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[2025] NSWLEC 1748
General information, not legal advice.
Land and Environment Court (NSW)
2025-10-15
Miller AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Benson Place Ryde Pty Ltd v City of Ryde Council [2025] NSWLEC 1748
Hearing dates: Conciliation Conference 8 October 2025
Date of orders: 15 October 2025
Decision date: 15 October 2025
Jurisdiction: Class 1
Before: Miller AC
Decision: The Court orders:
(1) The Applicant is to pay the Council’s costs thrown away by reason of the amendment of Development Application No. LDA2023/0323 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.
(2) The appeal is upheld.
(3) Development consent is granted to Development Application No. LDA2023/0323 for demolition, tree removal and construction of a mixed use development comprising three residential flat buildings containing 139 apartments, a centre-based child care facility, basement parking and landscape works at 691-695 Victoria Road, Ryde (Lot 17 DP 777986, Part Lot 4 DP 5873, Lot 2 DP 443925, Lot 3 DP 443926), subject to the conditions in Annexure “A”.
Catchwords: DEVELOPMENT APPLICATION – mixed use development, centre-based childcare facility, basement parking and landscape works – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Roads Act 1993, s 138
Environmental Planning and Assessment Regulation 2021, ss 23, 27, 29, 38, Sch 7
Ryde Local Environmental Plan 2014, cll 2.7, 4.3, 4.3A, 4.4, 4.4A, 4.6, 5.10, 6.2, 6.4, 6.6
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, Pt 6.2, ss 6.6, 6.7, 6.9, 6.10
State Environmental Planning Policy (Housing) 2021, Ch 4, s 147
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, Sch 1, s 2.15
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 2.119, 2.120, 2.122
Category: Principal judgment
Parties: Benson Place Ryde Pty Ltd (Applicant)
City of Ryde Council (Respondent)
Representation: Counsel:
M Staunton (Applicant)
S Berverling (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
City of Ryde Council (Respondent)
File Number(s): 2024/78801
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW), (EPA Act) being an appeal against the deemed refusal of Development Application No. LDA2023/0323 for demolition, tree removal and construction of a mixed use development comprising three (3) residential flat buildings containing 194 apartments, a centre-based childcare facility, basement parking and landscape works at 691-695 Victoria Road, Ryde (Lot 17 DP 777986, Part Lot 4 DP 5873, Lot 2 DP 443925, Lot 3 DP 443926) (site).
The Court granted leave to amend the DA on 3 June 2025. The amended plans notably altered the proposed laneway to ensure public access, reduced the number of apartments to 155, reallocated building height and made changes to the design and layout in an attempt to address the issues raised in the contentions.
The proceedings were set down for hearing on 8 and 9 October 2025. Following the amendment of the application on 3 June 2025, further discussions were held between the parties and additional amendments were made to the plans such that at the outset of the hearing the parties agreed that the contested issues had been resolved. The parties therefore requested that the proceedings be adjourned and listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW), (LEC Act). The Court granted the request and arranged a conciliation conference between the parties which was held on 8 October 2025. I presided over the conciliation conference.
At the conciliation conference agreement was reached as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is a decision that the Court could have made in the proper exercise of its functions.
The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the respondent’s bundle of documents, the joint expert reports and the plans that are referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
The Council as the consent authority consented to the further amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 8 October 2025 and are listed under Condition 1 of the conditions of consent at Annexure A. The changes made to the proposal that resulted in the application now being satisfactory to the parties include:
Reduction in the height of Building A from 7 to 5 storeys
Lowering of the western wing of Building B by 1 storey and a lowering of the rooftop communal open space (COS) level to be consistent with the western wing of Building B
Provision of commercial space at the base of Building A, removal of the residential units at the ground floor and the provision of COS around Building A (Note: commercial floor space increased from 643m2 to 861m2)
Lowering of the yield from 155 to 139 units and reduction in basement parking from 260 to 250 spaces
Lowering of the FSR from 2.46:1 to 2.3:1
Provision of a revised laneway design to provide a more direct sight line between Victoria Road and Blaxland Road
Increase in the width of the proposed slots between elements of Building B and amendment to the apartment designs to resolve the prior snorkel window arrangement
Increase in the floor to floor heights to 3.2m to enable suitable 2.7 floor to ceiling heights
Revision of the building separation between Buildings A and B and provision of privacy treatments to satisfy Part 3F of the Apartment Design Guide (ADG)
Amendment to the façade treatment, architectural design and detailing of Buildings A and B
Amendment to the landscape plan to ensure consistency with the architectural plans and to provide species selection consistent with Ryde Development Control Plan and provision of a revised conceptual public domain design for Princes Street and public domain works, and
The provision of further / amended supporting documentation.
The site has frontage to two classified roads (Victora and Blaxland Roads) and is traffic generating development in accordance with the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP). Sections 2.119, 2.120 and 2.122 of the TI SEPP therefore apply.
Section 2.119 of the TI SEPP requires that the consent authority be satisfied of various matters in respect of access to, and the safe and efficient operation of the classified road, and noise and vibration impacts from the classified road prior to the granting of consent. On the basis of the parties’ agreement, the Traffic and Parking Assessment (15 May 2025) and subsequent traffic advice (3 October 2025) both prepared by Varga Traffic Planning and the recommended conditions of consent, I am satisfied that the various matters have been considered.
Section 2.119 also applies in respect of the impact of road noise or vibration on non-road development (including centre based child care) and requires the consideration of road noise and air quality. A Traffic Noise Assessment (Acoustic, Noise and Vibration Solutions, 29 November 2023) submitted with the Class 1 Application confirms that the proposal has been designed to comply with relevant Regulations and an acoustic assessment (Acoustic, Noise and Vibration Solutions, 7 October 2025) has also been submitted in respect of the amended plans. Further an Air Quality Impact Assessment has been prepared by Benbow Environmental (May 2025) which confirms that the proposal is acceptable. I therefore accept that adequate consideration has been given to these requirements.
The parties also agree having regard to the Traffic Noise Assessment prepared by Acoustic, Noise and Vibration Solutions (14 May 2025) that the development will not be adversely affected by the impact of road noise or vibration in accordance with the requirements of s 2.120 and that consideration has been given to the relevant Guidelines as required.
The proposal is also ‘traffic-generating development’ in accordance with the TI SEPP and therefore s 2.122 applies and requires that notice of the proposal be given to Transport for NSW (TfNSW). In accordance with the provision TfNSW was notified of the proposal and advised that is did not support the proposal and that it required further information. This further information was subsequently provided (Letter by Varga Traffic Planning dated 27 June 2025) and the parties advise satisfies TfNSW’s requirements. While it is noted that TfNSW has not responded to the additional information, it did indicate that it would (in the future) issue its concurrence for works to the classified road provided agreed conditions were applied to any consent issued. These conditions have been applied to the consent.
I note that the application is not integrated development as approval has not been sought in the subject development application for works in accordance with s 138 of the Roads Act 1993. Accordingly, formal concurrence from TfNSW is not required to the development application in this instance.
Chapter 3 Educational Establishments and Child Care Facilities of the TI SEPP also applies as the proposal includes a centre based childcare facility. It contains specific provisions for centre based child care and requires consideration of the Child Care Planning Guidelines. I am satisfied on the basis of the parties’ agreement, the amended plans and the Statement of Environmental Effects (Think Planners, 19 May 2025) that the proposal complies with the relevant provisions of the TI SEPP and has due regard to the Guidelines.
Consideration has been given to Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) in respect of vegetation in non-rural areas however it is noted that the proposal seeks consent for tree removal and that therefore the provisions of Ch 2 do not apply.
The site is located within the Sydney Harbour Catchment regulated catchment for the purposes of the BC SEPP and accordingly Ch 6 Pt 6.2 applies. I am satisfied in respect of the requirements of s 6.6 Water Quality and Quantity, s 6.7 Aquatic Ecology, s 6.9 Recreation and Public Access and s 6.10 Total Catchment Management (in so far as they are applicable) on the basis of the parties’ agreement, the Joint Expert Stormwater Report, the amended stormwater plans (C & S Engineering Services, various dates) and the conditions of consent.
The site is zoned MU1 Mixed Use in accordance with Ryde Local Environmental Plan 2014 (RLEP). The proposed development for a mixed use development and child care centre is permissible with consent in the zone and has regard to the zone objectives.
Demolition of the existing buildings on site is permissible with consent in accordance with cl 2.7 of RLEP.
Clause 4.3 height of buildings applies to the site, permitting a maximum height of 18.5m. Notwithstanding cl 4.3A provides an exception in the subject ‘Area F’ where the development site has an area exceeding 900m2, provides for mixed use development and provides laneway access that is not a private driveway or private laneway. The parties agree that the proposal meets these requirements and that therefore, in accordance with cl 4.3A, the maximum height of buildings is 21.5m (+ 3m). The proposed development however has a maximum height of 28.78m (exceedance of a maximum of 7.28m) and accordingly a cl 4.6 variation request has been submitted seeking to vary the building height development standard. I am satisfied that consent should be granted notwithstanding the contravention of the building height development standard having regard to the circumstances of the case. In particular I am satisfied that:
The written request, dated 7 October 2025 prepared by Think Planners, lodged pursuant to cl 4.6 of the RLEP adequately establishes sufficient environmental planning grounds that justify the breach in the building height development standard.
The written request demonstrates that compliance with the standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the standard notwithstanding the non-compliance and that it will not result in any adverse impacts.
Based on the content of the written request, the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard.
I note that the height exceedance is primarily the result of a redistribution of height to reduce the potential impact on neighbouring development to the north west.
Clause 4.4 maximum floor space ratio (FSR) applies to the site permitting a maximum FSR of 1.8:1. Notwithstanding cl 4.4A provides an exception in the subject ‘Area I’ where the development site has an area exceeding 900m2, provides for mixed use development and provides laneway access that is not a private driveway or private laneway. The parties agree that the proposal meets these requirements and that therefore, in accordance with cl 4.4A, the maximum FSR is 2.5:1 (+0.7:1). The amended proposal complies with the maximum FSR having an FSR of 2.3:1.
The site is in the vicinity of a number of heritage items therefore an assessment of heritage impact has been undertaken in accordance with clause 5.10 of RLEP. On the basis of the Heritage Impact Statement (Urbis, 29 November 2023) the parties agree, and I accept, that the proposal will not result in any adverse heritage impact.
Clause 6.2 earthworks also applies to the amended DA. I accept the parties’ agreement that the provisions of cl 6.2 have been considered as demonstrated in the Geotechnical Investigation Report (CEC Geotechnical,28 November 2023), amended stormwater plans (C & S Engineering Services, various dates), Detailed Site Investigation (CEC Geotechnical, 28 November 2023) and having regard to the recommended conditions of consent.
Clause 6.4 of RLEP provides that consent must not be issued unless the consent authority is satisfied in respect of stormwater management matters including water sensitive urban design. I am satisfied of these matters on the basis of the parties’ agreement, the proposed plans (including the landscape and stormwater plans) and the proposed conditions of consent.
Clause 6.6 of RLEP also applies in respect of environmental sustainability requirements and provides that consent must not be issue unless the consent authority is satisfies in respect of the specified matters. Based on the parties’ agreement and the submitted BASIX certificate, Section J Report, waste management plan and detailed site investigation, I accept that these matters have been satisfied.
The development application is made with the consent of the owners of the site in accordance with s 23 of the EPA Reg.
The parties have advised that consideration has been given to the provisions of Ryde Development Control Plan 2014 as required by s 4.15(1)(a(iii)) of the EPA Act.
The Respondent notified the original development application between 10 and 24 January 2024. Eight (8) submissions were received in response to the notification. The amended plans were further notified from 13 June to 4 July 2025 and a further five (5) submissions were received. In reaching agreement, the parties have advised that consideration has been given to the concerns raised in the submissions and that these matters are address via the final amended plans and the imposition of suitable conditions of consent.
Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
The Court orders:
The Applicant is to pay the Council’s costs thrown away by reason of the amendment of Development Application LDA2023/0323 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.
The appeal is upheld.
Development consent is granted to Development Application No. LDA2023/0323 for demolition, tree removal and construction of a mixed use development comprising three residential flat buildings containing 139 apartments, a centre-based child care facility, basement parking and landscape works at 691-695 Victoria Road, Ryde (Lot 17 DP 777986, Part Lot 4 DP 5873, Lot 2 DP 443925, Lot 3 DP 443926), subject to the conditions in Annexure “A”.
H Miller
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Annexure A (1.11 MB, pdf)
Benson Place Ryde Pty Ltd
City of Ryde Council [2025] NSWLEC 1748