Land and Environment Court New South Wales Medium Neutral Citation: Acorp Developments Pty Ltd v Council of the City of Ryde [2022] NSWLEC 1106 Hearing dates: 28 and 29 June 2021 Date of orders: 25 February 2022 Decision date: 25 February 2022 Jurisdiction: Class 1 Before: Bindon AC Decision: The Court orders: 1) The Appeal is upheld. 2) Consent is granted to Development Application No LDA2020/0035, as amended, for alterations to the basement, lower ground floor and ground floor levels of a commercial premises within a mixed use development to accommodate a 51 place child care centre, with provision for 13 car spaces, at 8 Monash Road Gladesville, subject to the conditions set out in Annexure A. 3) The Respondent is ordered to register the Development Consent on the NSW Planning Portal in accordance with s. 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of these orders. 4) The Respondent is to publish a notice of the development consent granted in relation to DA2020/0349 on its website in accordance with cl 124 of the Environmental Planning and Assessment Regulation 2000 within 14 days from the date of this order 5) The exhibits are returned, except for A, B, G, K, L, and 3. Catchwords: DEVELOPMENT APPLICATION – alterations to commercial premises to permit child care centre – simulated outdoor play space – concurrence of NSW Department of Education – whether substantial redevelopment or substantial refurbishment of existing mixed use building and application of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.20 Environmental Planning and Assessment Regulation 2000, cl 124 Cases Cited: Acorp Developments Pty Ltd v Council of the City of Ryde [2022] NSWLEC 1028 Category: Principal judgment Parties: Acorp Developments Pty Ltd (Applicant) Council of the City of Ryde (Respondent) Representation: Counsel: A Pickles SC (Applicant) F Berglund (Respondent) Solicitors: HWL Ebsworth Lawyers (Applicant) Council of the City of Ryde (Respondent) File Number(s): 2020/342039 Publication restriction: No Judgment 1. COMMISSIONER: On 7 February 2022, I handed down my reasons in the Class 1 appeal Acorp Developments Pty Ltd v Council of the City of Ryde [2022] NSWLEC 1028 (Principal Judgment) and indicated that upon satisfaction of certain directions, I foreshadowed granting consent, subject to conditions. 2. The Principal Judgment included at par [153] the following directions: 1. "The Council of the City of Ryde is to lodge a revised set of Draft Conditions of Consent, in Word format, amended in accordance with the findings of this judgment within 10 working days of the date of these directions, and including amending the Table to Condition 2 in Part 2 of Council's Draft Conditions as set out in Direction (2) below. 2. The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of the Council of the City of Ryde as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending the development application No. LDA2020/0035 filed with the Court on 2 December 2020 by the addition of the following documents: Document Description Date Plan No/Reference Compliance Table 25.05.2021 Baini Design, Drawing No. 00, Project No. 20027, Rev D Site Plan 25.05.2021 Baini Design, Drawing No. 01, Project No. 20027, Rev D Basement Plan 25.05.2021 Baini Design, Drawing No. 02, Project No. 20027, Rev D Lower Ground Floor Plan 29.06.21 Baini Design, Drawing No. 03, Project No. 20027, Rev E Ground Floor Plan 29.06.21 Baini Design, Drawing No. 04, Project No. 20027, Rev E Evacuation Path Plan 29.06.21 Baini Design, Project No. 20027, Rev E Elevations 25.05.2021 Baini Design, Drawing No. 05, Project No. 20027, Rev D Elevations 25.05.2021 Baini Design, Drawing No. 06, Project No. 20027, Rev D Sections 25.05.2021 Baini Design, Drawing No. 07, Project No. 20027, Rev D Sections 25.05.2021 Baini Design, Drawing No. 08, Project No. 20027, Rev D Callout Elevations 25.05.2021 Baini Design, Drawing No. 09, Project No. 20027, Rev D Nappy Change Detail 25.05.2021 Baini Design, Drawing No. 10, Project No. 20027, Rev D Bottle + Craft Bench Detail 25.05.2021 Baini Design, Drawing No. 11, Project No. 20027, Rev D Kitchen + Laundry Details 25.05.2021 Baini Design, Drawing No. 12, Project No. 20027, Rev D Calculation Plan 25.05.2021 Baini Design, Drawing No. 13, Project No. 20027, Rev D Indoor Play Area Diagrams 25.05.2021 Baini Design, Drawing No. 14, Project No. 20027, Rev D 0-2 Outdoor Play Area 25.05.2021 Baini Design, Drawing No. 15, Project No. 20027, Rev D South Western Outdoor Play Area 25.05.2021 Baini Design, Drawing No. 16, Project No. 20027, Rev D Natural Ventilation Diagrams 25.05.2021 Baini Design, Drawing No. 17, Project No. 20027, Rev D Outdoor Area Calculations 25.05.2021 Baini Design, Drawing No. 18, Project No. 20027, Rev D Ground Floor C.O.S Calculation 25.05.2021 Baini Design, Drawing No. 20, Project No. 20027, Rev D Lower Ground Childcare Centre + Common Outdoor Area Landscape Concept 25.05.2021 Outside in Design Group, Drawing Number: L-01, Issue H Ground Floor Childcare Centre + Common Outdoor Area Landscape Concept 25.05.2021 Outside in Design Group, Drawing Number: L-02, Issue H Sections + Elevations 25.05.2021 Outside in Design Group, Drawing Number: L-03, Issue H Sections + Elevations 25.05.2021 Outside in Design Group, Drawing Number: L-04, Issue H Balcony Planters Landscape Plan 25.05.2021 Outside In Design Group, Drawing Number L-05 Issue H Balcony Planters Section FF 25.05.2021 Outside In Design Group, Drawing Number L-06 Issue H Access 2019 Indicative Compliance Assessment Report 03.06.2020 Building Innovations Australia, Report No. PRO-04511-D1W4, Issue v1.1 Fire Engineering Advice 02.07.2021 BCA Innovations Waste Management Plan 06.01.2020 Baini Design Pre-Construction (Detailed Design) Road Safety Audit 28.05.2020 TTPP Transport Planning, Ref No. 17367, V01 Plan of Management 09.07.2021 Early Education Solutions, Version 6 Acoustic Report 21.06.2021 The Acoustic Group 1. The respondent, the Council of the City of Ryde, is to lodge the amendment of the development application on the NSW planning portal within 7 days of the date of this direction and notify the Applicant after it has been lodged. 2. The Applicant is to file a copy of the amended development application within 7 days after the respondent has notified the Applicant that the amendment has been lodged on the NSW planning portal. 3. In the event the respondent is unable to lodge the amended application on the NSW planning portal as directed in (3) above, the respondent is to notify the Court via Online Court as soon as possible but no later than 14 days after the date of the direction and request for the matter to be relisted for further directions." 1. On 10 February 2022 the Council provided to the Court a copy of a revised set of draft conditions in accordance with Directions 1) and 2) of the Principal Judgement. I have reviewed those conditions and find they are consistent with my findings in the Principal Judgement. 2. On 16 February 2022, the Council advised the Court that it was having difficulties in uploading the amended application to the NSW planning portal and, pursuant to Direction 5) sought further directions. On 21 February 2022 the matter was relisted before me for a mention. Following discussions regarding the amended application documentation and the process for uploading the amended application, I made further directions, as follows: "1. The Applicant, by close of business today (21/02/22) is to: a) Upload to the NSW Planning Portal the amended DA documentation referred to in para 153(2) of my judgment handed down 7 February 2022; and b) File an electronic copy of that amended DA documentation with the court; and c) Provide an electronic copy of that amended DA documentation to the Respondent. 2. The Council, by close of business tomorrow (22/02/22), is to advise the Applicant if it requires hard copies of any of the amended DA documentation. 3. The Applicant, by close of business on Wednesday 23/02/22, is to provide the Council with the hard copies requested in accordance with Direction 2." 1. Later on 21 February 2022, the Applicant advised the Court that the documents comprising the amended application were uploaded to the NSW planning portal that day, and provided screenshots evidencing the upload of the documentation to the portal and correspondence to the Respondent providing the screenshots and documentation. A hard copy of the amended application was filed with the court on 22 February 2022, as agreed with the Court, following the Applicant's advice that the documents were too large to file electronically via the Court's Online Registry. 2. On 23 February 2022 the Applicant advised the Court that Council had not advised the Applicant that it required a hard copy of any of the amended application documents. 3. I am therefore satisfied that my directions in the Principal Judgement and as amended by my subsequent directions on 21 February 2022 have been complied with, and I now make the following orders and thereby dispose of the matter. Orders 1. The Court makes the following orders: 1. The Appeal is upheld. 2. Consent is granted to Development Application No LDA2020/0035, as amended, for alterations to the basement, lower ground floor and ground floor levels of a commercial premises within a mixed use development to accommodate a 51 place child care centre, with provision for 13 car spaces at 8 Monash Road Gladesville, subject to the conditions set out in Annexure A. 3. The Respondent is ordered to register the Development Consent on the NSW Planning Portal in accordance with s. 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of these orders. 4. The Respondent is to publish a notice of the development consent granted in relation to DA2020/0349 on its website in accordance with cl 124 of the Environmental Planning and Assessment Regulation 2000 within 14 days from the date of this order 5. The exhibits are returned, except for A, B, G, K, L, and 3. ……………………………….. J Bindon Acting Commissioner of the Court Annexure A (293972, 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: 25 February 2022