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[2026] NSWLEC 1160
General information, not legal advice.
Land and Environment Court (NSW)
2026-03-26
Kullen 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: Holdmark NSW Pty Ltd v City of Ryde Council [2026] NSWLEC 1160
Hearing dates: Conciliation conference held on 3 February 2026
Date of orders: 26 March 2026
Decision date: 26 March 2026
Jurisdiction: Class 1
Before: Kullen AC
Decision: The Court orders:
(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $1,000 within 14 days of these orders.
(2) The appeal is upheld.
(3) Development Application LDA2025/0121 as amended for Torrens title subdivision of land at 66 Talavera Road, Macquarie Park, NSW, 2113, legally known as Lot 1 in DP854779, into two lots is determined by the grant of development consent subject to the conditions at Annexure A.
Catchwords: DEVELOPMENT APPEAL — conciliation conference — agreement between the parties — orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), Pt 4, ss 4.15, 4.16, 4.17, 4.46, 8.7, 8.15, Sch 1, Div 2, cl 7
Land and Environment Court Act 1979 (NSW),
s 34
Local Land Service Act 2013 (NSW), Pt 5, s 60O
Rural Fires Act 1997 (NSW), s 100B
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Ryde Local Environmental Plan 2014, Pt 7, cll 2.2, 2.3, 2.6, 2.7, 4.1, 4.3, 4.4, 4.5, 4.6, 5.21, 6.4, 7.3, 7.7
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, s 2.6, 2.7, 6.6, 6.7, 6.8, 6.9
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119
Cases Cited: Investa Nominees (2) Pty Ltd v City of Sydney Council [2024] NSWLEC 1048
Texts Cited: Macquarie Park Design Guide 2024
Ryde Development Control Plan 2014
Category: Principal judgment
Parties: Holdmark NSW Pty Ltd (Applicant)
City of Ryde Council (Respondent)
Representation: Counsel:
P Tomasetti (Applicant)
J Smith (Respondent)
Solicitors:
Corrs Chambers Westgarth (Applicant)
HWL Ebsworth Lawyers (Respondent)
File Number(s): 2025/410508
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of development application No LDA2025/0121 (the DA) for the subdivision of land into two lots at 66 Talavera Road, Macquarie Park, NSW, 2113, legally known as Lot 1 in DP854779 (the site).
Proposed Lot 1 would be 34,200 m2 in area and proposed Lot 2 would be 3,612 m2 in area. There is an existing 6 storey office building on the site which would be contained within the smaller of the two proposed lots.
The DA was lodged with the City of Ryde Council (the Respondent) on 17 July 2025.
On 24 October 2025, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction, under s 8.7 of the EPA Act against the deemed refusal of the DA by the Respondent.
On 13 November 2025, the Respondent determined the DA by way of refusal.
The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 18 November 2025. The Applicant filed its Statement of Facts and Contentions in reply on 16 December 2025.
On 3 February 2026, the Court arranged a s 34 conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act). As no submissions had been received in response to the notification of the DA, the on-site view was vacated at the request of the parties.
On 3 February 2026 at the s 34 conciliation conference, the parties confirmed that they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to an amended DA subject to conditions.
The parties advise that the s 34 agreement was reached following an amendment to the DA to include a master plan for the site, which is acceptable to both parties.
A signed s 34 agreement with Annexure A and the amended DA (which now includes an Indicative Masterplan dated 23 January 2026 prepared by Hamptons) as agreed between the parties were filed with the Court on 3 February 2026. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites provided by the parties.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.
The northern part of the site is within a bushfire prone area. Pursuant to s 100B of the Rural Fires Act 1997 (NSW) (the Rural Fires Act), a person must obtain a bush fire safety authority before developing bush fire prone land including subdivision that could lawfully be used for residential purposes.
The parties advise that a bushfire safety authority pursuant to s 100B of the Rural Fires Act is not required, as the subdivided land cannot be lawfully used for residential or rural residential purposes. The site is zoned E3 Productivity Support under the Ryde Local Environmental Plan 2014 (the LEP) and these uses are prohibited in the E3 zone.
Therefore, the proposed development is not integrated development under s 4.46 of the EPA Act as it does not require authorisation from s 100B of the Rural Fires Act.
Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) operates to protect the biodiversity values of trees and other vegetation in non-rural areas of NSW and to preserve the amenity of non-rural areas of NSW through the preservation of trees and other vegetation. Chapter 2 of the Biodiversity SEPP applies to the site as it is located in the Ryde local government area.
Pursuant to s 2.6(1) of the Biodiversity SEPP, vegetation cannot be cleared on land to which Ch 2 applies without the authority conferred by a permit granted by the Council. However, in accordance with s 2.7(1) of the Biodiversity SEPP, a permit or approval to clear vegetation is not required if it is clearing of a kind that is authorised under s 60O or Pt 5B of the Local Land Services Act 2013 (NSW) (LLS Act).
The parties advise that the DA does not propose the removal of any trees from the site.
Chapter 6 of the Biodiversity SEPP seeks to manage and promote integrated catchment management policies and applies to land in the Sydney Drinking Water Catchment, the Sydney Harbour Catchment, the Georges River Catchment, and the Hawkesbury-Nepean Catchment. The proposed development is located within the Sydney Harbour Catchment which is a “regulated catchment” for the purposes of Ch 6 of the Biodiversity SEPP.
Sections 6.6, 6.7, 6.8 and 6.9 of the Biodiversity SEPP set out a number of matters which the consent authority must consider before granting consent to development on land in a regulated catchment. These include whether the development will have a neutral or beneficial effect on the quality of water entering a waterway, whether the development will have an adverse impact on water flow in a natural waterbody, whether the development will increase the amount of stormwater runoff from a site, and whether the development will have a direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation.
The parties advise that Council is satisfied that the requirements of ss 6.6, 6.7, 6.8 and 6.9 of the Biodiversity SEPP are met on the basis that the site is not located close to waterways, no earthworks or building works are proposed as part of the DA, and the DA proposes appropriate stormwater drainage via easements, ensuring that the proposal will not have any adverse impact on water quality.
Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which the development is proposed to be carried out.
The parties advise that no earthworks are proposed as part of the proposed subdivision, and that Council is satisfied on this basis that the site is suitable for the proposed development from a contamination perspective.
The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.
The proposed development is subject to s 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Transport SEPP) as the site has frontage to a classified road (being the M2 Motorway to the north and Talavera Road to the south). Section 2.119 of the Transport SEPP sets out the matters which the consent authority must be satisfied of before granting consent to the carrying out of the development, being that:
where practicable and safe, vehicular access to the land is provided by a road other than the classified road;
the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of the design of the vehicular access to the land, or the emission of smoke or dust from the development, or the nature, volume or frequency of vehicles using the classified road to gain access to the land; and
the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.
The parties advise that:
Access to the site is currently obtained via Talavera Road, which is a classified regional road managed by Council, and Alma Road, a local road.
The proposed subdivision does not propose any changes to the current access arrangements for the site.
Council is satisfied that the proposed development will not adversely affect the operation of the classified road and that the proposal is acceptable for the purposes of s 2.119 of the Transport SEPP; and
Council is otherwise satisfied that the development does not generate traffic sufficient to require referral to Transport for NSW as traffic generating development.
The LEP is the principal environmental planning instrument applying to the site. The site is zoned E3 Productivity Support (E3 zone) pursuant to cl 2.2 of the LEP. In this zone, the subdivision of land is not expressly permitted with consent under the land use table in the LEP however cl 2.6 of the LEP provides that land to which the LEP applies may be subdivided, with development consent.
The parties advise that they consider that the proposed development meets the objectives for development in E3 Zone for the purposes of cl 2.3(2) of the LEP, and that Council is satisfied that the proposed development meets the objectives of the zone, including the additional objectives for the E3 Zone in cl 4.5B(3) of the LEP, as the application is not proposing the construction of any building on the land.
I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.
Clause 2.7 of the LEP provides that demolition is permissible with consent. There is no demolition proposed as part of the DA.
Clause 4.1 of the LEP relates to minimum subdivision lot size. No minimum lot size applies to the site under the Lot Size Map in the LEP.
Clause 4.3 relates to the Height of buildings. There is no building work proposed as part of the proposed development.
Clause 4.4 of the LEP relates to Floor space ratio (FSR) and the parties advise the Floor Space Ratio Map in the LEP provides that the maximum FSR for the site is 1:1.
However, cl 7.7 of the LEP relates to Additional requirements for increased building height and floor space ratios on land other than key sites. Where the requirements of cl 7.7(5) of the LEP are met, an FSR of 1.5:1 is permitted under cl 7.7(4) as shown on the Macquarie Park Incentive Floor Space Ratio Map referred to in cl 7.7(4).
There is no building work in the proposed development under the DA. The parties advise that the proposed subdivision will result in:
the existing building on Lot 2 (with a GFA of 8,982m2) exceeding the FSR of 1:1 on proposed Lot 2 by a GFA of approximately 5,370m² (148.7%); and
the proposed Lot 1 with an FSR of 0.3:1 (with a GFA of 10,464 m2).
Clause 4.5(9) of the LEP relates to Covenants to prevent “double dipping” and provides that:
When development consent is granted to development on a site comprised of 2 or more lots, a condition of the consent may require a covenant to be registered that prevents the creation of floor area on a lot (the restricted lot) if the consent authority is satisfied that an equivalent quantity of floor area will be created on another lot only because the site included the restricted lot.
The parties advise that:
In order to prevent 'double dipping' of floor space where the site area has been utilised for the purposes of the overall development, the Applicant has proposed that a covenant be registered over proposed Lot 1 under cl 4.5(9) of the LEP to prevent “double dipping” of floor space; and
This is reflected in condition 3 of the conditions set out in Annexure A to the Section 34 Agreement filed by the parties.
The parties submit that there is no requirement for a cl 4.6 variation under the LEP because there is no FSR non-compliance in the circumstances where cl 4.5(9) of the LEP is being utilised by the Applicant (Investa Nominees (2) Pty Ltd v City of Sydney Council [2024] NSWLEC 1048 (Investa) at [89]). Notwithstanding that the Applicant submitted a cl 4.6 variation request with respect to the FSR of proposed Lot 2, the Council is satisfied on the basis of the Court’s decision in Investa, and on the basis that the Applicant will be required to register a covenant under cl 4.5(9) of the LEP to prevent double dipping, that no cl 4.6 variation request is required.
I agree with this assessment that a cl 4.6 variation request is not required in this case as cl 4.5(9) of the LEP is being utilised to approve the proposed distribution of floor space on the site.
Clause 5.21 of the LEP relates to Flood planning. The parties advise that:
the site is affected by low and medium flood zone precincts along its western boundary for the purposes of cl 5.21 of the LEP. The DA does not propose any earthworks or building works; and
Council is satisfied on this basis that the proposal will not have any adverse impact on flood behaviour, and satisfies the requirements in cll 5.21(2) and 5.21(3) of the LEP.
Clause 6.4 of the LEP relates to Stormwater Management. The parties advise that for the purposes of cl 6.4 of the LEP, Council is satisfied on the basis that the site is not located close to waterways, no earthworks or building works are proposed as part of the DA, and the DA proposes appropriate stormwater drainage via easements, and therefore, the proposal meets the requirements of cl 6.4(3).
Part 7 of the LEP (Macquarie Park Transport Oriented Development Precinct) applies to the site. Clause 7.3 of the LEP provides that development consent must not be granted to development on land to which Pt 7 of the LEP applies unless the consent authority is satisfied the development is consistent with the Macquarie Park Design Guide (Design Guide).
The parties advise that the proposed subdivision does not result in any inconsistency with the Design Guide, its structure plan, or its urban design outcomes. The Applicant has submitted an Indicative Masterplan dated 23 January 2026 prepared by Hamptons (the Master Plan) as an amendment to the DA which shows the provision of open space and internal driveway layout consistent with the Design Guide. The conditions set out in Annexure A to the Section 34 Agreement require development to be carried out in accordance with this Master Plan.
The parties advise that incentive floor space may be available for future development as the proposed new lots are capable of meeting the requirements of cl 7.7(5). As the DA does not propose any building work, incentive floor space is not sought to be approved in this DA.
Having considered the advice of the parties provided above at [14]-[49], I am satisfied that:
The Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b)-(e) of the EPA Act;
The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and
Approval of the proposed development is in the public interest.
Further, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.
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’ decision.
The Court notes:
That the City of Ryde Council, as the consent authority, pursuant to s 38(1) of the EPA Regulation, has approved the application for an amendment to Development Application LDA2025/0121 made on 2 February 2026 to rely on the document specified below:
(a) Indicative Masterplan dated 23 January 2026 prepared by Hamptons.
The Court orders:
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $1000 within 14 days of these orders.
The appeal is upheld.
Development Application LDA2025/0121 as amended for Torrens title subdivision of land at 66 Talavera Road, Macquarie Park, NSW, 2113, legally known as Lot 1 in DP854779, into two lots is determined by the grant of development consent subject to the conditions at Annexure A.
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Holdmark NSW Pty Ltd
City of Ryde Council [2026] NSWLEC 1160