Tyson v Ryde CC - [2005] NSWLEC 473

Land and Environment Court

of New South Wales

CITATION:
Tyson v Ryde CC [2005] NSWLEC 473

PARTIES:
APPLICANT
Colin Michael Tyson
RESPONDENT
Ryde City Council

FILE NUMBER(S):
11037 of 2004

CORAM:
Murrell C

KEY ISSUES:
Development Application :- Construction of 4 villas - Landscaping - Streetscape - Carparking - Driveway - Design - Threatened Species - impact on adjoining residences and impact on riparian zone - Bushfire requirments.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Ryde Planning Scheme Ordinance
Threatened Species Conservation Act
Foreshores and Rivers Act

CASES CITED:
Plumb v Penrith City Council [2005] NSWLEC 223;
BGP Properties P/L v Lake Macquarie City Council [2004] NSWLEC 399

DATES OF HEARING: 22/02/2005 , 2/06/2005

EX TEMPORE JUDGMENT DATE:
08/19/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr A. M. Pickles, barrister
instructed by B T Goldsmith Planning
RESPONDENT
Mr T. Robinson, SC
with Ms S. Duggan, barrister
Instructed by Ms J. Smith
of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

19 August 2005

11037 of 2004 Colin Michael Tyson v Ryde City Council
JUDGMENT

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against Ryde City Council’s refusal of a development application for the erection of four villas on the property known as No. 6 Stratford Avenue, Denistone. The site has an area of approximately 1390 sq m, 20 m in width with varying side boundaries of 72 and 60.

2 The subject site is adjoined at the rear by a creek, which runs into Denistone Park. This is an intermittent watercourse, according to the council officer’s report, that originates in Denistone Park and enters a piped system under the northern railway line. The site is adjoined on either side by residential properties. The provision of access handles provides either dual occupancy or two dwellings on the sites immediately adjoining the subject property.

3 The area is one that is depicted by low and medium density development. There are a number of villa developments in Stratford Avenue and the subject site is Zoned 2(a) under the Ryde Planning Scheme Ordinance where villa development is a permissible use by virtue of an interim development order. In terms of the statutory planning regime for the site, there are few controls within the deemed LEP that relate to the site. The deemed LEP contains a provision for a Tree Preservation Order in terms of cl 41.1 that covers the subject site. The other relevant LEP provisions include cl 34.1: for the erection of a building within view of any waterway or public reserve into consideration is to be given to the probable aesthetic appearance of the proposed building; and cl 56A(3) where in the 2(a) zone, the site area for each dwelling is not less than 300 sq m and that each dwelling must have a landscaped area of not less than 120 sq m.

4 The relevant development control plans include the Urban Housing DCP and DCP21A…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWLEC 473
Decision Date: 08/19/2005

CaseChat Overview and Summary

The case of Tyson v Ryde City Council [2005] NSWLEC 473, presided over by Murrell C, revolves around an appeal against Ryde City Council's refusal of a development application concerning the erection of four villas on a property at No. 6 Stratford Avenue, Denistone. The applicant, Colin Michael Tyson, sought to construct four villas on a 1390 sq m site zoned for villa development under the Ryde Planning Scheme Ordinance. The site is bordered by residential properties and an intermittent creek that flows into Denistone Park.

The legal issues in the case centered on whether the proposed development complied with the Environmental Planning and Assessment Act 1979, the Ryde Planning Scheme Ordinance, the Threatened Species Conservation Act, and the Foreshores and Rivers Act. Specifically, the court had to assess the impact of the proposed development on threatened species, the ecological community, the riparian zone, and the surrounding residential properties. Other concerns included compliance with bushfire requirements, site coverage, setbacks, landscaping, and streetscape considerations.

The court conducted an eight-part test as mandated by the Environmental Planning and Assessment Act to determine if the proposed development would have a significant impact on threatened species and ecological communities. After considering expert evidence, the court concluded that the proposed development would not likely have a significant effect on the endangered ecological community and, therefore, a Species Impact Statement was not required. The court also found that the amended plans, which reduced the footprint of villa A and adjusted landscaping and levels, addressed most concerns raised by adjoining residents and experts.

The court assessed various factors, including the precautionary principle and ecologically sustainable development, in making its decision. The court concluded that the proposed development, with appropriate conditions, would not unreasonably impact the amenity of adjoining properties and would contribute positively to the area's overall amenity. The court also found that the development would satisfy bushfire protection requirements and maintain native vegetation in the riparian zone.

The court approved the development application, subject to certain conditions that address concerns related to tree protection, landscaping, bushfire requirements, and the planting of replacement trees. These conditions were generally agreed upon by the parties and aimed to ensure the survival of trees, maintain water flows, and comply with planning for bushfire protection. The court emphasized the importance of a balanced decision-making process that considers various planning objectives and principles.

Orders