White v City of Ryde Council

Cases Cited: White v City of Ryde Council [2024] NSWLEC 1313

Texts Cited: City of Ryde, Community Participation Plan

Category: Principal judgment

Parties: Nigel White (Applicant)
City of Ryde Council (Respondent)

Representation: Counsel:
V Conomos (Solicitor) (Applicant)
L McDonald (Solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicant)
The City of Ryde (Respondent)

File Number(s): 2025/299764

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: These proceedings arise following an application to the Court under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to modify development consent LDA2021/0445 (the Consent) granted in White v City of Ryde Council [2024] NSWLEC 1313 (‘White v Ryde’). White v Ryde granted approval for the construction and operation of a part 2/part 3 level childcare facility catering for up to 48 children serviced by 11 on-site car parking spaces and associated landscaping and stormwater management works at 5 Aeolus Avenue, Ryde legally described as Lot 10 in DP 7159 (the Site).

2. Application LDA2021/0445/1 (the Modification Application) proposed to amend the approved development application by extending the time period by which the deferred commencement condition imposed on the Consent is to be complied from 15 months to 33 months. The deferred commencement condition is directed to the registration of an easement over an adjoining property, 47A Wolger Road, Ryde, Lot 2 DP 594991, for drainage of the Site.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 19 August 2025. I presided over the conciliation conference. At the conciliation conference, an agreement was reached between the parties to approve the modification application. The terms of the parties’ agreement are outlined in in their executed written agreement.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement. In that regard, I note the following matters.

Modifications involving no or minimal environmental impact: s 4.55 (1A)(a) EPA Act

5. The Modification Application was made pursuant to s 4.55(8) of the EPA Act as is nominated as falling within the ambit of a modification pursuant to s 4.55(1A) of the EPA Act. I accept the agreement of the parties that the proposed modification of the deferred commencement condition to extend the period for compliance is a modification involving no or minimal environmental impact.

Substantially the same development: s 4.55(1A)(b) EPA Act.

6. The parties submit, and I accept, that the development to which the Consent as proposed to be modified relates, is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified). In forming that view, I have had regard to the Statement of Environmental Effects which details the narrow scope of the amendments and that the remainder (the majority) of the development remains unchanged. Further, the Modification Application does not propose any change to the use, overall appearance, scale or form of the proposed development.

7. I am satisfied that on the basis of the amendments made by the applicant, that the development to which the Consent as modified relates is substantially the same development as the development for which consent was originally granted.

Notification and consideration of submissions: ss 4.55 (1A)(c) and (d) of the EPA Act

8. The Modification Application is not integrated or designated development and there are no applicable requirements to consult external authorities.

9. Given the limited nature of the scope of the Modification Application, public notification is not required by either the Environmental Planning and Assessment Regulation 2021 (NSW) nor the Respondent’s Community Participation plan.

10. The requirements of ss 4.55(2)(c) and (d) of the EPA Act are met.

11. Given the narrow scope of the amendment sought in the Modification Application to the consent granted in White v Ryde, I accept the agreement of the parties that the Modification Application does not generate any new impacts for consideration under s 4.15 of the EPA Act, nor the findings of satisfaction on the jurisdictional preconditions found by the Court.

12. 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)).

13. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

Orders

14. The Court orders that:

15. Pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW), Modification Application LDA2021/0445/1 for the modification of development application DA-LDA2021/0445 at 5 Aeolus Avenue, Ryde is approved.

16. Development consent LDA2021/0445 granted by the Land and Environment Court on 11 June 2024 is modified in the terms in Annexure A.

17. Development consent LDA2021/0445 for the construction and operation of a part 2/ part 3 level centre based childcare facility catering for up to 48 children, parking and associated landscaping and civil works at 5 Aeolus Avenue, Ryde is subject to the consolidated, modified conditions of consent at Annexure B.

D Dickson

Commissioner of the Court

Annexure A (113 KB, pdf)

Annexure B (390 KB, pdf)

**********