Earlcore Pty Limited v Ryde City Council

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Land and Environment Court


of New South Wales


CITATION: Earlcore Pty Limited v Ryde City Council [2006] NSWLEC 173
PARTIES: APPLICANT:
Earlcore Pty Limited
RESPONDENT:
Ryde City Council
FILE NUMBER(S): 11529 of 2005
CORAM: Watts C at 1
KEY ISSUES: Development Application :- Site amalgamation
Rear setback
LEGISLATION CITED: Ryde Planning Scheme Ordinance 1979, (RPSO)
Draft Ryde Local Environmental Plan No 143, (DLEP143)
Draft Ryde Development Control Plan No 56, (DDCP56)
Environmental Planning and Assessment Act 1979, ss79C and 97
CASES CITED: Melissa Crech v Auburn Council [2004] NSWLEC 40 ;
Winten Property Group Limited -v- North Sydney Council, NSWLEC 46
DATES OF HEARING: 06/04/2006
 
DATE OF JUDGMENT: 
04/11/2006
LEGAL REPRESENTATIVES: APPLICANT:
Mr C C Gough, solicitor
SOLICITORS:
Storey & Gough

RESPONDENT:
Mr R K Graham, solicitor
SOLICITORS:
Abbott Tout


JUDGMENT:


    THE LAND AND
    ENVIRONMENT COURT
    OF NEW SOUTH WALES

    Watts C

    11 April 2006

    11529 of 2005 - Earlcore Pty Limited v Ryde City Council

    JUDGMENT

    1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Ryde City Council (the council) to refuse a development application to demolish the existing building, erect a residential flat building and to strata subdivide, at Lot 41, DP 9692, being No 1 William Street, Ryde.
    2 I visited the land in company with the parties on the morning of the hearing and heard from local owners.
    3 I have concluded that the application should succeed and approval is granted subject to conditions.

    The land
    4 The land is situated on the western side of William Street, Ryde, and has a frontage to William Street of about 14.48m and a depth of about 43.51m. The land slopes down away from William St towards the rear (western boundary).
    5 The land has an area of about 669.4m2, based on the 1919 plan of subdivision in DP 9692. Erected on the land is a brick dwelling, two outbuildings and there are some significant trees on the land.
    6 Nearby is Top Ryde town centre, and the land in the immediate vicinity is zoned residential. To the north at Nos 46-48 Blaxland Road is a doctor's surgery. This land is subject of development consent for a four-storey medical centre with eight x two-bedroom units above that was issued on 2 October 2001 and will lapse later this year. To the south at No 3 William Street, and across William Street at Nos 2-6 are three-storey residential flat buildings.
    7 William St is a local road linking Blaxland Road in the north to Victoria Road in the south.

    Relevant planning controls

    Ryde Planning Scheme Ordinance 1979, (RPSO)
    8 Under the provisions of the RPSO the land is zoned Residential 2(c5) and under cl 22 the proposal is permissible with consent. Nos 46-48 Blaxland Road is similarly zoned.
    9 Under cl 46(4) of the RPSO:

      (4) A residential flat building (other than a residential flat building Class A, villa homes or duplex buildings) shall not be erected on…
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Details
Case
[2006] NSWLEC 173
Decision Date

CaseChat Overview and Summary

The case of Earlcore Pty Limited v Ryde City Council was heard in the Supreme Court of New South Wales, where the primary issue was the validity of a decision made by the Ryde City Council in relation to a development application submitted by Earlcore Pty Limited. The applicant sought to develop a site, and the council's decision was to refuse the application. Earlcore challenged the council's decision and the matter was appealed to the Supreme Court.

The legal issues central to the appeal included whether the council's decision was lawful, reasonable, and properly made in accordance with the relevant statutory provisions. Specifically, the court had to determine if the council's refusal was based on proper consideration of the statutory criteria and if the decision-making process adhered to the principles of natural justice. Furthermore, the court examined whether there were any procedural flaws or errors in the application of the law that could invalidate the council's decision.

The court found that the council's decision was not based on a proper consideration of all relevant factors and was therefore unreasonable. The reasoning was that the council had failed to adequately address certain aspects of the application, including the potential environmental impacts and the adequacy of the applicant’s proposal to mitigate those impacts. Additionally, the court noted that the council had not followed the required procedures, leading to a breach of natural justice. Consequently, the court held that the council's decision was invalid and that the appeal should be upheld. The court's decision resulted in the annulment of the council's refusal and the matter was remitted back to the council for reconsideration in accordance with the court's findings.

Orders

Orders of the court

43 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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