Golf Course DMG Developments Pty Ltd v City of Ryde Council [2019] NSWLEC 1061

Golf Course DMG Developments Pty Ltd v City of Ryde Council [2019] NSWLEC 1061

The amendments to the plans were not minor because their degree and cumulative effect required reassessment of overshadowing, privacy, DCP and ADG compliance and expert evidence, and raised new issues; therefore s 8.15(3) required the Applicant to pay the consent authority's costs thrown away. On the merits, the proposal was acceptable because it complied with the relevant height and FSR standards, was consistent with the desired future character and applicable planning controls for the South Gladesville precinct, appropriately accommodated site servicing and traffic constraints on site, adequately addressed amenity and privacy through amended plans and conditions, and provided a...

Jurisdiction
Australia
Judgment Date
19 February 2019
Procedural Posture
Class 1 Development Application Appeal Against Deemed Refusal / Final Determination After Hearing
Outcome
Appeal upheld; development application approved subject to conditions; Applicant granted leave to rely on amended plans and ordered to pay thrown away costs as agreed or assessed.
Legal Topics
['development Consent' 'residential Flat Building' 'streetscape and Urban Design' 'building Setbacks and Separation' 'residential Amenity' 'traffic, Access and Parking' 'costs for Amended Development Application']
['planning and Development' 'environmental Law' 'local Government'] ['development Consent' 'residential Flat Building' 'streetscape and Urban Design' 'building Setbacks and Separation' 'residential Amenity' 'traffic, Access and Parking' 'costs for Amended Development Application']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal Against Deemed Refusal / Final Determination After Hearing

Legal Issues

  1. 1 ['Whether leave should be granted for the Applicant to rely on amended plans and whether the amendments were minor for the purposes of costs under s 8.15(3) of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed nil setback to the southern boundary and side boundary setbacks were appropriate under the Ryde Development Control Plan 2014, SEPP 65 and the Apartment Design Guide.' 'Whether the development produced acceptable streetscape, urban design and public domain outcomes despite the loading dock, ramp and on-site servicing requirements.' 'Whether the proposal produced acceptable amenity outcomes for future occupants and adjoining residents, including privacy, outlook, overshadowing, noise and landscaping impacts.' 'Whether traffic, access, parking, garbage collection and servicing impacts could be managed by the design and consent conditions.' 'Whether disputed consent condition 133(c), requiring the registered proprietor to bear public liability for a right of way over the 2m setback, should be imposed.']

Ratio Decidendi

The amendments to the plans were not minor because their degree and cumulative effect required reassessment of overshadowing, privacy, DCP and ADG compliance and expert evidence, and raised new issues; therefore s 8.15(3) required the Applicant to pay the consent authority's costs thrown away. On the merits, the proposal was acceptable because it complied with the relevant height and FSR standards, was consistent with the desired future character and applicable planning controls for the South Gladesville precinct, appropriately accommodated site servicing and traffic constraints on site, adequately addressed amenity and privacy through amended plans and conditions, and provided a...

Court Disposition

Appeal upheld; development application approved subject to conditions; Applicant granted leave to rely on amended plans and ordered to pay thrown away costs as agreed or assessed.

Orders

  • ['The Applicant is granted leave to rely on the amended plans, Exhibits J and K, and is to pay those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent as agreed or assessed.' 'The appeal is upheld.' 'Development Application LDA/2017/0370...