent of parties 47. If the parties settle the dispute and its resolution does require the Court to make orders, it will be necessary for the Court to determine the residential development appeal application rather than filing terms of agreement with the Court registry. The parties are to exercise the liberty to restore the proceedings before the Court and request that the application for final orders by consent be listed for determination by the Court. 48. The parties are to file the proposed consent orders signed by all parties before the date fixed for hearing the application for final orders by consent. 49. At the hearing, 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. 1. Objectors to the proposal were invited by letter, dated 11 July 2016 (exhibit 2, f 482), to attend the hearing and give evidence and were provided with a copy of the proposed conditions of consent. Three objectors provided evidence on-site at the commencement of the hearing and their objections to the proposal can be summarised as: * The proposal will further exacerbate the lack of parking around the railway station; * The proposal does not provide enough parking on-site; * The occupant of the adjoining property will not be able to turn his car into the rear of his property from the laneway, as the proposal extends to the rear boundary and parked cars on the opposite side of the laneway will mean there is insufficient room to turn a car. 1. The Council 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 or are issues that relate to the right of way over privately owned properties at the rear of the site and the proposal does not include any works to the right of way. Issues 1. The Council's contentions in the matter can be summarised as: * The proposal exceeds the floor space ratio (FSR) development standard for the site and the additional FSR permitted by the State Environmental Planning Policy (Affordable Rental Housing) (SEPP ARH). The bulk and scale of the proposal is inappropriate and will result in a disproportionate built form and an inconsistent scale that will impact adversely on the existing and desired future streetscape of the locality. * The site is located within the Ryedale Road Heritage Conservation Area (HCA). The proposal will have an adverse impact on the heritage significance of the HCA. * The proposal is incompatible with the character of the area. * The layout of the boarding house does not comply with the relevant provisions of the Ryde Development Control Plan 2014 (DCP 2014). * The amenity provided by the proposal is inadequate and the proposal will overshadow neighbouring properties. * Consent has not been provided by the owner/s of the right of way to the rear of the site and it is necessary for the applicant to demonstrate that they have legal access to use the right of way. 1. The Council submits that the amended proposal adequately addresses each of the contentions raised. The site 1. The site is located on the eastern side of Ryedale Road, opposite West Ryde Railway Station. The site has and area of 605.5sqm, with a frontage to Ryedale Road and a Right of Way at the rear of the site. The Right of Way forms a private laneway known as Ryedale Lane that extends between Ryedale Road to the south and Anzac Lane to the north. The Right of Way provides existing vehicular access to the rear of the site and adjacent properties. 2. The site contains three commercial/residential buildings currently used as a dental clinic, a restaurant and a commercial office. Planning framework 1. The site is zoned B4 Mixed Use pursuant to the Ryde Local Environment Plan 2014 (LEP 2014) and the proposal is permissible with consent. The Height of Buildings development standard in LEP 2014 is 23m (Height of Buildings Map HOB_003 LEP 2014) and the FSR development standard is 1.5:1 (FSR Map FSR_003 LEP 2014). The site is within a heritage conservation area (HCA) (Heritage Map HER_002 LEP 2014). 2. The proposal is made pursuant to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Division 3 of SEPP(ARH) applies to the site at sub-cll 26(g) and 27(1). The proposal is eligible for an additional 0.5:1 FSR at sub-cl 29(1)(c)(i). If at least 0.2 parking spaces are provided for each boarding room, the proposal cannot be refused on this ground at sub-cl 29(2)(e)(i). 3. City of Ryde Development Control Plan 2014 (DCP 2014) includes, at Part 3.5, objectives and controls for boarding houses. At 2.39(c), boarding house development located within a HCA must be designed sympathetically tot eh significance of the area and the design of the boarding house is to take into consideration any desired future character objectives identified under Part 4 of DCP 2014. 4. The Council's bundle (exhibit 2) includes a letter from 'Transport Sydney Trains' (folio 523) granting concurrence to the proposal subject to the imposition of a deferred condition of consent, which has been included in the conditions of consent (Annexure A, condition (1)). The proposal 1. The amended proposal (exhibit D) consists of 40 boarding rooms, basement parking and commercial tenancy, as follows: * Basement: access from the rear lane, including 8 parking space of which 2 are accessible; 2 commercial parking spaces, 8 motorcycle parking spaces, 8 bicycle parking spaces; storage areas, bin storage areas and plant room. The basement level is setback from the laneway boundary. * Ground Floor: office commercial area and lobby accessed from Ryedale Road; 4 boarding rooms and landscaped area; * First Floor: winter garden communal open space, managers room and private open space, 4 boarding rooms. * Second – Fifth Floor: 7 boarding rooms. * Sixth Floor: 4 boarding rooms and communal open area. Expert evidence 1. Joint expert reports were prepared and tendered. A joint expert report addressing planning and urban design issues (exhibit C) was prepared by Mr Stuart Harding on behalf of the applicant and Mr Sanju Reddy and Ms Gabrielle Morrish on behalf of the Council. A joint expert report addressing heritage issues (exhibit A) was prepared by Mr Greg Patch on behalf of the applicant and Mrs Kate Wine on behalf of the Council. A joint expert report on traffic issues (exhibit B) was prepared by Mr Ross Nettle on behalf of the applicant and Mr Daniel Pearse on behalf of the Council. FSR 1. The Council submits that sub-cl 29(4) of SEPP(ARH) allows the Court to determine the proposal with an exceedance of the FSR development standard in LEP 2014 and the additional FSR in SEPP(ARH). However, for abundant caution, the applicant tendered a cl 4.6 of LEP 2014 written request justifying a variation of the FSR development standard (exhibit F, Appendix A) as the proposal has a FSR of 2.68:1. 2. The applicant justifies the exceedance of the FSR development standard and additional FSR in SEPP(ARH) on the basis that notwithstanding the numerical exceedance, the proposal satisfies the FSR development standard objectives of controlling the bulk of development, allowing appropriate levels of development for specific areas, consolidating and encouraging sustainable development around key public transport infrastructure, providing a mixture of compatible land uses and integrating commercial, retail and residential development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. 3. The planning and urban design experts agreed that the amended proposal is acceptable in terms of its bulk and scale as it results in a single tower with increased setbacks to the front and rear of the site and the increased setbacks have reduced the visual dominance of the proposal and allowed the silhouette and scale of the existing two storey facades to be appreciated and dominate the streetscape. They agreed that the proposal complies with the height development standard while achieving the significant setbacks and does not create unacceptable visual or amenity impacts. I accept the agreement of the experts and I am satisfied that the exceedance of the FSR development standard and additional FSR permitted by SEPP(ARH) is justified. HCA and character 1. The heritage experts agreed that the amended proposal has an acceptable relationship to the retained two storey built form of Ryedale Road; that the proposed materials are appropriate; that the setback of the tower from the front façade will provide a clear delineation between the new building and the original row of shopfronts and that the amended proposal retains and refurbishes the original shopfront facades which will retain their contribution to the heritage significance of the HCA. I accept the agreement of the heritage experts. Layout of the boarding house and amenity 1. The planning and urban design experts agreed that the amended proposal will provide satisfactory amenity for future residents and acceptable solar access to adjoining development and that the layout of the proposal complies with the relevant objectives and controls of Part 3.5 of DCP 2014. I accept the agreement of the planning and urban design experts. Right of Way laneway 1. The Council submits that the proposal does not include any works to the rear laneway and that owners consent has been obtained for access to the site from the laneway. The traffic experts agreed that the basement level is setback from the rear site boundary 2m and this provides an adequate access aisle of 6.096m when there are vehicles parked on the opposite side of the laneway for vehicular access to the site and adjacent properties. They agreed that the amended basement garage plans have provided a means of vehicle access that does not require the restriction or control of parking on the opposite side of the laneway. I accept their agreement. Conclusion 1. In considering the issues raised by the objectors, the amended plans and documents and agreed conditions of consent (Annexure A), I am satisfied that it is lawful and appropriate to grant the proposal development consent. Orders 1. The orders of the Court are: 1. By consent, the appeal is upheld. 2. Development Application No. LDA/2014/0541 for construction of a six storey mixed use boarding house development containing a boarding house and office/commercial use with associated basement parking at 17-21 Ryedale Road, West Ryde is approved subject to the conditions in Annexure 'A'. 3. The exhibits, other than exhibits 1, 4 and D, are returned. ____________ Susan O'Neill Commissioner of the Court 158927.16 - Annexure A (158 KB, 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: 26 July 2016