Level Architects Pty Ltd v City of Ryde Council

[2023] NSWLEC 1408

Land and Environment Court

New South Wales

Medium Neutral Citation:

Level Architects Pty Ltd v City of Ryde Council [2023] NSWLEC 1408

Hearing dates:

Conciliation conference on 14 July 2023

Date of orders:

28 July 2023

Decision date:

28 July 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The Applicant’s written request under clause 4.6(3) of Ryde Local Environmental Plan 2014, dated March 2023, is upheld.

(2) The appeal is upheld.

(3) Development Application LDA2021/0394 (as amended) for the demolition of an existing warehouse and erection of 48 industrial units, associated parking and landscaping at 39-41 College Street, Gladesville NSW 2111 is approved subject to the conditions in Annexure A.

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

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

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

Land and Environment Court Act 1979, ss 34, 39

Ryde Local Environmental Plan 2014, cll 4.3, 4.6, 5.21, 6.4, 6.6

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Texts Cited:

Ryde Development Control Plan 2014

Category:

Principal judgment

Parties:

Level Architects Pty Ltd (Applicant)
City of Ryde Council (Respondent)

Representation:

Counsel:
S Simmington (Solicitor) (Applicant)
M Chillari (Solicitor) (Respondent)

Solicitors:
Lindsay Taylor Lawyers (Applicant)
City of Ryde Council (Respondent)

File Number(s):

2022/343847

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Level Architects Pty Ltd (applicant) has appealed the refusal by the respondent, City of Ryde Council (Council), of Development Application No LDA2021/0394 seeking consent for the demolition of an existing warehouse and erection of 48 industrial units, associated parking and landscaping at 39-41 College Street, Gladesville (site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and falls within Class 1 of the Court’s jurisdiction.

3. On 14 July 2023, the parties participated in a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) and evidenced a signed agreement regarding the granting of consent to the applicant’s amended development application, subject to conditions.

4. In regard to the amendments, it is noted that Council has agreed to the amendment of the subject development application, including substitution of plans and additional material. The application, as amended, is as documented in Condition 1 of Annexure A. The applicant filed the amended documents with the Court on 24 May 2023.

5. 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.

6. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the proposal. The parties assisted here with the provision of an agreed statement of jurisdictional pre-requisites (jurisdictional statement), and through their response to questions raised during the conciliation conference. Having taken into consideration the parties’ advice, I make the following findings in regard to relevant jurisdictional queries.

Jurisdiction

State Environmental Planning Policy (Resilience and Hazards) 2021

7. Section 4.6 provides that a consent authority must not grant consent to a development unless it has considered whether the land is contaminated, and if it is, that it is satisfied that the land is suitable (or will be after undergoing remediation) for the proposed use.

8. A Preliminary Site Investigation and Remedial Action Plan have been provided in regard to the proposal. The parties agree that these studies and the requirements of proposed condition 20 (requiring compliance with the requirements of a Remedial Action Plan) address the requirements of s 4.6. The required consideration under s 4.6 has been undertaken and the relevant provision is satisfied.

Ryde Local Environmental Plan 2014

9. The site is zoned E4 General Industrial and the proposed use is permissible in the zone with consent.

10. A 10m height limit applies to buildings on the site under cl 4.3. The proposal has a maximum height of 10.94m which contravenes the height standard. The parties are satisfied that consent can still be granted to the proposal under cl 4.6.

11. In regard to this, I note that a written request pursuant to cl 4.6(3) and dated March 2023 (written request) has been provided by the Applicant seeking to justify the contravention of the development standard. Mindful of cl 4.6(3)(a), the written request seeks to demonstrate that compliance with the height standard is unreasonable or unnecessary on the basis that the objectives of the height control (as provided at cl 4.3(1)) are met, notwithstanding the numeric contravention. The written request argues that:

• Objective (a) is met because there is no breach of the height standard at the street frontage.

• Objectives (b) and (d) are met because the height contravention only throws shadow on carpark and driveway areas and no other amenity impacts are relevant.

• To the extent relevant, objective (c) is met because the proposal is generally consistent with the intended pattern of development for the site.

12. I note that objective (e) is not relevant. On the basis of this reasoning in the written request, I am satisfied that the written request demonstrates that compliance with the height standard is unreasonable or unnecessary because the objectives of the height control are met, notwithstanding the numeric contravention.

13. Mindful of cl 4.6(3)(b), the written request also seeks to demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard. It does this successfully, in my view, by noting the need for level floor plates for development of this form and showing how the contextually minor height contravention results from the slope of the site.

14. Together, this means the written request has adequately addressed the matters required to be demonstrated by cl 4.6(3).

15. I am also satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. In terms of consistency with the objectives of the height standard I rely on the analysis in the written request. The reasoning behind my finding that the development will be in the public interest because it is consistent with the objectives for development within the E4 zone are as follows. The proposal is consistent with the first, second and third objectives because the proposal provides efficient and viable floor space opportunity to assist provision of a range of light industrial and warehouse related land use and related employment opportunities to those particular uses. The proposal is consistent with the third objective because of the demonstration of minimisation of adverse effects. The fifth, sixth and seventh objectives are not related to the particulars of this development.

16. Having a mind to cl 4.6(4)(b), concurrence of the Secretary is not required by virtue of the Court’s powers under s 39(6) of the LEC Act but, in any event, I find that no matters of significance for State or regional environmental planning are raised by the height contravention.

17. Together, these findings mean that the satisfaction pre-requisites of cl 4.6(4) have been met and there is power to grant consent notwithstanding the contravention of the height standard.

18. In relation to flood planning, I note that part of the site is within a flood planning area. The applicant has provided a Flood Impact Assessment (Class 1 application filed 15 November 2022 Tab 9). This report, and subsequent exchanges between the parties and their experts and subsequent conditions of consent (as explained to me during the conciliation conference) adequately addresses relevant provisions at cll 5.21(2) and 5.21(3). In turn, and given the parties’ agreement in regard to this technical matter, I am satisfied in regard to the matters at cl 5.21(2).

19. In relation to acid sulfate soils, I note and accept the parties agreed position that a management plan is not required for the reasons set out in the statement of environmental effects accompanying the abovementioned class 1 application (Tab 7 p 13).

20. In relation to stormwater management, the parties have taken me through relevant plans and Council assessment commentary which satisfy me that the development, as conditioned, meets each of the requirements of cl 6.4(3).

21. In relation to provisions concerning environmental sustainability, I note the applicant’s provision of an “Ecologically Sustainable Development Report” (class 1 application Tab 18) which demonstrates to my satisfaction that the development has had regard to the matters at cl 6.6(2). I further note the changes to the development through the assessment process further concerned with delivering improved environmental sustainability outcomes in this regard.

Other matters

22. Section 4.15(1) of the EPA Act requires a consent authority to take into consideration certain other matters as relevant:

• Mindful of subs (1)(a)(iii), I have given consideration to Ryde Development Control Plan 2014. Here I note the attention given to it in the Statement of Environmental Effects accompanying the Class 1 Application (Tab 7) and the cross references to other specialist reports.

• In regard to subs (1)(d), I note the advice in the parties’ jurisdictional note that the application was advertised and notified to adjoining property owners. No submissions were received.

• I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss (1)(b), (c) and (e) of the EPA Act.

Conclusion

23. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

24. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

25. The Court orders that:

1. The Applicant’s written request under clause 4.6(3) of Ryde Local Environmental Plan 2014, dated March 2023, is upheld.

2. The appeal is upheld.

3. Development Application LDA2021/0394 (as amended) for the demolition of an existing warehouse and erection of 48 industrial units, associated parking and landscaping at 39-41 College Street, Gladesville NSW 2111 is approved subject to the conditions in Annexure A.

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

P Walsh

Commissioner of the Court

343847.22 Annexure A

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Decision last updated: 28 July 2023