Concorde Enterprises Pty Limited v Council of the City of Ryde [2016] NSWLEC 1308

Land and Environment Court New South Wales

Medium Neutral Citation: Concorde Enterprises Pty Limited v Council of the City of Ryde [2016] NSWLEC 1308 Hearing dates: 22 July 2016 Date of orders: 26 July 2016 Decision date: 26 July 2016 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. By consent, the appeal is upheld. 2. Development Application No. LDA/2014/0541 for construction of a six storey mixed use boarding house development containing a boarding house and office/commercial use with associated basement parking at 17-21 Ryedale Road, West Ryde is approved subject to the conditions in Annexure 'A'. 3. The exhibits, other than exhibits 1, 4 and D, are returned. Catchwords: DEVELOPMENT APPLICATION: consent orders; objectors; boarding house. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Concorde Enterprises Pty Limited (Applicant) Council of the City of Ryde (Respondent) Representation: Counsel: Mr John Cole solicitor (Applicant) Mr Paul Kapetas solicitor (Respondent) Solicitors: HWL Ebsworth Lawyers (Applicant) Council of the City of Ryde (Respondent) File Number(s): 2016/158927

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. LDA/2014/0541 for construction of a six storey mixed use development containing a boarding house and office/commercial use with associated basement parking (the proposal) at 17-21 Ryedale Road, West Ryde (the site) by City of Ryde Council (the Council). 2. The appeal was subject to mandatory conciliation on 14 December 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 7 April 2016, pursuant to s 34(4) of the LEC Act. 3. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 5 May 2016 for the applicant to rely on the amended proposal. Prior to the hearing, the parties agreed to enter into consent orders on the basis of the amended proposal. 4. The Court's Practice Note – Class 1 Development Appeals (paragraphs 47-49) provides: Applications for final orders by consent of parties 47. If the parties settle the dispute and its resolution does require the Court to make orders, it will be necessary for the Court to determine the residential development appeal application rather than filing terms of agreement with the Court registry. The parties are to exercise the liberty to restore the proceedings before the Court and request that the application for final orders by consent be listed for determination by the Court. 48. The parties are to file the proposed consent orders signed by all parties before the date fixed for hearing the application for final orders by consent. 49. At the hearing, the parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 1. Objectors to the proposal were invited by letter, dated 11 July 2016 (exhibit 2, f 482), to attend the hearing and give evidence and were provided with a copy of the proposed conditions of consent. Three objectors provided evidence on-site at the commencement of the hearing and their objections to the proposal can be summarised as: * The proposal will further exacerbate the lack of parking around the railway station; * The proposal does not provide enough parking on-site; * The occupant of the adjoining property will not be able to turn his car into the rear of his property from the laneway, as the proposal extends to the rear boundary and parked cars on the opposite side of the laneway will mean there is insufficient room to turn a car. 1. The Council submits that the objections raised by the resident objectors regarding the original proposal have been addressed by the amendments made to the proposal following the conciliation conference or are issues that relate to the right of way over privately owned properties at the rear of the site and the proposal does not include any works to the right of way.