Land and Environment Court New South Wales Medium Neutral Citation: Aplus Architecture Pty Ltd v Council of the City of Ryde [2022] NSWLEC 1047 Hearing dates: Conciliation conference on 20 January 2022 Date of orders: 2 February 2022 Decision date: 02 February 2022 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Development application no. LDA2021/0146 for the amalgamation of Lot 1 in DP833060 and Lot 4 in DP27145, the staged demolition of existing buildings, the construction, in three stages, of a shop premises and two commercial buildings (with ground floor retail and basement parking) and associated works at 45-47 Epping Road, Macquarie Park, is approved subject to the conditions set out in Annexure "A". Catchwords: DEVELOPMENT APPEAL – conciliation conference – mixed use development – amalgamation of land – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.7, 4.15, 4.16, 8.7, 8.15Land and Environment Court Act 1979, s 34Roads Act 1993, s 138 Ryde Local Environmental Plan 2014, cll 4.3, 4.4, 4.5B, 5.21, 6.2, 6.4, 6.6, 6.9 State Environmental Planning Policy (Infrastructure) 2007, cl 101 State Environmental Planning Policy No 55 – Remediation of Land, cl 7 State Environmental Planning policy (State and Regional Development) 2011 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Water Management Act 2000 Texts Cited: Ryde Development Control Plan 2014 Category: Principal judgment Parties: Aplus Architecture Pty Ltd ACN 139 354 233 (Applicant) Council of the City of Ryde (Respondent) Representation: Counsel: J Reid (Applicant) M Chillari (Solicitor) (Respondent) Solicitors: King and Wood Mallesons (Applicant) Council of the City of Ryde (Respondent) File Number(s): 2021/195421 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 deemed refusal of a development application; Development Application Council reference LDA2021/0146 seeking consent for the amalgamation of Lot 1 DP 833060 and Lot 4 DP 27145, the demolition of existing structures, and the construction of a mixed use development comprising of a café premises and 2 commercial buildings (without ground floor retail and basement parking), (the Proposed Development), at 45 - 47 Epping Road, Macquarie Park (the Site). The Proposed Development will be in 3 stages as follows: 1. Stage 1: construction of Building A capable of use as a shop premises at the centre of the south-western frontage of the Site, which is to provide a total Gross Floor Area (GFA) of 80m2; 2. Stage 2: demolition of existing structures which currently occupy the north-western part of the Site (47 Epping Road, MACQUARIE PARK), and construction of a new 9 storey commercial building, Building B which is to provide a total GFA of 11,069m2; 1. Works over 45 Epping Road, Macquarie Park to facilitate vehicular access from Wicks Road Macquarie Park; 1. Stage 3: demolition of existing structures currently occupying the south-eastern part of the Site (45 Epping Road Macquarie Park), and construction of a new 6 storey commercial building, Building C which is to provide a total GFA of 5,067m2 1. The matter was listed for hearing on 19 January 2022 and the parties informed the Court that all contentions listed in the Statement of Facts and Contentions filed by the Respondent on 19 August 2021 have been resolved by the amended plans listed in Schedule A to the Notice of Motion filed 5 November 2021 for which leave was granted, by consent of the Respondent, on 11 November 2021. The parties have been negotiating conditions of consent and sought for the matter to be listed for conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 20 January 2022. I have presided over the conciliation conference. 3. 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. 4. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 5. 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 to be as set out in an agreed statement on jurisdictional prerequisites. The parties explained how the jurisdictional prerequisites have been satisfied and I summarise this explanation below. 6. The owner of the Site is Total Forms Pty Limited and owner's consent to lodge the development application was submitted to the Council and is at Tab 2 of the Class 1 application filed on 8 July 2021. 7. The Proposed Development was notified in accordance with Council's notification policy from 12 May 2021 to 12 June 2021. One submission was received which raised issues of overshadowing impacts, traffic impacts, and lack of core infrastructure services to support another development of this scale. Clarification was sought regarding retail element in terms of use and operation times and structural impact from basement car park. 8. The Proposed Development was amended in November 2021 and was not required to be re-notified, as the relevant officer of the Respondent formed the opinion that the environmental impact of the amendments will be the same or lesser than the original proposal, and that the impact on the owners and occupiers of adjoining land will not be detrimentally affected in any manner. 9. The Proposed Development cost is greater than the $30,000,000 threshold value and is therefore regionally significant development pursuant to Schedule 7 of State Environmental Planning policy (State and Regional Development) 2011 and accordingly, the original consent authority was the Sydney North Planning Panel pursuant to s 4.7 of the EPA Act. Notice of these proceedings was given to the Sydney North Planning Panel pursuant to s 8.15(4) of the EPA Act and Council enters into the s34 agreement under the direction of the Sydney North Planning Panel. 10. The Statement of Facts and Contentions filed by the Respondent on 19 August 2021 refers to the relevant environmental planning instruments which specify jurisdictional prerequisites, and these are addressed below. 11. Pursuant to the Ryde Local Environmental Plan 2014 (RLEP) the Site is zoned B7 – Business Park where commercial and retail uses are permissible. 12. Clause 6.9 of the RLEP applies to development in the Macquarie Park Corridor, and permits development which exceeds the maximum building height and floor space ratio (FSR) development standards to the extent shown on the incentive maps provided that the consent authority is satisfied that the matters in cl 6.9(3) are complied with. 13. A Planning Agreement was entered into by the Applicant and the Council under s 7.4 of the EPA Act on 19 November 2020 to provide for monetary contributions and works in kind to contribute to public infrastructure to enable the developer to utilise the additional building height incentive of 45m and additional FSR incentive of up to 2:1. The applicant further agrees to enter into a variation to the planning agreement as set out in the deferred commencement condition, to dedicate land as road reserve to the Council to regularise a public footpath that was built on the Site. The parties agree that the allocation of funds and works in kind meet the requirements of cl 6.9(3) of the RLEP. 14. The maximum height of building of the Proposed Development is RL92.5 (or 40.9m) which is below the maximum height of 45m as shown on drawing A4.07. Clause 4.3 of the RLEP nominates a maximum building height of 22m whereas the Site is located within the Macquarie Park Corridor Precinct Maps in the RLEP, and the Proposed Development relies upon the incentive provisions of cl 6.9 of the RLEP relating to development in the Macquarie Park Corridor which enables a maximum height of 45 metres. 15. Similarly, the Proposed Development provides an FSR of 2:1 and relies upon the incentive provisions of cl 6.9 which enables a maximum FSR of 2:1. Clause 4.4 of the RLEP provides in effect that the Floor Space Ratio that would apply but for the Site being within the Macquarie Park Corridor, is 1:1. 16. Clause 4.5B of the RLEP applies to the B7 zone and provides that development consent must not be granted for the erection of a building on the Site for the purpose of a function centre, neighbourhood shop, registered club, restaurant or café unless the total floor space of the building will not exceed 500m2 for each individual land use or an area equivalent to 5% of the site area for each individual land use. The proposed Building A shop premises has a floor space of 80m2 and therefore meets the requirements of cl 4.5B(4). 17. Clause 6.2 of the RLEP relates to earthworks and the matters in cl 6.2(3) are required to be satisfied. The parties agree that the basement excavation and earthworks will not result in any adverse impacts on environmental functions and processes and neighbouring uses. The proposed cut and fill will not adversely impact the amenity of neighbouring properties such that the Court could be satisfied of the matters in cl 6.2(3) of the RLEP. 18. Clause 5.21 of the RLEP relates to flood planning and applies to the Site as the Site is mapped as being subject to overland flow on the Council's flooding map, and is identified as being Medium Risk in relation to flooding. The conditions of consent include conditions to ensure that the overland flow is not disrupted and that buildings are located on the Site so as not to adversely affect flood behaviour. The parties agree that the flood assessment addresses the matters in cl 5.21(3) and the Proposed Development meets the requirements of cl 5.21(2) as it: 1. is compatible with the flood function and behaviour on the land, and 2. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and 3. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and 4. incorporates appropriate measures to manage risk to life in the event of a flood, and 5. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of riverbanks or watercourses. 1. Stormwater management is addressed in cl 6.4 of the RLEP and the provisions seek to minimise the impacts of urban stormwater. The parties agree that for the purposes of cl 6.4(3) the proposal: 1. is designed to maximise the use of water permeable surfaces on the land, having regard to the soil characteristics affecting on-site infiltration of water, and 2. includes, if practicable, on-site stormwater retention for use as an alternative supply to main water, groundwater or river water, and 3. avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises, and mitigates the impact. 1. In relation to environmental sustainability, cl 6.6 of the RLEP applies to the Site. The Proposed Development includes an ecologically sustainable development report prepared by Credwell dated 16 April 2021 which identifies the environmentally sustainable design (ESD) measures incorporated into the Proposed Development which has regard to the matters which are required to be considered in cl 6.6(2) of the RLEP. 2. The State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) contains jurisdictional prerequisites relevant to the Proposed Development. The Proposed Development was originally referred to Transport for NSW as access was proposed off an arterial (classified) road. Access was amended as part of the amended Proposed Development so that access is now via the local road network. Accordingly, concurrence under cl 101 was not required. 3. Transport for NSW granted concurrence to the proposed civil works on Epping Road pursuant to s 138 of the Roads Act 1993. Conditions 41-47 incorporate conditions recommended by Transport NSW. 4. The Proposed Development was lodged as integrated development as dewatering of the Site is required and the provisions of the Water Management Act 2000 are applicable. General Terms of Approval (GTA) were provided by Water NSW on 13 October 2021 for a water supply work. Conditions 48-58 have been imposed consistent with the GTA. 5. Clause 7(1) of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) provides that a consent authority must not consent to the carrying out of any development on land unless— (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. 1. The parties have referred the Court to the Statement of Environmental Effects, the Preliminary Investigation Report and proposed conditions 29-31 as satisfaction of the requirements of cl 7(1) of SEPP 55. 2. The parties agree that the Site is suitable in its current state for commercial development in its present form and cl 7(2) of SEPP 55 does not apply. 3. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 is a deemed SEPP and applies to the whole of the Ryde Local Government Area. Given the nature of the project and location of the site there are no specific controls which apply to the Proposed Development. 4. The parties agree that the Ryde Development Control Plan 2014 (DCP) controls have been adequately considered in the assessment of the Proposed Development and the conditions of consent. 5. The parties agree that the Amended Development Application can be approved taking into consideration the matters in s 4.15(1)(b) – (e) of the EPA Act including the public interest. 6. 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 as I have set out in this judgment. 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. The Court notes that the amended plans filed with the Court on 5 November 2021 with the Affidavit of Clarissa Sukkar, were uploaded onto the NSW Planning Portal on 18 November 2021 and evidence of such uploading was filed with the Court on 19 November 2021. 9. The Court orders: 1. The appeal is upheld. 2. Development application no. LDA2021/0146 for the amalgamation of Lot 1 in DP833060 and Lot 4 in DP27145, the staged demolition of existing buildings, the construction, in three stages, of a shop premises and two commercial buildings (with ground floor retail and basement parking) and associated works at 45-47 Epping Road, Macquarie Park, is approved subject to the conditions set out in Annexure "A". ………………………. E Espinosa Commissioner of the Court Annexure A (1001459, pdf) Plans_Part1 (9339082, pdf) Plans_Part2 (18496447, pdf) Plans_Part3 (17881779, pdf) Plans_Part4 (19075679, pdf) Plans_Part5 (20773497, pdf) Plans_Part6 (18382902, pdf) Plans_Part7 (20819378, pdf) Plans_Part8 (7575818, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 February 2022