Remo West Ryde v City of Ryde Council

[2012] NSWLEC 1266

Land and Environment Court

New South Wales

Medium Neutral Citation:

Remo West Ryde v City of Ryde Council [2012] NSWLEC 1266

Hearing dates:

10 September 2012

Decision date:

21 September 2012

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. By consent, the appeal is upheld.

2. Modification Application No. MOD2011/0184 is approved, subject to the conditions in Annexure "A".

3. The exhibits are returned, with the exception of exhibits 1 and B.

Catchwords:

DEVELOPMENT APPLICATION: Consent orders, mixed use development; resident objector.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Remo West Ryde Pty Ltd (Applicant)
City of Ryde Council (Respondent)
Coles Group Property Developments Ltd (Second Respondent)

Representation:

Mr A. Pickles, Barrister (Applicant)
Mr A. Seton, Solicitor (Respondent)
Mr J. Robson SC (Second Respondent)
Solicitors
Gadens Lawyers (Applicant)
Marsdens Law Group (Respondent)
Norton Rose Australia (Second Respondent)

File Number(s):

10634 of 2012

Judgment

1. COMMISSIONER: This appeal comes before the Court for consent orders in relation to Modification Application No. MOD2011/0184 (the application) for amendments to a mixed-use development at 17 Chatham Road, West Ryde (the site).

1. At the commencement of the hearing, the parties agreed to enter into consent orders, based on changes made to the application. The principle changes were the deletion of proposed amendments to Basement Level 2, Basement Level 1 and Ground Level. The deletion of changes to these levels results in the proposed development being consistent with existing development consents, including the stratum subdivision (LDA 2010/489), the Coles fit-out consent (LDA 2011/148) and the stratum boundary modifications (MOD 2011/98).

1. The application seeks modifications to upper levels of the development, including:

• Change of unit mix from 95 x 1 bedroom units + 98 x 2 bedroom units (193 units in total, approved MOD80/2009) to 63 x 1 bedroom units + 126 x 2 bedroom units + 16 x 3 bedroom units (205 units in total);
• Reduction of commercial gross floor area (GFA);
• Increase in the number of commercial tenancies when compared with the 2007 original consent (559/2007), the 2009 modification consent (MOD80/2009) and the Coles fit-out consent;
• Increase in residential GFA;
• A new car parking layout on levels 1 and 2. An overall reduction in car parking when compared to the 2007 original consent, but an increase in car parking numbers compared to the 2009 modification consent and Coles fit-out consent;
• The proposed roof height of the development has been modified due to the height approved as part of the Coles fit-out consent with an upper podium level (Level 2) of RL 28.55. The proposed overall height of the building (RL 46.55) is greater than the 2007 original consent (RL 46.05) and 2009 modification consent (RL 46.25), in order to maintain floor to floor heights of 3 m; and
• Changes to the building's articulation zone and façade design.

1. In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides:

Application for final orders by consent of parties

35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval.

36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii)the date of the hearing by the Court to consider making the proposed consent orders; and

(iii)the opportunity for any such person to be heard,

or that, in the circumstances of the case, notification is not necessary.

1. In accordance with the Practice Note, one local resident provided evidence at the consent order hearing. The resident's concerns can be summarised as:

• The vehicular entry to the commercial parking area has a conventional ticket dispenser on the entry ramp and it is difficult for some people with a disability to reach the ticket dispenser;
• The disabled residents' parking spaces on level 2 are scattered around the car park and not grouped together, making them difficult to find.

1. The resident objector acknowledged that the entry to the commercial car park is part of the 2007 original consent and is not the subject of this application.

1. I am satisfied that the matters raised by the objector do not warrant the amendment or refusal of the application.

Conclusion

1. In considering the amended plans and documents and agreed conditions of consent (Annexure A) and taking into consideration the issues raised by the objector, I am satisfied that it is 'lawful and appropriate' to grant the consent, having regard to the whole of the circumstances, including the proposed conditions of consent.

Orders

1. The orders of the Court, by consent, are:

1.   The appeal is upheld.

2.   Modification Application No. MOD2011/0184 for amendments to a mixed-use development at 17 Chatham Road, West Ryde, is approved, subject to the conditions in Annexure "A".

3.   The exhibits are returned, with the exception of exhibits 1 and B.

____________

Susan O'Neill

Commissioner of the Court

ANNEXURE A

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Decision last updated: 21 September 2012