Aragats Pty Ltd V City of Ryde Council

Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline (September 2021)

Category: Principal judgment

Parties: Aragats Pty Ltd (Applicant)
City of Ryde Council (Respondent)

Representation: Counsel:
E Fleming (Solicitor)(Applicant)
L McDonald (Solicitor)(Respondent)
Solicitors:
Macpherson Kelley (Applicant)
City of Ryde Council (Respondent)

File Number(s): 2025/276024

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by Aragats Pty Ltd (the Applicant) against the refusal of development application LDA2024/0152, lodged with the City of Ryde Council (the Respondent), on 1 August 2024. The respondent issued a notice of refusal on 24 January 2025.

2. The development application seeks development consent for the demolition of existing structures, tree removal and construction of a two-storey child care centre for 87 children with basement car parking and identification signage at 62 Agincourt Road, Marsfield, NSW, 2122 (the Site). The proposed development is on land legally identified as Lot 30 within Deposited Plan 8787.

3. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the of the Land and Environment Court Act 1979 (NSW) (the LEC Act). The conciliation conference was held on 31 October 2025.

4. At the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant development consent to the development application subject to agreed outcomes and conditions.

5. The agreement reached by the parties was based on amended plans and additional material that resolved the contentions before the Court. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. As the presiding Commissioner, I am satisfied that the decision to grant development consent is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following:

8. Pursuant to the Ryde Local Environmental Plan 2010 (RLEP), the subject site is zoned R2 Low Density Residential. Centre-based child care facilities are permissible in this zone. Regard has been given to the R2 zone objectives in determining the application.

9. Pursuant to cl 4.3 of the RLEP, the maximum building height permissible for the site is 9.5m. No part of the development exceeds the 9.5m limit.

10. Pursuant to cl 4.4 of the RLEP, the Floor Space Ratio (FSR) for the site is 0.5:1. The parties agree that the gross floor area of the building is acceptable. The applicant says that the FSR is acceptable because it complies with the FSR development standard. The Council says that the FSR is non-compliant but supports the written cl 4.6 submission that has been submitted for abundant caution.

11. The parties nevertheless arrive at the same point, the development is acceptable in terms of the proposed floor area. They also agree, that should it be required, the cl 4.6 written request provides the justification required to support the variation to the development standard. I do not need to determine the correct path, merely that the required matters have been dealt with in either path. I agree with the parties that this has been done.

12. The parties agree that cl 5.10 of the RLEP does not apply to the Site as the Site is not identified as a heritage item and is not located within a heritage conservation area. They note that there are local heritage items located within the broader vicinity of the Site. They agree that the local heritage items are sufficiently separated from the development site and that existing road networks and buildings provide a buffer. As such, the heritage curtilage of the local heritage items will be unaffected by the proposal.

13. Pursuant to cl 6.2 ‘Earthworks’, the consent authority is required to be satisfied that the matters outlined in the clause have been considered. The amended DA is accompanied by a Geotechnical Investigation Report which addresses the matters in cl 6.2(3).

14. The proposed development will not adversely affect or disrupt drainage and flood patterns, flood storage or soil stability in the area. The proposed excavation is consistent with the Site’s context and is in accordance with the Respondent’s current and proposed planning strategies. It is considered unlikely that excavation will lead to the disturbance of relics as the Site is not known to be situated within an area of archaeological significance, and the earthworks are unlikely to impact on any watercourse, drinking water catchment or environmentally sensitive areas due to the location of the Site.

15. Any impact from the development, including in relation to the considerations listed above, can be appropriately minimised and mitigated by conditions of consent. Where appropriate, such minimisation and mitigation measures have been implemented in the Agreed Conditions.

16. The parties are satisfied, based on Engineering Plans, that adequate arrangements have been made to make stormwater drainage and onsite conservation available for the development when required. The proposed development incorporates Water Sensitive Urban Design (WSUD) principles that seek to minimise and manage the impact of stormwater on site and within the area and addresses the unique characteristics of the site and will allow for the efficient management of stormwater. I am satisfied that the requirements of cl 6.2 have been appropriately considered.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

1. The site is located within the Sydney Harbour Catchment pursuant to Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP). The parties have undertaken the required assessments in respect to the proposed development including preparing and assessing the following documentation:

(a) The Statement of Environmental Effects (SEE). (b) Engineering Plans prepared by SDS Engineering on 18 March 2024 which includes WSUD requirements.

2. The parties agree that the assessments demonstrate that the proposed development is satisfactory, particularly in respect to ss 6.7, 6.8, 6.9 and 6.10 of the BC SEPP. I agree that the required matters have been considered.

State Environmental Planning Policy (Transport and Infrastructure) 2021

1. Chapter 2 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) provides a consistent planning regime for infrastructure and the provision of services across the State, along with providing for consultation with relevant public authorities during the assessment process.
2. Section 3.23 of the TI SEPP requires a consent authority to consider the Child Care Planning Guideline (the Guideline) when determining a development application. The matters for consideration under the Guideline have been addressed in the SEE which provides an assessment of these matters.
3. Section 3.26 of the TI SEPP sets out non-discretionary development standards for the purpose of s 4.15 of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, regs 107 or 108 of the Education and Care Services National Regulations provides the requirements for indoor or outdoor space. The proposed development, as demonstrated by amended Architectural Plans - Drawing No. A000, provides the required unencumbered indoor play space and unencumbered outdoor play space consistent with the requirements of the Education and Care Service National Regulations.
4. The parties agree that the matters for consideration under the Guideline have been addressed in the SEE which includes how the proposal complies with the Guideline. The parties also agree, and I am satisfied, that the required matters in the TI SEPP have been assessed and that the proposal is satisfactory in this regard.

State Environmental Planning Policy (Resilience and Hazards) 2021

1. Chapter 4 (Remediation of Land) of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) also applies to the Site. Section 4.6 requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.
2. The DA was accompanied by a Preliminary Site Investigation Report prepared by Sydney Environmental Group dated 15 April 2024 (the PSI). This report confirms that the Site can be made suitable for the proposed redevelopment and the sensitive land use provided that the following recommendations in the PSI are implemented:

(a) A Remedial Action Plan (RAP) to be prepared by a suitably qualified environmental consultant detailing the steps required to remediate the identified ecological zinc impacts within the site to a level suitable for the continued land use setting. (b) The preparation of a waste classifications for any material to be excavated and disposed of off-site. The waste classifications must be prepared in accordance with EPA guidelines. (c) All waste must be managed and disposed of in accordance with current guidelines and regulations.

3. The parties agree that the conditions 1, 42, and 45 ensure that the above recommendations are implemented. I am satisfied that the requirements for consideration of the RH SEPP have been met.

4. The proposal was notified between 5 August 2024 and 18 August 2024. Five (5) submissions were received. The parties note that the issues raised, where appropriate, have been particularised in the statement of facts and contentions and have been adequately addressed in the Amended Development Application and/or the proposed conditions of consent at Annexure ‘A’.

5. 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’ agreement.

6. I was not required to make, and have not made, an assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court notes that:

8. The City of Ryde Council, as the relevant consent authority, has agreed, under s38(1) of the Environmental Planning and Assessment Regulation (NSW) 2021, to the Applicant amending the Development Application No. LDA2024/0152 in accordance with the following amended plans:

| Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1 | Drawing No: A000 Revision 5 | Cover Page | Sustain D&C Workshop | 31 October 2025 | | Drawing No: A001 Revision 5 | Location Plan | 31 October 2025 | | Drawing No: A005 Revision 4 | Site Survey | 31 October 2025 | | Drawing No: A010 Revision 3 | Site Plan - Ground Level | 31 October 2025 | | Drawing No: A011 Revision 5 | Site Plan - Aerial | 31 October 2025 | | Drawing No: A017 Revision 4 | Signage Plan | 31 October 2025 | | Drawing No: A018 Revision 3 | Evacuation Paths | 31 October 2025 | | Drawing No: A020 Revision 6 | Compliance Diagrams | 31 October 2025 | | Drawing No: A040 Revision 6 | Views from Sun | 31 October 2025 | | Drawing No: A041 Revision 6 | Shadow Diagrams - Jun 21 | 31 October 2025 | | Drawing No: A050 Revision 3 | Excavation Plan | 31 October 2025 | | Drawing No: A100 Revision 7 | General Arrangement - Basement | 31 October 2025 | | Drawing No: A101 Revision 6 | General Arrangement - Ground Level | 31 October 2025 | | Drawing No: A102 Revision 4 | General Arrangement - Level 1 | 31 October 2025 | | Drawing No: A200 Revision 6 | Elevations East and West | 31 October 2025 | | Drawing No: A201 Revision 6 | Elevations North and South | 31 October 2025 | | Drawing No: A301 Revision 6 | Building Sections | 31 October 2025 | | Drawing No: A302 Revision 6 | Driveway Ramp and Crossing Details | 31 October 2025 | | Drawing No: A400 Revision 5 | Perspectives | 31 October 2025 | | Drawing No: A401 Revision 3 | Perspectives from Street | 31 October 2025 | | Drawing No: A500 Revision 6 | Window Schedule | 31 October 2025 | | Shadow Diagrams | | 2 | Drawing No: SK01 Revision 1 | Comparison VFS | | 27 October 2025 | | Drawing No: SK02 Revision 1 | Comparison Shadow Diagrams | 27 October 2025 | | Documents | | 3 | Acoustic Report (Rev F) | Acoustic Works | 31 October 2025 | | 4 | Arboricultural Impact Assessment (AIA) | Urban Arbor | 7 December 2023 | | 5 | Clause 4.6 Variation - Floor Space Ratio | Think Planners | 29 October 2025 |

Orders

12. The Court Orders that:

13. The appeal is upheld.

14. Development Application No. LDA2024/0152, as amended, for the demolition of existing structures, tree removal and the construction of a two storey, 87 place ‘Centre Based Child Care Facility’ with basement car parking and identification signage on land legally described as Lot 30 in DP8787 and known as 62 Agincourt Road, Marsfield NSW 2122, is determined by the grant of development consent subject to the conditions set out in Annexure ‘A’.

Stuart Harding

Acting Commissioner of the Court

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Annexure A (669 KB, pdf)