Zhang v City of Ryde Council [2015] NSWLEC 1091

Zhang v City of Ryde Council [2015] NSWLEC 1091

There was no inconsistency between cl 4.5A of LEP 2010 and the SEPP Affordable Housing floor space ratio control because they regulated different aspects of development. Clause 4.5A therefore applied and the 1,011.7 sq m site did not provide the 1,200 sq m required for four dwellings. As no written cl 4.6 request was provided to vary the standard, the proposed four-dwelling development was prohibited and had to be refused, notwithstanding the Court's finding that the amended design was compatible with the local area and not contrary to the zone objectives.

Jurisdiction
Australia
Judgment Date
08 April 2015
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application No. Lda/2014/0220 / Principal Judgment After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application' 'in Fill Affordable Housing Development' 'inconsistency Between Environmental Planning Instruments' 'density Controls for Zone R2 Low Density Residential' 'character of the Local Area' 'zone Objectives' 'clause 4.6 Variation Request']
['planning and Environment Law'] ['development Application' 'in Fill Affordable Housing Development' 'inconsistency Between Environmental Planning Instruments' 'density Controls for Zone R2 Low Density Residential' 'character of the Local Area' 'zone Objectives' 'clause 4.6 Variation Request']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application No. Lda/2014/0220 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether cl 4.5A of Ryde Local Environmental Plan 2010 was inconsistent with cl 13 of State Environmental Planning Policy (Affordable Rental Housing) 2009 so that the SEPP prevailed under cl 8.' 'Whether the proposed four-dwelling in-fill affordable housing development complied with the applicable density control or could proceed without a written cl 4.6 request.' 'Whether the design of the proposed development was compatible with the character of the local area under cl 30A of State Environmental Planning Policy (Affordable Rental Housing) 2009.' 'Whether the proposal was inconsistent with the R2 Low Density Residential zone objectives.']

Ratio Decidendi

There was no inconsistency between cl 4.5A of LEP 2010 and the SEPP Affordable Housing floor space ratio control because they regulated different aspects of development. Clause 4.5A therefore applied and the 1,011.7 sq m site did not provide the 1,200 sq m required for four dwellings. As no written cl 4.6 request was provided to vary the standard, the proposed four-dwelling development was prohibited and had to be refused, notwithstanding the Court's finding that the amended design was compatible with the local area and not contrary to the zone objectives.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development Application No. LDA/2014/0220 for the demolition of all existing improvements and the construction of an in-fill affordable housing development at 492 Blaxland Road, Denistone is refused.' 'The exhibits are returned with the exception of exhibit 1.' "The Court notes the...