Macquarie Telecom Pty Ltd v Council of the City of Ryde

[2019] NSWLEC 1470

Land and Environment Court

New South Wales

Medium Neutral Citation:	Macquarie Telecom Pty Ltd v Council of the City of Ryde [2019] NSWLEC 1470
Hearing dates:	Conciliation conference on 17 September 2019
Date of orders:	03 October 2019
Decision date:	03 October 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See orders at [9] below
Catchwords:	DEVELOPMENT APPLICATION – extension to existing facility – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Ryde Local Environmental Plan 2014
Category:	Principal judgment
Parties:	Macquarie Telecom Pty Ltd (Applicant) Council of the City of Ryde(Respondent)
Representation:	Counsel: S Duggan (Applicant) P Kapetas (Solicitor) (Respondent)   Solicitors: Allens (Applicant) City of Ryde (Respondent)
File Number(s):	2019/89912
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act1979 (EPA Act) by the applicant against the deemed refusal of its development application LDA/2018/0322. The original development application sought approval for alterations and additions to the existing data centre warehouse involving a new six storey addition at the rear of the data centre. The works are proposed at 17-23 Talavera Road, Macquarie Park.

2. On 13 August 2018, the Applicant lodged a development application with Council. Following expiration of the deemed refusal period an appeal was filed.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 17 September 2019. Through the conciliation process the parties have agreed an amended design development.

4. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.55 of the EPA Act.

5. Following the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.55(1A) of the EPA Act.

6. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The development application is made with the consent in writing of the owner of the property.

2. The land to which the development relates is zoned B7 Business Park zone pursuant to the Ryde Local Environmental Plan 2014 (LEP 2014). The development is defined as ‘high technology industry’ and is permissible within the zone as ‘light industry’. The proposed development complies with the development standards within LEP 2014.

7. 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’ decision.

8. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

9. The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

1. The Applicant is granted leave to amend Development Application No. LDA2018/0322 and rely upon the following additional amended documents:

Document	Prepared By	Dated
Updates to previously submitted Flood Impact Assessment	Northrop	28.06.2019
Civil Engineering Design Package – Trunk Drainage Works (Job Number: 170095, Revision 01)	Northrop	08.09.2017

2. The Appeal is upheld.

3. Deferred commencement development consent is granted to Development Application No. LDA2018/0322 for alterations and additions to the existing data centre involving the construction of a 6 storey rear addition, landscaping and on-grade parking at 17-23 Talavera Road, Macquarie Park, subject to the conditions of consent annexed hereto and marked ‘A’.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (188 KB)

**********

Decision last updated: 09 October 2019