Land and Environment Court New South Wales Medium Neutral Citation: Tohme v Council of the City of Ryde [2020] NSWLEC 1154 Hearing dates: Conciliation conference on 6 March 2020 Date of orders: 01 April 2020 Decision date: 01 April 2020 Jurisdiction: Class 1 Before: Clay AC Decision: The Court orders that: (1) Leave is granted to amend the application for development consent by relying on the amended plans set out in Annexure A. (2) The appeal is upheld. (3) Development Application Number LDA2019/0091, for construction of a multi dwelling house development containing six (6) two storey dwellings pursuant to State environmental Planning Policy (Affordable Rental Housing)) 2009, at 58-62 Falconer Street, West Ryde NSW is approved subject to the conditions set out in Annexure B. Catchwords: DEVELOPMENT APPLICATION – multi-unit dwellings – conciliation conference – agreement – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Ryde Local Environmental Plan 2014 State Environmental Planning Policy (Affordable Rental Housing) 2009 Category: Principal judgment Parties: Charbel Tohme (Applicant) Council of the City of Ryde (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) P Kapetas (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Council of the City of Ryde (Respondent) File Number(s): 2019/215115 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Respondent of a development application (LDA 2019/0091) for the construction of a multi dwelling house development containing six (6) two storey dwellings pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 at 58-62 Falconer Street, West Ryde, NSW (the site). 2. On 6 March 2020, I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). 3. At the conciliation conference, the parties reached agreement in principle and on 13 March 2020 filed an agreement pursuant to s 34 of the LEC Act recording their agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to the Applicant to amend the development application, uphold the appeal and grant development consent to the development application subject to conditions. 4. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. 5. The parties' agreement involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties have stated and I agree as to the following jurisdictional prerequisites relevant in this case that must be satisfied before this function can be exercised and the reasons for their satisfaction: 1. State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP) 1. Clause 10(1) – the development proposed is permitted with consent under Ryde Local Environmental Plan 2014 2. Clause 10(2) – the development is within an accessible area 3. Clause 13 – 20% of the development is to be used for the purposes of affordable rental housing. 1. Ryde Local Environmental Plan 2014 (RLEP 2014) 1. Pursuant to cl 4.6 that the variation request, prepared by Minto Planning Services, justifies the variation to cl 4.3A(2) for maximum height. 2. That all other jurisdictional tests under the RLEP 2014 were satisfied (of which none had been in issue). 1. In particular, I am satisfied that the objection pursuant to cl 4.6 of RLEP 2014 is properly made out because it states and I accept that: 1. the application of the height standard is unreasonable or unnecessary in the circumstances of the case; 2. the proposal will facilitate the provision of two affordable rental dwelling houses consistent with the SEPP; 3. the height in excess of the standard comprises "rooms in the roof" which reduces the perceived height and bulk of the dwellings; 4. the non-compliance is minor and limited; 5. there are no unreasonable impacts as a consequence of the additional height; 6. the proposal will present as a single storey building when viewed from adjoining properties; 7. largely for the above reasons there are sufficient environmental planning grounds to justify the departure; 8. the proposal is in the public interest because it is consistent with the objectives of the zone and the standard; 9. there are no matters of significance for state or regional environmental planning 1. The parties are not aware of any other legal reasons preventing the Court from making the orders and approving the development application. 2. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 3. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 4. The parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 5. The Court orders: 1. Leave is granted to amend the application for development consent by relying on the amended plans set out in Annexure A. 2. The appeal is upheld. 3. Development Application Number LDA2019/0091, for construction of a multi dwelling house development containing six (6) two storey dwellings pursuant to State environmental Planning Policy (Affordable Rental Housing)) 2009, at 58-62 Falconer Street, West Ryde NSW is approved subject to the conditions set out in Annexure B. ……………………….. P Clay Acting Commissioner of the Court Annexure A (13.1 KB, pdf) Annexure B (321 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: 02 April 2020