Artro Management Pty Ltd v City of Ryde Council

[2019] NSWLEC 1267

Land and Environment Court

New South Wales

Medium Neutral Citation:	Artro Management Pty Ltd v City of Ryde Council [2019] NSWLEC 1267
Hearing dates:	Conciliation conference on 5 April 2019; 24 & 30 May 2019
Date of orders:	14 June 2019
Decision date:	14 June 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1)   The Applicant is granted leave to rely on the amended plans referred to in condition 1 of Annexure “A”. (2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (3)   The appeal is upheld. (4)   Development consent is granted to Development Application No. LDA2018/0267 seeking consent for demolition of existing structures, vegetation removal, earthworks, construction of a three storey building comprising light industrial units, self-storage units, a centre-based child care facility and ancillary retail space with associated car parking, drainage and landscaping on the land at 23-25 Higginbotham Road, Gladesville, subject to the conditions of consent annexed hereto and marked “A.”
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Ryde Local Environmental Plan 2014 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 State Environmental Planning Policy No 55— Remediation of Land
Category:	Principal judgment
Parties:	Artro Management Pty Ltd (Applicant) City of Ryde Council (Respondent)
Representation:	Solicitors: M Parrino, Project Lawyers (Applicant) P Kapetas, The City of Ryde (Respondent)
File Number(s):	2018/361427
Publication restriction:	No

Judgment

1. COMMISSIONER: The applicant, Artro Management Pty Ltd has appealed against the Council’s refusal of its development application for the construction of a commercial/childcare development at 23-25 Higginbotham Road, Gladesville (Site). The appeal is made pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

2. Before the appeal was allocated a hearing date, 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 5 April 2019, 24 & 30 May 2019. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting a conditional development consent to the development application.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. And, this in turn requires me to be satisfied about relevant jurisdictional prerequisites before this function can be exercised. In that regard, the parties ask me to accept the documentation referred to in the s34 agreement in satisfaction of the following jurisdictional matters:

1. The development application was made with the consent in writing of Adam Kaplan, who is the Sole Director of Motive Properties II Pty Ltd, being the owner of the land (Lots 1 and 3 DP23006 and Lot D DP377189, also known as 23 to 25 Higginbotham Road, Gladesville) to which it relates.

2. The land to which the development application relates is zoned IN2 Light Industrial pursuant to the provisions of Ryde Local Environmental Plan 2014 (LEP). Development for the purposes of Light Industries, Self-storage units, Centre-based child care facilities and ancillary retail premises, is permitted with consent within the IN2 Light Industrial zone.

3. The development does not contravene any development standard in the LEP, or any other applicable environmental planning instrument.

4. Clause 6.3 of the LEP imposes a pre-condition that the Court has to be satisfied that the development:

1. is compatible with the flood hazard of the land, and

2. will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

3. incorporates appropriate measures to manage risk to life from flood, and

4. will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

5. is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

5. The satisfaction of this pre-condition is supported by the Flood Impact Assessment of Northrop, dated 10 May 2019 provided with the s34 agreement. I have read report and I am satisfied on that basis that the pre-condition in cl 6.3 of the LEP has been met.

6. Pursuant to cl 23 of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Child Care SEPP), I must take into consideration any applicable provisions of the Child Care Planning Guideline, in relation to the proposed development. The applicable provisions of the Child Care Planning Guideline have been addressed in the Statement of Environmental Effects prepared by Ethos Urban, dated 4 July 2018, and the Supplementary Statement of Environmental Effects prepared by Dfp Planning Consultants, dated May 2019, both of which have been considered and accepted by the Respondent Council. I have also considered these documents and on that basis I am satisfied that the pre-condition in cl 23 of the Child Care SEPP has been met.

7. In accordance with cl 24 of the Child Care SEPP, the Court must consider additional matters for a child care facility proposed in an IN2 Light Industrial zone. These additional matters have been addressed in the Statement of Environmental Effects prepared by Ethos Urban, dated 4 July 2018, and the Supplementary Statement of Environmental Effects prepared by Dfp Planning Consultants, dated May 2019, both of which have been considered and accepted by the Respondent Council. Again after a consideration of the SEE and supplementary SEE, I am satisfied that the pre-condition in cl 24 of the Child Care SEPP has been met.

8. By dint of cl 7(4) of the State Environmental Planning Policy No 55— Remediation of Land (SEPP 55), cl 7(1), (2) and (3) apply. A Preliminary Environmental Site Assessment (ESA) has been undertaken by Environmental Investigation Services, dated 21 June 2018, in accordance with cl 7(2) and (3) of SEPP 55. This report was provided to the Respondent Council. The ESA conclusion was that the Site can be made suitable for the proposed development and use and meet the ‘residential with accessible soil’ health criteria. The Respondent Council has considered and accepted the ESA. I am also satisfied on the basis of the report that the pre-condition in cl 7 of SEPP 55 has been met.

9. Accordingly, as I am satisfied that 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.

10. The Court orders:

1. The Applicant is granted leave to rely on the amended plans referred to in condition 1 of Annexure “A”.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. LDA2018/0267 seeking consent for demolition of existing structures, vegetation removal, earthworks, construction of a three storey building comprising light industrial units, self-storage units, a centre-based child care facility and ancillary retail space with associated car parking, drainage and landscaping on the land at 23-25 Higginbotham Road, Gladesville, subject to the conditions of consent annexed hereto and marked “A.”

………………………….

S Dixon

Senior Commissioner of the Court

Annexure A (239 KB)

**********

Decision last updated: 14 June 2019