Anbei Investment Pty Ltd v Ryde City Council

[2020] NSWLEC 1450

Land and Environment Court

New South Wales

Medium Neutral Citation:

Anbei Investment Pty Ltd v Ryde City Council [2020] NSWLEC 1450

Hearing dates:

Conciliation conference on 23 July 2020

Date of orders:

24 September 2020

Decision date:

24 September 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

Refer to orders at [7]

Catchwords:

APPEAL – development application – warehouse and distribution centre – neighbourhood shop – conciliation conference – agreement reached

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Ryde Local Environmental Plan 2014

State Environmental Planning Policy No 55 – Remediation of Land

Category:

Principal judgment

Parties:

Anbei Investment Pty Ltd (Applicant)
Ryde City Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
M Chillari (Solicitor) (Respondent)

Solicitors:
McCabe Curwood Pty Ltd (Applicant)
Ryde City Council (Respondent)

File Number(s):

2020/149061

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing buildings and structures, and construction of two warehouses, a retail/office building, parking and ancillary works and the use of the warehouse buildings for the purpose of a warehouse and distribution centre at 29-35 Buffalo Road, Gladesville. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 23 July 2020. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is supported by a Statement of Reasons Jurisdictional Prerequisites, which indicates that there are no jurisdictional issues preventing the Court from making the orders sought in the agreement. The decision agreed upon is for leave to be granted to amend the development application to rely on amended plans and a Phase 2 Limited Contaminated Land Investigation report, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development is for the purpose of warehouses, a neighbourhood shop and office use ancillary to the warehouses, which are all permissible with consent in the IN2 – Light Industrial zone in which the site is located, pursuant to the Ryde Local Environmental Plan 2014 (“RLEP 2014”).

• The proposed development does not breach any development standards that apply pursuant to the RLEP 2014.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. The Phase 2 Contaminated Land Investigation report, dated 13 August 2020, concludes that the site is suitable for ongoing commercial/industrial usage without the need for remediation, subject to some general recommendations.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires that I “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, 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.

7. The Court orders that:

1. The Applicant is granted leave to rely on the following amended plans and documents:

Drawing No.	Title	Rev.	Prepared by	Date
DA00	Cover Sheet	H	Brewster Murray	12.08.2020
DA01	Site Analysis	G	Brewster Murray	12.08.2020
DA02	Site/Roof Plan	G	Brewster Murray	12.08.2020
DA03	Lower Ground Floor Plan	G	Brewster Murray	12.08.2020
DA04	Ground Floor Plan	G	Brewster Murray	12.08.2020
DA05	Level 1 Plan	G	Brewster Murray	12.08.2020
DA06A	Elevations North, South, East & West	G	Brewster Murray	12.08.2020
DA06	Elevations Internal	G	Brewster Murray	12.08.2020
DA07	Sections	G	Brewster Murray	12.08.2020
DA08	Height Plane Diagrams	G	Brewster Murray	12.08.2020
DA09	Finishes Schedule	G	Brewster Murray	12.08.2020
DA10	Demolition Plan	G	Brewster Murray	12.08.2020
DA11	Shadow Diagrams – Summer	G	Brewster Murray	12.08.2020
DA12	Shadow Diagrams – Winter	G	Brewster Murray	12.08.2020
DA13	Perspective Images	G	Brewster Murray	12.08.2020
DA14	GFA Calculation	G	Brewster Murray	12.08.2020
Document		Revision	Prepared by	Date
Phase 2 Limited Contaminated Land Investigation Report		1	Environmental Advisors	13.08.2020

2. The appeal is upheld.

3. Development consent is granted to development application no. LDA2016/0617 for the demolition of existing buildings and structures, and construction of two warehouses, a retail/office building, parking and ancillary works and the use of the warehouse buildings for the purpose of a warehouse and distribution centre at Lot 1 in DP 584202 Lot 14 in DP 6914 and Lot 6 in DP 23006 known as 29-35 Buffalo Road, Gladesville subject to the conditions contained in Annexure ‘A’.

……………………..

J Gray

Commissioner of the Court

Annexure A (285661, pdf)

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Decision last updated: 24 September 2020