Chen v Ku-ring-gai Municipal Council

[2025] NSWLEC 1239

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chen v Ku-ring-gai Municipal Council [2025] NSWLEC 1239

Hearing dates:

Conciliation conference on 3 April 2025

Date of orders:

15 April 2025

Decision date:

15 April 2025

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No eDA0096/24 for the construction of a new dwelling, swimming pool, cabana and associated works in relation to Lot 1 in Deposited Plan 963837, known as 5 Norfolk Street, Killara is determined by the grant of consent, subject to the conditions set out in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, s 38

Ku-ring-gai Local Environmental Plan 2015, cll 4.3, 4.4, 4.6

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category:

Principal judgment

Parties:

Mengmeng Chen (Applicant)
Ku-ring-gai Municipal Council (Respondent)

Representation:

Counsel:
G Hugo (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2024/366056

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No eDA096/24 for the construction of a new dwelling, swimming pool, cabana and associated works (the proposal), at 5 Norfolk Street, Killara (the site), by Ku-ring-gai Municipal Council (the Council).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 April 2025. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to 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.

3. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are preconditions to the exercise of the power to grant development consent for the proposal.

Amended application

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The plans and documents comprising the amended application are:

Reference/ DWG No	Title/Description	Revision	Prepared by	Date
Architectural Plans
DA-010	BASIX Commitment	4	Wen Architects	13/02/2025
DA-050	Site Plan	4	Wen Architects	13/02/2025
DA-100	Ground Floor_GA Plan	4	Wen Architects	13/02/2025
DA-110	First Floor GA Plan	4	Wen Architects	13/02/2025
DA-120	Roof Plan	4	Wen Architects	13/02/2025
DA-200	Elevation	4	Wen Architects	13/02/2025
DA-210	Elevation	4	Wen Architects	13/02/2025
DA-220	Elevation	4	Wen Architects	13/02/2025
DA-230	Elevation	4	Wen Architects	13/02/2025
DA-500	Area Calculation	4	Wen Architects	13/02/2025
DA-510	Area Calculation	4	Wen Architects	13/02/2025
DA-530	Building Envelope	4	Wen Architects	13/02/2025
DA-545-1	Shrubs on site	4	Wen Architects	13/02/2025
DA-545-2	Shrubs on site	4	Wen Architects	13/02/2025
DA-543-3	Shrubs on site	4	Wen Architects	13/02/2025
DA-550-1	Shadow Diagrams	4	Wen Architects	13/02/2025
DA-550-2	Shadow Diagrams	4	Wen Architects	13/02/2025
DA-550-3	Shadow Diagrams	4	Wen Architects	13/02/2025
DA-550-4	Shadow Diagrams	4	Wen Architects	13/02/2025
DA-550-5	Shadow Diagrams	4	Wen Architects	13/02/2025
DA-550-6	Shadow Diagrams	4	Wen Architects	13/02/2025
DA-550-7	Shadow Diagrams	4	Wen Architects	13/02/2025
DA-550-8	Shadow Diagrams	4	Wen Architects	13/02/2025
DA-550-9	Shadow Diagrams	4	Wen Architects	13/02/2025
DA-550-10	Shadow Diagrams	4	Wen Architects	13/02/2025
DA-5550-11	Shadow Diagrams	4	Wen Architects	13/02/2025
DA-550-12	Shadow Diagrams	4	Wen Architects	13/02/2025
DA-550-13	Shadow Diagrams	4	Wen Architects	13/02/2025
DA-550-14	Shadow Diagrams	4	Wen Architects	13/02/2025
DA-600	External Finish Schedule	4	Wen Architects	13/02/2025
DA-900	Retaining Change 3D	4	Wen Architects	13/02/2025
DA-910	Retaining Change 3D	4	Wen Architects	13/02/2025
Landscape Plans
L01	Landscape Plan – Sheet 1 of 4	B	Zenith Landscape Designs	13/02/2025
L02	Landscape Plan – Sheet 2 of 4	B	Zenith Landscape Designs	13/02/2025
L03	Landscape Plan – Sheet 3 of 4	B	Zenith Landscape Designs	13/02/2025
L04	Landscape Plan – Sheet 4 of 4	B	Zenith Landscape Designs	13/02/2025
Stormwater Management Plans
S1	Stormwater drainage plan	rev 5	MBC Engineering	21/11/2024
S2	Stormwater drainage plan	rev 4	MBC Engineering	21/11/2024
S3	Stormwater drainage plan	rev 1	MBC Engineering	20/12/2023
S4	Stormwater drainage plan	rev 2	MBC Engineering	09/07/2024

Pre-conditions to the grant of consent and consideration

5. I accept the Council’s assessment that the site is suitable for the development, having been historically used for a residential purpose, and that the matters under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been addressed.

6. The site is zoned R2 Low Density Residential pursuant to Ku-ring-gai Local Environmental Plan 2015 (LEP 2015). The objectives of the zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

7. The proposal complies with the height of buildings and floor space ratio development standards under cll 4.3 and 4.4 of LEP 2015.

8. Pursuant to cl 6.3 of LEP 2015, the site is partially mapped as being subject to a biodiversity protection provision within the clause. The proposal has been reviewed by Council’s Ecological Assessment Officer who is satisfied that the objectives of the clause have been met as the proposed development does not result in the removal of native vegetation from mapped lands. I am satisfied, on the basis of the Council’s submission, that the design will appropriately manage the environmental impact of the works.

9. Pursuant to cl 6.5 of LEP 2015, the proposal provides for a stormwater management plan that is consistent with the Council's development controls. Council’s Development Engineer is satisfied that the requirements of the clause have been met, subject to conditions. On the basis of the Council’s submission, I am satisfied that the proposal satisfies this clause.

Conclusion

10. I have considered the submissions made by the Council in the Jurisdictional Statement submitted to the Court on 2 April 2025 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

11. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No eDA0096/24 for the construction of a new dwelling, swimming pool, cabana and associated works in relation to Lot 1 in Deposited Plan 963837, known as 5 Norfolk Street, Killara is determined by the grant of consent, subject to the conditions set out in Annexure ‘A’.

Susan O’Neill

Commissioner of the Court

**********

366056.24 (Annexure A)