White v City of Ryde Council

[2024] NSWLEC 1313

Land and Environment Court

New South Wales

Medium Neutral Citation:

White v City of Ryde Council [2024] NSWLEC 1313

Hearing dates:

Conciliation Conference on 28 May 2024

Date of orders:

11 June 2024

Decision date:

11 June 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Application LDA2021/0445 for the construction and operation of a part 2/part 3 level centre-based child care facility catering for up to 48 children serviced by 11 on-site car parking spaces and associated landscaping and stormwater management works, at Lot 10 DP 7159 known as 5 Aeolus Avenue, Ryde is determined by the grant of consent subject to the conditions contained in the annexure marked A.

(3) The Applicant is to pay the respondent’s costs thrown away as a result of the amendment pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed in the sum of $5,000.

Catchwords:

DEVELOPMENT APPEAL – child care facility – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss Pt 4, 4.16, 8.7

Land and Environment Court Act 1979, s 34

Local Land Services Act 2013, s 60O

Environmental Planning and Assessment Regulation 2000, cl 55

Environmental Planning and Assessment Regulation 2021, Sch 6, s 3

Ryde Local Environmental Plan 2014, Sch 5, cll 4.4, 5.10, 6.2

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.7

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, Pts 1, 2, 3, 4, 5, 6, 7

State Environmental Planning Policy (Exempt & Complying Development Codes) 2008, Pt 7

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, Pts 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, s 3.23

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Texts Cited:

NSW Department of Planning, Industry and Environment, Child Care Planning Guideline, September 2021

NSW Department of Urban Affairs and Planning, Managing Land Contamination, August 1998

Practice Note – Class 1 Development Appeals

Category:

Principal judgment

Parties:

Nigel White (Applicant)
City of Ryde Council (Respondent)

Representation:

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

Solicitors:
Conomos Legal (Applicant)
The City of Ryde (Respondent)

File Number(s):

2023/128672

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application LDA2021/0445 for the construction and operation of a part 2/part 3 level child care facility catering for up to 48 children serviced by 11 on-site car parking spaces and associated landscaping and stormwater management works (the Proposed Development) at 5 Aeolus Avenue, Ryde legally described as Lot 10 in DP 7159 (the Site).

2. The hearing of the proceedings had commenced on site on 27 May 2024 and the Court heard from seven objectors regarding traffic and acoustic impact issues, which repeated the concerns as particularised in contentions 8 and 9 of the Respondent’s Statement of Facts and Contentions (SOFAC) filed 24 May 2023.

3. The parties had participated in a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) before Gray C on 6 November 2023 which was terminated because the parties were unable to reach an agreement at that time or within the timeframe envisaged by paragraph 53 of the Practice Note – Class 1 Development Appeals.

4. The parties have agreed that the contentions set out in Part B of the Respondent’s SOFAC have been resolved which include the following:

1. Traffic issues, especially traffic congestion issues for vehicles travelling west‑bound along Aeolus Ave to Great North Road;

2. Acoustic impact issues; and

3. Satisfaction of the Child Care Planning Guidelines.

5. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 28 May 2024 and the hearing was adjourned and then vacated. I presided over the conciliation conference.

6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

7. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and the parties explained how the jurisdictional prerequisites have been satisfied in an agreed statement of jurisdictional prerequisites (Jurisdictional Statement) from which I have set out the explanation as to how each jurisdictional prerequisite has been satisfied.

10. The DA was lodged with the Respondent Council on 23 December 2021 being prior to the commencement of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021) and pursuant to s 3 of Sch 6 of the EPA Regulation 2021, the Environmental Planning and Assessment Regulation 2000 continues to apply as the Proposed Development has not been finally determined before 1 March 2022.

11. The Applicant is the town planner engaged by the owners of the Site who gave their consent to the lodgment of the application on 20 August 2020 and again on 27 February 2023 included at Tabs 8 and 28 of the Class 1 Application filed 21 April 2023.

12. The Site and surrounds are located in an R2 – Low Density Residential zone pursuant to the Ryde Local Environmental Plan 2014 (RLEP). The Proposed Development is permissible with consent in the R2 Zone.

13. Consent is not sought in this matter for demolition of the existing dwelling house because the Applicant proposed to rely on Pt 7 of the State Environmental Planning Policy (Exempt & Complying Development Codes) 2008, which provides for the Demolition Code, which is a complying development code. The Demolition Code enables the demolition of a dwelling house to be complying development and thus the subject of a complying development certificate.

14. Consent is sought for landscaping which includes the removal of trees. Proposed consent condition 1 requires that the development is to be carried out strictly in accordance with the approved plans and support documents referred to within that condition, which include The Tree Inspection Report prepared by Treehaven Environscapes (30 November 2021) filed at Tab 12 of the Class 1 Application.

15. The State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) was repealed on 1 March 2022 however, its operative provisions were transferred to Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP). Relevantly, whilst Ch 2 of the Biodiversity SEPP provides a general requirement to obtain a permit to clear vegetation in a non-rural area of the State s 2.7(1) of the Biodiversity SEPP provides as follows:

(1) A permit or approval to clear vegetation is not required under this Chapter if it is clearing of a kind that is authorised under the Local Land Services Act 2013, section 60O or Part 5B.

16. Section 60O of the Local Land Services Act 2013 authorises clearing of vegetation by a development consent under Pt 4 of the EPA Act. Accordingly, the effect of the need for a permit pursuant to Ch 2 of the Biodiversity SEPP is overcome by the grant of development consent under Pt 4 of the EPA Act.

17. Under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP), the consent authority cannot consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if so, it is satisfied that the land is suitable (or will be suitable after remediation) for the purpose for which the proposed development is to be carried out. As there is a proposed change of use of the Site from residential to child care purposes, pursuant to s 4.6(2) of the Resilience SEPP, the consent authority must consider a report specifying the findings of a preliminary investigation of the Site carried out in accordance with the contaminated land planning guidelines. The Applicant has filed a Preliminary Environmental Site Investigation Report (PESI) prepared by LG Consult dated 22 January 2018 at Tab 13 of the Class 1 Application, which concludes at page 16 that “based on the above findings the site subject to this PESI is suitable for the proposed child care and low residential land use, consistent with a R2 Low Density Residential zoning.” The parties, and the Court, are therefore satisfied that the Site is suitable for the proposed development of centre-based child care facility.

18. Parts 1-7 of the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Child Care SEPP) were transferred into State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) as Ch 3, Pts 3.1 – 3.7. Section 3.23 of SEPP T&I provides that a consent authority must take into consideration any applicable provision of the Child Care Planning Guideline, in relation to the proposed development. The parties agree that the Proposed Development now satisfies the Design Quality Principles set out in Section 2 (pages 7‑8) of the Child Care Planning Guideline and they explain their reasons for being so satisfied in the Jurisdictional Statement from which I quote as follows:

“The parties agree that the Site is suitable for the proposed development and that:

(a) the proposed development now meets the acoustic attenuation to protect the amenity of surrounding residential properties (Principle 6, and Section 3.5 (p. 17-18) of the Child Care Planning Guideline);

(b) traffic and parking impacts of the proposed development will not adversely impact residential amenity and road safety (Principle 7, and Section 3.8 (p. 20-22) of the Child Care Planning Guideline);

(c) the proposed development provides appropriate and suitable outdoor space at both the Ground level and on Level 1 (Consideration C5, (p. 13), C11 (p. 15), C 20 (p. 17), Sections 4.9 (p. 32-34))”

19. The Site is subject to a maximum floor space ratio (FSR) development standard pursuant to cl 4.4 of the RLEP of 0.50:1m. The FSR of the Proposed Development is 0.447:1 (architectural drawings DA 02 and DA 14 Rev F).

20. Pursuant to cl 5.10 of the RLEP, the parties have considered the impact of the Proposed Development on heritage conservation. The Site is not identified on the RLEP Map as being a heritage item or within a heritage conservation area. A road described in Sch 5 of the RLEP as “Great North Road, Bedlam Point to Eastwood” is a heritage item, being Item 54. Great North Road is also known as North Road. A copy of the relevant sheet of the RLEP Heritage Map is reproduced below at Fig 1 with the Site highlighted):

Fig 1: RLEP Heritage Map with the Site highlighted relative to Heritage Item 54 Great North Road

21. The parties agree that the Proposed Development will not affect the heritage significance of Great North Road.

22. Earthworks are proposed, being excavation of more than 600mm below ground level (existing). Accordingly, development consent is required pursuant to cl 6.2(2) of the RLEP and the proposed earthworks are subject to conditions 27, 12, 32, 33, 36, 52 and 61.

23. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties in accordance with this judgment.

24. 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.

Notations:

25. The Court notes:

1. The Council of the City of Ryde, as the relevant consent authority, has agreed under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending development application No LDA2021/0445 in accordance with the following documents (the amended development application):

1. Architectural plans:

2102_DA00	Cover Page	Revision F	September 2023
2102_DA01	Site Analysis	Revision F	September 2023
2102_DA02	Site Plan	Revision F	September 2023
2102_DA03	Ground & LVL 1 Plans	Revision F	September 2023
2102_DA04	Lower Ground & Section	Revision F	September 2023
2102_DA05	Elevations	Revision F	September 2023
2102_DA06	Sections	Revision F	September 2023
2102_DA07	Kitchen Detail	Revision E	August 2023
2102_DA08	3D Views and Material Schedule	Revision F	September 2023
2102_DA09	3D Views	Revision F	September 2023
2102_DA10	Shadow Diagrams 21 June	Revision F	September 2023
2102_DA11	Shadow Diagrams 21 June	Revision F	September 2023
2102_DA12	Height Limit Study & Neighbouring Area 3D Study	Revision F	September 2023
2102_DA13	Area Calculation	Revision F	September 2023
2102_DA14	Gross Floor Area Calculation	Revision F	September 2023

2. Revision E Landscape Plan, prepared by iScape Landscape Architecture, dated 13 September 2023.

3. Noise Impact Assessment, prepared by Rodney Stevens Acoustics, dated 31 August 2023.

4. Plan of Management, prepared by Shoushan Navasardian, dated 28 May 2024.

5. Traffic Summary Report, prepared by Parking & Traffic Consultants Pty Ltd (with conclusion), dated 21 May 2024.

2. The Applicant filed the amended development application with the Court on 24 May 2024 and the Plan of Management dated 28 May 2024 on 28 May 2024.

Orders:

26. The Court orders:

1. The appeal is upheld.

2. Development Application LDA2021/0445 for the construction and operation of a part 2/part 3 level centre-based child care facility catering for up to 48 children serviced by 11 on-site car parking spaces and associated landscaping and stormwater management works, at Lot 10 DP 7159 known as 5 Aeolus Avenue, Ryde is determined by the grant of consent subject to the conditions contained in the annexure marked A.

3. The Applicant is to pay the respondent’s costs thrown away as a result of the amendment pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed in the sum of $5,000.  

E Espinosa

Commissioner of the Court

128672.23 Annexure A

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Decision last updated: 11 June 2024