Church Street Property Investments Pty Ltd v Council of the City of Ryde

[2021] NSWLEC 1517

Land and Environment Court

New South Wales

Medium Neutral Citation:

Church Street Property Investments Pty Ltd v Council of the City of Ryde [2021] NSWLEC 1517

Hearing dates:

Conciliation conference on 31 May, 16 and 24 June, 19 August 2021

Date of orders:

06 September 2021

Decision date:

06 September 2021

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

Refer to the orders below at [32]

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – residential flat building – consistency with Part 3A Concept Plan – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 4.17, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000 cll 55, 296

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 cl 3B of Schedule 2

Land and Environment Court Act 1979 s 34

Ryde Local Environmental Plan 2014

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Infrastructure) 2007 cll 101, 104

State Environmental Planning Policy No 55—Remediation of Land cl 7

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development cl 30

Texts Cited:

Apartment Design Guide

Land and Environment Court, COVID-19 Pandemic Arrangements Policy (April 2021)

Ryde Development Control Plan 2014

Category:

Principal judgment

Parties:

Church Street Property Investments Pty Ltd (Applicant)
Council of the City of Ryde (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
P Larkin SC (Respondent)

Solicitors:
Fortis Law (Applicant)
Council of the City of Ryde (Respondent)

File Number(s):

2019/404426

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought to the NSW Land and Environment Court (the Court) by Church Street Property Investments Pty Ltd (the Applicant) under the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the respondent Council of the City of Ryde (Council) of Development Application LDA2019/0149 (the DA). In exercising the functions of the consent authority on the appeal the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 3,096m² parcel of land comprising five allotments legally described as Lot 100 in DP851723, Lots 13, 14 and 15 in DP738232, and Lot 7 in DP809282, at 155 Church Street Ryde (the Site). The Site has frontages to Church Street, Waterview Street, Well Street and Parsonage Street.

3. The Site forms part of the land the subject of a concept plan approval made under the provisions of the former Part 3A of the EPA Act. Concept Approval MP09_0216 was approved by the Planning Assessment Commission on 6 March 2013 for the staged development of a mixed use residential and retail development including building envelopes, car parking and associated infrastructure (Concept Plan). The Concept Plan has subsequently been modified on three occasions. Development of the Site is known as Stage A of the Concept Plan and is the final stage.

4. The DA seeks consent for the demolition of all structures on the Site, excavation, site remediation and construction of a ten storey (including mezzanine level) mixed use building comprising a supermarket, five retail shops, two commercial spaces, 43 residential dwellings and 72 serviced apartments over four levels of basement parking, containing 295 parking spaces, and a ground level publicly accessible plaza.

5. The DA was lodged with the Council on 17 May 2019. It was notified to surrounding properties between 31 May 2019 and 5 July 2019 and publicly advertised on 5 June 2019. Thirteen submissions were received, twelve by way of objection.

6. On 10 December 2019 amended and additional documentation was submitted by the Applicant in response to various requests from Council for further information, internal and external referral responses and the public submissions. This documentation was reissued for referral comments to departments internal and external to the Council. It was not renotified “… as the bulk and scale of the development have not been altered, only revisions … to the lower ground and ground floor” (par 39 of the Third Further Statement of Facts and Contentions, 9 April 2021).

7. On 24 December 2019 the Applicant commenced these Class 1 proceedings in the Court. On 2 March 2020, after the receipt of various referral responses, the Council filed its (first) Statement of Facts and Contentions.

8. On 26 May 2020 the Applicant filed a Notice of Motion seeking leave to rely on amended plans and documents. Leave was granted by the Court on 3 June 2020. On 21 July 2020 the Council filed its Amended Statement of Facts and Contentions, in response to the amended plans and documents filed on 26 May 2020.

9. On 1 and 28 September 2020, 16 October 2020 and 19 November 2020 the parties participated in a conciliation conference arranged by the Court under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) that was held before Commissioner Horton. The s34 conciliation conference was terminated on 19 November 2020 in circumstances where the parties failed to reach an agreement, and a hearing was later scheduled by the Court for 15 and 16 April 2021.

10. On 1 February 2021 the Applicant served a Notice of Motion seeking leave to rely on further amended plans and documents. Leave was granted by the Court on 15 February 2021. On 9 April 2021 the Council filed its Third Further Amended Statement of Facts and Contentions (Third SOFC), in response to the amended plans and documents filed on 1 February 2021.

11. In preparation for the hearing, quantity surveying (QS) and traffic engineering experts engaged in joint conferencing and the preparation of joint expert reports. A Joint Traffic Report was filed on 11 April 2021 and two Joint QS Reports were filed on 9 and 14 April 2021.

12. The hearing commenced before me on 15 April 2021 with a view of the Site, and then resumed via Microsoft Teams in line with the Court’s COVID-19 Pandemic Arrangements Policy, published on 1 April 2021 . No oral submissions by members of the public were requested. Following the view of the Site the parties advised the Court that they were likely to reach a resolution of the matter and that the experts were engaged in discussions on possible conditions of consent. At the request of the parties I adjourned the hearing until the following morning.

13. On the morning of 16 April 2021 the parties advised the Court they had reached an agreement in principle and accordingly sought a further adjournment of the hearing in order to finalise matters associated with that agreement. I granted that request and adjourned the matter until 13 May 2021.

14. At the resumed hearing on 13 May 2021 the parties requested the Court to grant a further adjournment of the hearing and order a s34 conciliation conference for some time after 20 May 2021 for the reasons set out in the Affidavit of Paul Kapetas filed by the Council that morning. I granted that request and ordered that the s34 conciliation conference be held on 31 May 2021.

15. On 26 May 2021 the parties filed, amongst other documents, a set of documents prepared by the Applicant entitled “Bundle of Documents Jurisdictional Prerequisites” in three volumes (Applicant’s Bundle) and a set of documents prepared by the Council entitled “Jurisdictional Prerequisites Respondent’s Bundle of Documents” (Council’s Bundle) in one volume.

16. The s34 conciliation conference that commenced on 31 May 2021 was adjourned on several occasions to allow the parties to amend documentation and finalise matters. On 24 June 2021 a s34 agreement signed and dated 22 June 2021 (s34 Agreement), Annexure A draft conditions of consent (Draft Conditions), a set of the plans as referred to in the table at Condition 1 of the Draft Conditions and an “Agreed Statement of Jurisdictional Prerequisites” signed and dated 21 June 2021 (Joint Submission) were provided to the Court. These were discussed at the adjourned s34 conference later that day.

17. On 2 August 2021 the Court advised the Parties that cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) had recently come into effect (after 1 July 2021) following the lapsing of the transitional provisions in cl 296 of the EPA Regulation. These changes meant that amendments to the DA would need to be uploaded to the NSW Planning Portal before the amendments become effective and consent could be granted. The parties were also requested to recast their s34 Agreement to reflect the changed requirements for amending the DA.

18. On 19 August 2021, at the final adjourned s34 conference, the parties advised the Court that pursuant to s 8.15(4) of the EPA Act, this matter was subject to the control and direction of the Ryde Planning Panel (Panel) and the Council needed to obtain the Panel’s consent to any s34 agreement.

19. On 24 August 2021 the parties confirmed the Panel had provided its consent to the s34 agreement and filed with the Court the recast s34 agreement, signed and dated 24 August 2021 (Final s34 Agreement), final draft conditions of consent (Annexure A to the Final s34 Agreement) and a list of all the documents uploaded to the Planning Portal on 10 and 17 August 2021, being the agreed amendments to the DA.

20. 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 DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

21. In the Joint Submission the parties identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

22. The Joint Submission is a comprehensive and detailed document that is accompanied by volumes of supporting documentation (Applicant’s Bundle and Council’s Bundle) all of which are kept on the Court file. I have read that material carefully. Without going through the Joint Submission verbatim, it is my considered opinion, consistent with the parties’ position, that I have jurisdiction to make the orders sought in the Final s34 Agreement. I also agree with the parties that the conditions proposed in the draft conditions at Annexure A to the Final s34 Agreement can be lawfully imposed having regard to the provisions of ss 4.16 and 4.17 of the EPA Act. Of particular importance in my reaching these conclusions are the matters set out in [23]-[29] following.

Satisfaction of jurisdiction

23. In relation to the Concept Plan:

1. The Concept Plan, despite the repeal of Part 3A, continues to have effect, and the DA is to be determined under Part 4 of the EPA Act within the framework under cl 3B of Schedule 2 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (Transition Regulation).

2. The terms of the Concept Plan, as modified, prevail over any environmental planning instrument and any development control plan to the extent of any inconsistency (cl 3B(2)(f) of Schedule 2 of the Transition Regulation).

The DA needs to be “generally consistent” with the terms of the Concept Plan (cl 3B(2)(d) of Schedule 2 of the Transition Regulation). I am satisfied that it is generally consistent with the terms of the Concept Plan, as modified, for the reasons set out in the Joint Submission, and summarised in the Table at pages 5 to 9 of that submission. That table is reproduced below.

3. The proposal has been the subject of a Design Excellence Competition and has been designed to fit within the approved building envelopes (height and setbacks) for Stage A.

4. The proposal does not result in the caps, combined for all stages of the Concept Plan, being exceeded for the maximum gross floor area (GFA) of non-residential uses, maximum number of dwellings or maximum number of car parking spaces.

5. The proposal provides a quantum of publicly accessible open space that brings the total provision for all stages to the amount generally consistent with that required under the Concept Plan. The publicly accessible open space, in the form of a plaza, is provided at the location which is generally consistent with the Concept Plan for Stage A, and public access is ensured by the required easement referred to in Condition 197 of the DA consent.

6. With respect to Condition 26 of the Concept Plan, an agreement has been reached between the parties in relation to the signalisation of the Constitution Road / Bowden Street intersection (the Intersection Agreement) a copy of which is located at Tab 17 of Council’s Bundle. The Intersection Agreement provides that the Council will carry out the signalisation and associated public domain works in the vicinity of the intersection; that the works will be carried out within 18 months of the date of the DA approval and that the Applicant will pay the Council for the cost of these works.

7. I am satisfied, for the reasons set out in the Joint Submission, that the Intersection Agreement provides a mechanism to ensure that the signalisation works are funded and occur in a timely manner. I therefore agree with the parties that the Intersection Agreement provides a mechanism for the delivery of these works that is a “better outcome” than that afforded by a condition of consent, and is not inconsistent with the Concept Plan.

24. In relation to the Ryde Local Environmental Plan 2014 (RLEP), the site is zoned B4 Mixed Use (B4 Zone), the proposed uses are permissible with consent and the development is consistent with the objectives of the B4 Zone. For the reasons set out in [23(2)] above the Concept Plan Approval prevails over any development standards in the RLEP to the extent of any inconsistency. Other provisions of the RLEP that are relevant to this proposal are addressed in paragraphs 26 to 30 of the Joint Submission, and where relevant the recommendations of supporting technical reports are picked up in various conditions of the development consent.

25. In relation to State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) and associated Apartment Design Guide (ADG), the design quality principles of SEPP 65 and the relevant provisions of the ADG have been taken into consideration and adequate regard has been given to them, as required under cl 30(2) of SEPP 65. These matters are addressed in the DA documentation as set out in paragraph 34 of the Joint Submission. A Design Verification Statement prepared by Cox Richardson and Kennedy Associates has been submitted in satisfaction of cl 50(1A) of the EPA Regulation.

26. In relation to State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), an Environmental Site Assessment prepared by Environment Investigations Australia (EIA) dated 7 November 2017 and a Remedial Action Plan (RAP) prepared by EIA dated 14 November 2018, have been lodged in support of the DA, and compliance with the RAP is required by Condition 49 of the DA consent. I am therefore satisfied, as required by cl 7 of SEPP 55, that the land is suitable, or will be suitable after remediation, for the proposed use.

27. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP), an updated BASIX Certificate number 702957M _07 dated 15 April 2021 has been provided demonstrating the development, as amended, satisfies the requirements of the BASIX SEPP, and the certificate is referenced in the conditions of consent (Conditions 4 and 162).

28. State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) applies as the Site has a frontage to a classified road (Church Street). Development consent can not be granted unless the consent authority is satisfied with respect to the matters listed in cl 101 of the SEPP Infrastructure. Traffic and access arrangements have been considered previously by both the NSW Roads and Maritime Services (RMS) and Transport for NSW (TfNSW), and the DA was referred to the RMS for concurrence. The matters for consideration in cll 101 and 104 of the SEPP Infrastructure have been addressed in the documents referred in paragraph 42 of the Joint Submission. Where relevant the recommendations of supporting technical reports are picked up in various conditions of the development consent and the works required by the RMS, as set out in its concurrence letter dated 25 July 2019, have been included in Condition 2.

29. In relation to the remaining matters in s 4.15(1) of the EPA Act:

1. For the reasons set out in [23(2)] above the Concept Plan prevails over any provisions in the Ryde Development Control Plan 2014 (DCP) to the extent of any inconsistency. The proposal’s compliance with relevant provisions of the DCP is addressed at Section 5.1 of the Statement of Environmental Effects (SEE) in Bundle A.

2. Section 6 of the SEE addresses the matters relevant to the likely impacts of the development, the suitability of the site and the public interest (subss (b), (c) and (e) respectively of s 4.15(1) EPA Act).

3. The public submissions made in response to the DA as publicly exhibited in June – July 2019 are included in Council’s Bundle and have been considered in the assessment of the DA and formulation of conditions.

Disposal of proceedings in accordance with the parties’ decision

30. 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’ agreement.

31. The Court notes that:

1. The applicant has amended the application with the consent of the Respondent.

2. The respondent has uploaded the amended application on the NSW planning portal on 10 and 17 August 2021.

3. The applicant has subsequently filed the amended application with the Court on 18 August 2021.

32. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application LDA2019/0149 lodged with the Council of the City of Ryde on 17 May 2019 (as amended), seeking consent for the demolition of structures on the site, excavation, site remediation and construction of a 10 storey (including mezzanine level) mixed use building comprising a supermarket, 5 retail shops, 2 commercial spaces, 43 residential dwellings and 72 serviced apartments over four levels of basement parking comprising 295 on-site parking spaces and associated works at 155 Church Street, Ryde, subject to the conditions in the annexure marked "A”.

…………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (490254, pdf)

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Decision last updated: 06 September 2021