Land and Environment Court New South Wales Medium Neutral Citation: Acorp Developments Pty Limited v City of Ryde Council [2016] NSWLEC 1650 Hearing dates: 8,9 December 2016 Date of orders: 09 December 2016 Decision date: 09 December 2016 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. Development Application No. LDA 2015/0308 for the demolition of all existing buildings and the construction of a mixed-use development consisting of 920 sq m of commercial floor space, and 42 residential apartments at 6A to 6C Monash Road, Gladesville is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1 and C. Catchwords: DEVELOPMENT APPLICATION: demolition of all existing buildings and the construction of a mixed-use development - future access arrangements - potential isolation - impact on the Key Site Diagram Legislation Cited: Environmental Planning and Assessment Act 1979 Ryde Local Environmental Plan 2014 Category: Principal judgment Parties: Acorp Developments Pty Limited (Applicant) City of Ryde Council (Respondent) Representation: Counsel: Mr M Staunton, barrister (Applicant) Ms F Burgland, barrister (Respondent) Solicitors: HWL Ebsworth Lawyers (Applicant) City of Ryde Council (Respondent) File Number(s): 159640/2016 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application No. LDA 2015/0308 for the demolition of all existing buildings and the construction of a mixed-use development consisting of 920 sq m of commercial floor space, and 42 residential apartments at 6A to 6C Monash Road, Gladesville (the site). 2. The council filed an Amended Statement of Facts and Contentions that identified the following matters that warrant the refusal of the application. 1. non-compliance with the Design Quality Principles in Sch 1 of SEPP65; 2. non-compliance with the Key Site Diagram for the precinct in DCP 2014; 3. non-compliance with LEP development standards in relation to height and FSR; 4. unacceptable impact on a nearby heritage item; 5. unacceptable collection and disposal of waste; 6. unacceptable disposal of stormwater and potential flooding, and 7. unacceptable traffic generation and access. 1. The applicant prepared amended plans that sought to address the contentions raised by the council. This result in a joint report from the following experts. 1. Ms Gabrielle Morrish, urban designer for the respondent 2. Mr Sanju Reddy, planner for the respondent; t 3. Mr Daniel Pearse, traffic expert for the respondent; 4. Mr Alan Cadogan, urban designer for the applicant; 5. Mr Andrew Martin, town planner for the applicant, and 6. Mr Hayden Calvey, traffic expert for the applicant. 1. Within their areas of expertise, the experts acknowledged that the amended plan addresses and satisfies the contentions raised by the council in relation to all merit issues raised. While the council raised no issue with the merits of the application, they raised peripheral issues in relation to 1. future access arrangements, 2. the potential isolation of sites within the precinct, and 3. the impact on the Key Site Diagram in DCP 2014. The site 1. The site is Lot 1 in DP541209, Lot 11 in DP8446096 and Lots 101 and 102 in DP855163, and comprises four separate lots that will be amalgamated under the current application. The total area of the site is 2090 sq m. The frontage to Monash Road is 23.5 m, and the depth to the rear boundary is 66.5 m. The site slopes to the rear, with a fall of four 4 m over a distance of 66.9 m. The site forms an L-shape as the result of the inclusion of 6A Monash Road. 2. The site currently contains three dwellings, an electrical warehouse workshop, pool shop and sheds. A single‑storey dwelling house fronting Monash Street is located at 8 Monash Road. Two-storey dwellings are located on 6B and 6C Monash Road, with access handles off this street. 3. The site is within the Monash Road Precinct in Gladesville town centre and is located approximately 70 m north of the Victoria Road and Monash Road intersection. On the eastern side of Monash Road is the recently constructed mixed-use development at 1 - 9 Monash Road, with retail on the ground-floor level, with uses such as coffee shop and Aldi supermarkets. Apartments are located on the floors above. Relevant planning controls 1. The site is within Zone B4 Mixed Use under Ryde Local Environmental Plan 2014 (LEP 2014). The proposed use is permissible with consent in this zone. 2. Ryde Development Control Plan 2014 (DCP 2014) applies to the site. The site falls within pt 4.6 Gladesville Town Centre and Victoria Road Corridor. 3. State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the site, and specifically the contents of the Apartment Design Guide (ADG). Access arrangements 1. The access issue relates to the need to acquire an easement over other land without owner's consent. The plans lodged with the council originally included this land for access (Exhibit A). During the hearing, leave was granted to amend the application (Exhibit C) to exclude this land, but subject to a deferred commencement condition that required a Right of Way over the land to be obtained prior to the activation of the consent. 2. While the terms of the deferred commencement condition were accepted by the council, and that it could legally be achieved, the approach was not accepted by the council on the basis that it was uncertain whether the easement would be granted under either s 88K of the Conveyancing Act 1919 or s 40 of the Land and Environment Court Act 1979. 3. In response, I am satisfied the approach adopted by the applicant is acceptable in the circumstances for a number of reasons. First, the owners have not unequivocally denied that an easement could be granted in the future; second, DCP 2014 appropriately anticipates some form of rear access to the site, fronting Monash Road, and thirdly, the authorities provided by Mr Staunton for the applicant clearly provide a warrant for such an approach. 4. I also accept the applicant's submission that the deferred commencement condition should have a time limit of 24 months rather than the 18 months proposed by the council. Isolation of sites within the precinct 1. The matter of the isolation of sites within the precinct and the negotiations with the owners of the properties at 2, 4 and 6 Monash Road is set out in some detail in Tab 7 of Exhibit 3, and I am satisfied that all reasonable attempts have been made to consolidate the sites in a single development site based on the correspondence provided in Exhibit 3. Based on the correspondence provided, and the comments in the following paragraphs, the inability to include 2, 4 and 6 Monash Road into a single development site would not be a reason to refuse the application. The Key Site Diagram 1. The question of whether the integrity of the Key Site Diagram was maintained was addressed by the experts, where they made the following comments in their joint report. A. Experts agree that the proposed amended key site diagram, dated 2 December 2016, has been provided (Appendix A to this report) and is acceptable. B. Experts agree that the amended key site diagram demonstrates that it delivers a superior design outcome in comparison with the existing key site diagram in the DCP, given the actual amalgamation pattern. C. Experts agree that the amended key site diagram ensures that overshadowing and overlooking are appropriately managed. Experts agree that to achieve the key site diagram in the DCP that all three adjacent properties, known as 2, 4 and 6 Monash Road, would need to be amalgamated with the subject site. Experts agree that information was tabled at the joint conference that shows that adequate information has been provided to demonstrate that reasonable attempts have been made to amalgamate the sight. Annexure B to the joint report shows how 2 to 6 Monash Road can be amalgamated. Experts note that the amended key site diagram is not dependent on the amalgamation of these three sites within the subject site. 1. With an understanding of the Key Site Diagram and the proposed development, I concur with the experts' conclusions. 2. The Court also heard from owners of properties adjoining the site. Their concerns have been addressed in the preceding paragraphs, with the exception of the concern of the owner of 6 Monash Road, where the concerns related to the loss of sunlight to ground-floor windows. This issue was addressed by the experts, where they stated: Experts note that based on the available survey information, the windows in contention are likely to be located in the rear portion of the commercial tenancy, and that there is an existing set-back to the windows from the side boundary. This set-back is estimated to be in the order of 900 millimetres. Given the commercial use and this arrangement, and that this arrangement was established as part of the original construction of the building, the existing set-back is acceptable. Experts not that the new the key site diagram provides the potential for 6 Monash Road to develop to the same building depth as the subject site. Beyond that point, a six-metre set-back is provided to the new commercial tenancy, and this is reasonable. 1. I concur with the conclusions of the experts on this matter. For the reasons set out earlier in the judgment, there is no reason why development consent cannot be granted. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. LDA 2015/0308 for the demolition of all existing buildings and the construction of a mixed-use development consisting of 920 sq m of commercial floor space, and 42 residential apartments at 6A to 6C Monash Road, Gladesville is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1 and C. ___________ G Brown Commissioner of the Court 159640.16 Brown (C)2 (256 KB, 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: 23 January 2017