Morgage House v Ryde City Council [2004] NSWLEC 326

Land and Environment Court of New South Wales

CITATION : Morgage House v Ryde City Council [2004] NSWLEC 326 Respondent: Ryde City Council PARTIES : Applicant: Mortgage House Developments Pty Ltd

FILE NUMBER(S) : 10309 of 2004 CORAM: Roseth SC KEY ISSUES: Development Application :- Court-appointed planning expert LEGISLATION CITED: CASES CITED: DATES OF HEARING: 24/06/2004 DATE OF JUDGMENT: 06/25/2004

Mr D Parry, barrister LEGAL REPRESENTATIVES: Mr R Graham, solicitor

JUDGMENT: - 3 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC

25 June 2004

10309 of 2004 Mortgage House Developments Pty Ltd v Ryde City Council

JUDGMENT 1 SENIOR COMMISSIONER: This is an appeal against the deemed refusal by Ryde City Council (the council) of a development application to demolish the existing buildings and erect a three-storey residential flat building on part lots 12-14 DP 6046, known as 208-212 Blaxland Road Ryde. 2 The council's Statement of Issues contained 16 issues. The parties agreed to the Court's appointment of a town-planning expert, Mr P Walsh. Mr Walsh investigated the issues and discussed them with the parties. As a result he resolved four issues by imposing conditions on the consent, and four issues by seeking an amendment of the proposal. This left eight issues, of which two were duplications, leaving in effect seven issues. 3 The first issue was the proposal's non-compliance with the 12m setback from Blaxland Road required by the Ryde Planning Scheme Ordinance. The applicant lodged an Objection under State Environmental Planning Policy 1. Mr Walsh supported the Objection. There was no contrary opinion from the council. I accept his opinion. 4 The second issue was the width of two parking spaces. The council requires 3m widths; however, Mr Walsh did not think this was justified. The car space satisfies the Australian Standard. I accept Mr Walsh's evidence. 5 The third issue was whether the proposal was compatible with its surrounding. Mr Walsh thought it was. There was no contrary view. Having seen the site, I share Mr Walsh's opinion. 6 The fourth issue was the amount of landscaped area. Mr Walsh thought the council's requirement was met. There was no contrary view. I accept his opinion. 7 The fifth issue was the assessment of the apartment building under State Environmental Planning Policy 65. Mr Walsh provided an assessment, saying that the proposal performed well and that 80% of the apartments receive at least 3 hours of sunlight. 8 The sixth issue was the objectors' concerns. The Court received one letter of objection relating to concerns about stormwater and parking. In the council's opinion, both these concerns are satisfied. 9 The seventh issue was the height above natural ground level of the basement carpark. At one point the carpark exceeds the maximum permitted, 750mm. According to Mr Walsh, this had no impact. 10 Given Mr Walsh's evidence, the absence of an opposing view and my own opinion that the proposal is well-designed, the appeal is upheld.