Balintore NSW Group Pty Ltd v Council of the City of Ryde
[2022] NSWLEC 1079
•16 February 2022
Land and Environment Court
New South Wales
Medium Neutral Citation: Balintore NSW Group Pty Ltd v Council of the City of Ryde [2022] NSWLEC 1079 Hearing dates: 3 and 4 February 2022, final agreement filed 4 February 2022 Date of orders: 16 February 2022 Decision date: 16 February 2022 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that:
1) Leave is granted to the Applicant to amend Development Application LDA2021/125 and rely on the amended plans and documents listed at condition 1 of Annexure A.
2) Pursuant to Section 8.15(3) of the EPA Act, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application as agreed or assessed.
3) The appeal is upheld.
4) Consent is granted to Development Application LDA2021/125 for the demolition of the existing dwelling and construction of a 5-storey residential apartment building with basement car parking on land at 1 Stansell Street, Gladesville NSW, subject to the conditions of consent contained at Annexure A.
Catchwords: DEVELOPMENT APPLICATION – residential apartment development – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 2.22, 4.16, 8.7, 8.15
Environmental Planning and Assessment Regulation 2000, cl 50
Land and Environment Court Act 1979, s 34
Ryde Local Environmental Plan 2014, 4.3, 4.4, 6.1, 6.2, 6.4
State Environmental Planning Policy No 55—Remediation of Land, cl 7
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Texts Cited: Apartment Design Guide
Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2021)
Category: Principal judgment Parties: Balintore NSW Group Pty Ltd (Applicant)
Council of the City of Ryde (Respondent)Representation: Counsel:
Solicitors:
T To (Applicant)
G Farland (Respondent)
Project Lawyers (Applicant)
Council of the City of Ryde (Respondent)
File Number(s): 2021/209749 Publication restriction: No
Judgment
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COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application LDA2021/125 (the DA) by the Council of the City of Ryde (the Respondent). The DA sought consent for the demolition of existing structures and construction of a 6-storey residential apartment building on land at 1 Stansell Street, Gladesville (the site).
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The Court arranged a hearing and conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 and 4 February 2022. I presided over the hearing and conciliation conference.
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Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 1 December 2021, the matter commenced with a site view limited in the number of participants, and thereafter was conducted by Microsoft Teams.
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Upon re-entering the conciliation conference phase, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.
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Whilst the amended DA remains substantially the same as the original DA, a series of changes cumulatively resolve the contentions initially raised by the Respondent, which in turn relate primarily to building height, site isolation, building form and scale, amenity impacts, landscape design and streetscape impacts, amongst other contentions.
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Of note, the amended DA has been reduced in height by one storey and reconfigured to more closely reflect the anticipated future form of adjacent sites in the immediate vicinity.
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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 amended DA.
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There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
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In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.
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The original DA was publicly notified on 21 April 2021 and the Respondent received 7 submissions raising a number of concerns as set out within the Statement of Facts and Contentions accompanying this matter. The parties agree, and I am satisfied, that mandatory community consultation requirements set out at s 2.22 of the EPA Act have been met.
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The parties agree, and I am satisfied, the Ryde Local Environmental Plan 2014 (RLEP) is a relevant environmental planning instrument. The site is zoned B4 Mixed Use and the proposed development - characterised as a residential apartment building - is permissible with consent.
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The parties agree, and I am satisfied, that all principal development standards of the RLEP have been met by the proposal, and specifically that the amended DA conforms with the development standards set out at cl 4.3 - Height of Buildings - and cl 4.4 - Floor Space Ratio.
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The parties agree, and I am satisfied, that those matters set out in cl 6.1 - Acid sulfate soils - of the RLEP have been adequately addressed. It is noted that matters pertaining to acid sulfate soils do not arise as the site is not identified within the relevant acid sulfate soils maps.
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The parties agree, and I am satisfied, that matters set out in cl 6.2 - Earthworks - of the RLEP have been adequately addressed. It is noted the proposed earthworks and excavation have been assessed as not having a detrimental impact on the soil stability or the amenity of the neighbouring uses, and appropriate conditions of consent are imposed.
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The parties agree, and I am satisfied, that matters set out in cl 6.4 - Stormwater management - of the RLEP have been appropriately demonstrated.
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The parties agree, and I am satisfied, that State Environmental Planning Policy 55 – Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. The Applicant has provided a Detailed Site Investigation, prepared by Prism Safety Pty Ltd and dated 30 November 2020, and as such, I am satisfied cl 7(1) of SEPP 55 has been appropriately addressed.
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The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). Pursuant to the provisions of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), the Applicant's architect, Youssef El Khawaja (registered architect 8933), has prepared a Design Verification Statement dated 12 October 2021, fulfilling the requirements of cl 50(1AB) of the EPA Reg.
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The parties agree, and I am satisfied, that the DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX). A BASIX certificate, prepared by Green Star Energy Solutions, and dated 3 February 2022 has been submitted with the DA (as amended). Conditions of consent are imposed to ensure compliance with the BASIX certificate.
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Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.
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The Court notes that:
The Applicant has amended the DA with the consent of the Respondent.
The amended DA was uploaded to the NSW Planning Portal on 4 February 2022, with reference number PAN 192293.
The Applicant has filed the amended DA with the Court on 4 February 2022.
The Respondent shall register the Court’s Judgment in this matter on the NSW Planning Portal within 14 days of the date of this Judgment.
Orders
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The Court orders that:
Leave is granted to the Applicant to amend Development Application LDA2021/125 and rely on the amended plans and documents listed at condition 1 of Annexure A.
Pursuant to Section 8.15(3) of the EPA Act, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application as agreed or assessed.
The appeal is upheld.
Consent is granted to Development Application LDA2021/125 for the demolition of the existing dwelling and construction of a 5-storey residential apartment building with basement car parking on land at 1 Stansell Street, Gladesville NSW, subject to the conditions of consent contained at Annexure A.
………………………..
M Pullinger
Acting Commissioner of the Court
Annexure A (375819, pdf)
Architectural Landscape Plans (3595662, pdf)
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Decision last updated: 16 February 2022
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