Latrade (Australia) Pty Limited v Council of the City of Ryde - [2022] NSWLEC 1281

Land and Environment Court

New South Wales

Medium Neutral Citation: Latrade (Australia) Pty Limited v Council of the City of Ryde [2022] NSWLEC 1281
Hearing dates: Conciliation conference on 3 and 13 May 2022, final agreement filed 13 May 2022
Date of orders: 14 July 2022
Decision date: 14 July 2022
Jurisdiction: Class 1
Before: Pullinger AC
Decision:
The Court orders that:
1) Leave is granted to the Applicant to amend Development Application LDA2021/0139 and rely on the amended plans and documents listed at condition 1 of Annexure A.
2) The Applicant’s written request, pursuant to clause 4.6 of the Ryde Local Environmental Plan 2014 (RLEP), seeking to vary the development standard for floor space ratio as set out at clause 4.4 of the RLEP, is upheld.
3) The appeal is upheld.
4) Consent is granted to Development Application LDA2021/0139 (as amended) for alterations and additions to the existing three-storey mixed use development at 126-128 Pittwater Road, Gladesville, subject to the conditions of consent contained at Annexure A.

Catchwords:
DEVELOPMENT APPLICATION – mixed-use development – cl 4.6 written request – floor space ratio – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7
Environmental Planning and Assessment Regulation 2000, cl 55
Land and Environment Court Act 1979, s 34
Ryde Local Environmental Plan 2014, cll 4.4, 4.6, 5.10, 6.2, 6.4
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, cl 2.118
State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Cases Cited:
Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2021)

Texts Cited:
Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2021)

Category: Principal judgment
Parties: Latrade (Australia) Pty Limited (Applicant)
Council of the City of Ryde (Respondent
Representation:
Counsel:
G Hartley (Solicitor) (Applicant)
M Chillari (Solicitor) (Respondent)
Solicitors:
Hartley Solicitors (Applicant)
Council of the City of Ryde (Respondent)

File Number(s): 2022/13924
Publication restriction: Nil

Judgment

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 refusal of Development Application LDA2021/0139 (the DA) by the Council of the City of Ryde (the Respondent). The DA sought consent for alterations and additions to the existing three-storey mixed use development at 126-128 Pittwater Road, Gladesville (the site).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 and 13 May 2022. I presided over the conciliation conference.
Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published in February 2022, and at the request of the parties, the matter commenced with a site viewing limited in the number of participants before resuming at the Respondent’s offices.
During the conciliation conference, 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.
Whilst the amended DA remains largely the same as the original proposal, a series of design changes have cumulatively resolved the contentions initially raised by the Respondent, which in turn related to floor space exceedance, deficient landscape design and over-development of the site, amongst other contentions.
Of relevance, the amended DA has been reconfigured to result in an increased setback from the site boundary to the proposed additions, the introduction of upward-facing louvres on proposed windows to mitigate against potential light spill, acoustic treatment to an existing car park exhaust and an augmented landscape design along the site’s boundaries.
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.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
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.
The DA was publicly notified from 10 May 2021 to 31 May 2021. Five submissions were received by the Respondent. Additionally, two affected residents provided oral evidence at the commencement of the s34 conciliation conference. The parties agree that the final design changes incorporated within the amended DA satisfactorily resolve the matters raised in these public submissions. Accordingly, I am satisfied that cl 4.15(1) of the EPA Act has been appropriately addressed.
The parties agree, and I am satisfied, that the Ryde Local Environmental Plan 2014 (RLEP) is a relevant environmental planning instrument. The site is zoned B1 Neighbourhood Centre and the proposed development - characterised as mixed-use development - is permissible with consent and that the amended DA achieves the objectives of the B1 zone, including to accommodate retail uses to serve community needs.
The parties agree, and I am satisfied, that all principal development standards of the RLEP have been met by the amended DA, with the exception of cl 4.4 - Floor space ratio (FSR) - which establishes a maximum FSR of 0.8:1 for the site.
In such an instance, cl 4.6(3) of the RLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.
Clause 4.6(4) of the RLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.
Additionally, cl 4.6(4)(b) of the RLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.
As required by cl 4.6 of the RLEP, the Applicant has provided a written request (prepared by ABC Planning and dated May 2022) seeking to vary the FSR development standard.
The parties agree, and I am satisfied, that this written request adequately justifies the variance to the FSR development standard for the reasons set out in the subsequent paragraphs.
The objectives of the RLEP B1 Neighbourhood Centre land use zone include to provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood, and to encourage employment opportunities in accessible locations. The parties agree, and I am satisfied, the amended DA meets these objectives.
The objectives of cl 4.4 - FSR - of the RLEP seek to to provide effective control over the bulk of future development and to allow appropriate levels of development for specific areas. The parties agree, and I am satisfied, the amended DA meets these objectives.
The proposed FSR of 1.092:1 represents an increase of 0.027:1 to the existing approved FSR evident on the site today (1.065:1). This in turn represents a total variation of 0.292:1 from the applicable 0.80:1 FSR development standard set out at cl 4.4 of the RLEP. The proposed net additional gross floor area equates to 58sqm.
The parties agree that a significant portion of the existing FSR exceedance is attributable to surplus basement parking beyond the Respondent’s maximum parking requirements (451sqm). The proposed additional retail floor space of 139sqm has been assessed as generating demand for 6 car spaces, which therefore has the effect of reducing surplus car parking in the basement. This offsets the increased retail gross floor area at ground level, and results in the proposed net increase of 58sqm.
The proposed additions will not be discernible from public vantage points along Pittwater Road. The proposed additions are set back 13.43m from the site’s Gannet Street frontage and set back 3.36m from the western site boundary. Augmented landscape design includes supplementary planting within the front setback to Gannet Street and within the western site boundary setback to mitigate against amenity impacts with the immediate neighbouring properties.
The proposed additions will partially enclose an existing raised open terrace, currently utilised by staff. The proposal incorporates measures to mitigate against visual and acoustic privacy impacts by acoustically attenuating an existing car park exhaust, by installing fixed louvres to reduce possible light spill, and through the introduction of comprehensive landscape design treatments along the site boundary. The form and scale of the additions have been refined to maintain acceptable levels of solar access to neighbouring dwellings and their private open space.
Consequently, the parties agree, and I am satisfied, the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the FSR development standard.
Further - the parties agree, and I am satisfied, that the amended DA meets the requirements of cl 5.10 - Heritage conservation - of the RLEP. The site is not identified as heritage item nor located within a heritage conservation area.
The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 6.2 - Earthworks - of the RLEP. The proposal involves no earthworks.
The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 6.4 - Stormwater management - of the RLEP. The proposal involves no increase of impervious areas and no drainage works.
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). The proposal does not involve any changes to the existing approved residential units, and will not result in any adverse impacts upon existing residential uses within the site. Consequently, consideration of SEPP 65 is not required in the assessment of the proposal.
The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree the site has historically been used for residential purposes not associated with contamination. Consequently, I am satisfied the site is unlikely to be contaminated and further investigation is not required. Accordingly, I am satisfied the amended DA addresses the matters outlined in cl 4.6 of SEPP Resilience and Hazards.
The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure). Pittwater Road is identified as a classified road (regional), however since the proposal does not alter the existing traffic arrangements at the site, the matters to be addressed at cl 2.118 of SEPP Transport and Infrastructure are not applicable in this instance.
The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP). The proposal involves the removal of 10 trees, each identified as being dead. The Applicant has prepared a landscape design that include new trees in similar locations along the site boundary and has also provided an ongoing landscape maintenance schedule. I am satisfied the amended DA meets the objectives of the Vegetation SEPP.
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.
The Court notes that:

The Applicant has amended Development Application LDA2021/0139 with the agreement of the Respondent pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000.

The amended Development Application was uploaded to the NSW Planning Portal on 8 July 2022.

The Applicant has filed the amended Development Application with the Court on 13 May 2022.

Orders

The Court orders that:

Leave is granted to the Applicant to amend Development Application LDA2021/0139 and rely on the amended plans and documents listed at condition 1 of Annexure A.

The Applicant’s written request, pursuant to clause 4.6 of the Ryde Local Environmental Plan 2014 (RLEP), seeking to vary the development standard for floor space ratio as set out at clause 4.4 of the RLEP, is upheld.

The appeal is upheld.

Consent is granted to Development Application LDA2021/0139 (as amended) for alterations and additions to the existing three-storey mixed use development at 126-128 Pittwater Road, Gladesville, subject to the conditions of consent contained at Annexure A.

………………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (159336, pdf)

**********

Decision last updated: 14 July 2022

Medium Neutral Citation:	Latrade (Australia) Pty Limited v Council of the City of Ryde [2022] NSWLEC 1281
Hearing dates:	Conciliation conference on 3 and 13 May 2022, final agreement filed 13 May 2022
Date of orders:	14 July 2022
Decision date:	14 July 2022
Jurisdiction:	Class 1
Before:	Pullinger AC
Decision:	The Court orders that: 1) Leave is granted to the Applicant to amend Development Application LDA2021/0139 and rely on the amended plans and documents listed at condition 1 of Annexure A. 2) The Applicant’s written request, pursuant to clause 4.6 of the Ryde Local Environmental Plan 2014 (RLEP), seeking to vary the development standard for floor space ratio as set out at clause 4.4 of the RLEP, is upheld. 3) The appeal is upheld. 4) Consent is granted to Development Application LDA2021/0139 (as amended) for alterations and additions to the existing three-storey mixed use development at 126-128 Pittwater Road, Gladesville, subject to the conditions of consent contained at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – mixed-use development – cl 4.6 written request – floor space ratio – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Ryde Local Environmental Plan 2014, cll 4.4, 4.6, 5.10, 6.2, 6.4 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, cl 2.118 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017
Cases Cited:	Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2021)
Texts Cited:	Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2021)
Category:	Principal judgment
Parties:	Latrade (Australia) Pty Limited (Applicant) Council of the City of Ryde (Respondent
Representation:	Counsel: G Hartley (Solicitor) (Applicant) M Chillari (Solicitor) (Respondent) Solicitors: Hartley Solicitors (Applicant) Council of the City of Ryde (Respondent)
File Number(s):	2022/13924
Publication restriction:	Nil