Back in December 2022 the Sydney North Planning Panel rejected a DA by the owner of Eden Gardens (the Ainsworth family, registered as Thunderbirds Are Go Pty Ltd) on Lane Cove Road, Macquarie Park to build an 18 storey office tower and other facilities. This plan was originally rejected by Ryde Council in March 2021. The applicant made no attempt to address the many issues given for the council’s rejection such as traffic, visual impact and impact on Lane Cove National Park (LCNP) next door. Therefore, the panel’s rejection decision was expected.

The next step was inevitably a Land and Environment Court hearing. This occurred in February 2024. It has taken until September, more than six months later, for the court commissioner to make a final ruling. To everyone’s relief, the application was refused.

The judgement centred on the legal considerations of:

• a merit contention of whether the visual impact was acceptable
• a jurisdictional prerequisite that the traffic impact would satisfy the terms of the Transport and Infrastructure SEPP

Submissions on environmental impacts

Several representatives with an interest in LCNP made presentations to the court hearing such as the NPWS, Friends of Lane Cove National Park, 416 Group, STEP and aboriginal cultural and heritage representatives.

Ryde Council’s submission also made several objections to the impacts on LCNP:

The development creates an unacceptable interface with LCNP, impacting on fauna habitat values, vegetation integrity, aquatic ecological values with the jarring building height resulting in significant visual impacts upon sensitive surrounding areas. These impacts are inconsistent with the zone objectives of C1 National Parks and Nature Reserves within the Ryde LEP 2014.

The judgement made little reference to the environment. Negotiations prior to the hearing did lead to the addition of a condition of consent in relation to light spill. The only other environmental consideration was the impact of shading on an area of endangered Duffys Forest near the development that was discounted because it applied only during a short period of winter. Other issues raised such as risks to birds from reflection of sunlight off the tower, light disturbance to nocturnal animals or bushfire evacuation were not covered in the judgement.

There is going to be increasing pressure for development abutting bushland that will increase bushfire risks and impacts on wildlife. It is concerning that the legal process does not seem to give these issues enough consideration. Legal judgements usually quote extensively from other precedents that relate to past cases. Environmental issues are evolving all the time, especially the impacts of climate change. How can we progress the interest of the natural environment in this backward-looking situation?

The main issue – traffic

The development application (LDA2021/0095) was for alterations and additions to the existing garden centre and construction of an 18 storey office building including car parks with a total of 539 car spaces and additional dining space. All these aspects of the development will obviously generate more car movements. The garden centre is to remain in place.

A lot of the court hearing processes related to options for road access modifications and a proposed pedestrian bridge over Lane Cove Road. Nevertheless, the commissioner commented that the application process was fragmented in relation to this most important issue. She commented:

I observe, merely by way of comment, that none of the parties seem to have properly grappled with the status of the relevant roads adjoining the site until very late in the proceedings including up to and during the hearing.

Basically, the applicant contended that there would be no adverse impact on classified roads, namely Lane Cove Road and the M2 access ramps. When Ryde Council and Transport for NSW raised this issue they made an attempt to respond by proposing to build a pedestrian bridge over Lane Cove Road from near Fontenoy Road to Eden Gardens. The commissioner dismissed this as a ‘red herring’. It was a half-baked idea. Several trees would have to be removed that currently shield the unit blocks on the western side. It would not help commuters walking from the Metro Station as they would still have to cross the M2 link roads somehow. A few residents near Fontenoy Road might have benefitted, that is all.

The applicant suggested some options for easing congestion at the access to the site and intersection with Fontenoy Road. The commissioner considered that the modelling demonstrated that, even with the implementation of mitigation measures such as extra turning lanes, the volume of traffic generated by the development would have clear adverse effects on the safety, efficiency and ongoing operation of the M2 and Lane Cove Road.

Visual impact

The applicant’s experts argued that the tower was desirable because:

A tower form with its small footprint enables activation of the ground plan and uses that continue the functions that the community currently enjoy on the site.

They are also taking advantage of the situation that there is no height limit for the site specified in the Ryde LEP. There is however a maximum floor space ratio 1:1. The proposed development would have a floor space ratio of 0.996:1!

Four aspects of the obvious visibility of the 18 storey tower (80 m high) were considered:

• Consistency with the urban landscape as defined by the objectives of the Ryde LEP. The court decided that was compatible with the appearance of the area even though the tower would be 60% higher than the nearest tall buildings on the southern side of the M2.
• Its proximity to LCNP. The site is next to the Tunks Hill Picnic Area so one would expect an 80 metre high tower would have a big impact. Some experts argued that the picnic area is not totally immersed in the national park. Unfortunately, the LCNP website states that one of the features of the area is its ‘great views of Chatswood’. The fact that these are very distant views with dense forest in the foreground did not have any relevance to the court.
• Its proximity to other parts of LCNP is dismissed on the grounds that it would not be visible from other picnic areas or recognised walking tracks further into the park, where it would be screened by topography. This ignores the topography aspects for all the residents on the northern side of LCNP.
• Visibility to road users. Current views for drivers along Lane Cove Road, de Burghs Bridge and the M2 can enjoy a vista of bushland when travelling near the Eden Gardens site. Town planning experts provided differing views, one that the tower will have an adverse impact, another said the view would only be fleeting for cars on the M2 and there are already numerous views of high development nearby. The commissioner considers the impact to be acceptable. So much for the idea that cumulative impact of adding another high rise interruption to bushland views along the M2 is an intrusion for many people.

On these grounds the arguments about visual impact were deemed to not merit the refusal of the DA.