Melrose Park Development 1 Pty Ltd & Melrose Park Development 2 Pty Ltd & Melrose Park Development 3 Pty Ltd & SH Melrose Park Development 2 Pty Ltd v Council of the City of Ryde

Category: Principal judgment

Parties: Melrose Park Development 1 Pty Ltd & Melrose Park Development 2 Pty Ltd & Melrose Park Development 3 Pty Ltd & SH Melrose Park Development 2 Pty Ltd (Applicant)
Council of the City of Ryde (Respondent)

Representation: Counsel:
A Whealy (Solicitor) (Applicant)
P Kapetas (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Council of the City of Ryde (Respondent)

File Number(s): 2025/27035

Publication restriction: Nil

JUDGMENT

Introduction

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the conditional approval of Development Application No. LDA2024/0062 for road widening, new traffic signals and upgrades to intersection, including land subdivision, dedication and civil works at 1226 Victoria Road, Melrose Park and Wharf Road – Road reserve area (Lot 10 in DP128851 and Lots 8, 21 and 22 in DP 221045) (site).

2. The Site, the subject of these proceedings, is 1226 Victoria Road, Melrose Park also legally described as Lot 10 in DP128851 and the Wharf Road Reserve Area. The Wharf Road Reserve Area comprises Lots 8, 21 and 22 in DP 221045 which is land owned by the Respondent. The entirety of the site is in the public road reserve (and future road widened public road).

3. On 5 December 2024 the Respondent approved the development application subject to conditions of consent including deferred commencement conditions. The Class 1 appeal is on the basis of dissatisfaction with certain conditions of the consent including Schedule A – Deferred Commencement Conditions (A) to (D) and Schedule B – General Conditions 11,12, 26, 36 and 38.

4. The Court arranged a conciliation conference between the parties, under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 11 April, 29 April and 8 May 2025. I presided over the conciliation conference.

5. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was recorded in a signed agreement filed on 4 June 2025.

6. The agreement follows the Council’s approval of an application for an amendment to the development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). In summary the changes to the conditions as agreed by the parties are:

(a) Deletion of Deferred Commencement Conditions (A) to (D) (b) Deletion of Condition 38 (c) Variation to Condition 26 (d) Amendment to Condition 11, and (e) Amendment to Condition 12.

7. Further, amended plans were submitted including:

(a) Wharf Road Proposed Scope of Works (Rev 2) prepared by Northrop dated 19 May 2025; and (b) Typical Road Cross Sections (Rev 1), prepared by Northrop dated 13 May 2025.

8. The decision agreed upon in the parties’ agreement 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 an agreed Jurisdictional Statement, which sets out the jurisdictional requirements for the making of orders in accordance with the agreement. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents 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.

9. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons outlined below.

Roads Act 1993

10. Victoria and Marsden Roads are both Classified (State) roads, accordingly, s 138 of the Roads Act 1993 applies. Generally, s 138 requires that a person must not undertake works or erect structures in respect of a classified road otherwise than with the consent of the appropriate roads authority. Transport for NSW (TfNSW) is the roads authority in respect of the proposed works and provided its concurrence, and an in-principle approval, on 23 May 2024. Further it is understood that a Works Authorisation Deed will be entered into with TfNSW for the proposed civil works.

State Environmental Planning Policy (Resilience and Hazards) 2021

11. Consideration has been given as to whether the site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). The parties agree that the land has been used for the purposes of a road for some time including prior to the establishment of the Northern Structure Plan or the Melrose Park Precinct. Further the widening of the road and associated intersection works do not represent a change in land use to one that is more sensitive. The parties have also indicated that a Remedial Action Plan was approved as part of the previous Melrose Park Precinct consent which confirms that the site and surrounding area is suitable for medium to high density residential and open space land-uses following remediation. Accordingly, it is considered that the land is suitable for the proposed road use and no further investigation in accordance with the RH SEPP is therefore required.

State Environmental Planning Policy (Transport and Infrastructure) 2021

12. Section 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 applies to the development as it affects classified roads (Victoria and Marsden Roads) and provides that consent must not be granted to the development unless the consent authority is satisfied of the matters listed at subs (2) including matters in relation to access, safety and efficiency and the sensitivity of the proposed use to traffic noise and vehicle emissions. Based on the parties’ agreement, the TfNSW concurrence (dated 23 May 2024), the Transport Management and Accessibility Plan (Jacobs, 24 January 2019), the Voluntary Planning Agreement (filed 22 January 2025) and the AA0265- Melrose Park Safety Review, Rev B (CCDH, 29 August 20204) I am satisfied that the relevant matters have been adequately considered.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

13. Consideration has also been given to Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 in respect of the provisions relating to vegetation in non-rural areas. As consent is sought the requirements of s 2.6 are satisfied in respect of tree removal. Further the parties agree that the proposed tree removal is acceptable subject to the proposed landscape planting.

Ryde Local Environmental Plan 2014

14. The site is zoned SP2 Infrastructure (Classified Road) and R2 Low Density Residential under Ryde Local Environmental Plan 2014 (RLEP). Development for the purposes of roads is permissible in both zones with consent. Further, regard has been had to the objectives of the zones and the parties agree that the proposal is consistent with those objectives in accordance with cl 2.3.

15. Given the scope of the proposed works, which provides for minor excavation only, and on the basis of the civil plans and recommended conditions of consent, I am satisfied that consideration has been given to the matters required to be considered prior to the granting of development consent to earthworks under cl 6.2 of RLEP.

16. I am further satisfied that the proposal complies with cl 6.4 of RLEP in respect of stormwater management and water sensitive urban design having regard to the proposed plans and recommended conditions of consent.

Other matters

17. The development application was notified between 24 April and 27 May 2024 and four (4) submissions were received. No persons made submissions at the commencement of the conciliation conference. The parties have advised that regard has been had to the matters raised in submissions in the amended proposal.

18. Owner’s consent has been submitted with the Class 1 Application as required in accordance with s 23 of the EPA Reg.

Conclusion

19. Having reached the state of satisfaction that the decision is one that the Court could have made 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)).

20. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or 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.

Orders

21. The orders of the Court are:

22. The Appeal is upheld.

23. Development Application No. LDA2024/0062 for road widening, new traffic signals and upgrades to intersection, including land subdivision, dedication and civil works at 1226 Victoria Road, Melrose Park and Wharf Road – Road Reserve area (Lot 10 in DP128851 and Lots 8, 21 and 22 in DP 221045), is determined by the grant of consent subject to the conditions of consent at Annexure ‘A’.

H Miller

Commissioner of the Court

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Annexure A.627 KB.pdf