Kim v Ku-ring-gai Council

[2025] NSWLEC 1212

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kim v Ku-ring-gai Council [2025] NSWLEC 1212

Hearing dates:

Conciliation conference held on 25 February 2025

Date of orders:

08 April 2025

Decision date:

08 April 2025

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application eDA0209/24 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

(2) The appeal is upheld.

(3) Consent is granted to Development Application eDA0209/24 (as amended) for alterations and additions to the existing dwelling at 122 Fiddens Wharf Road, Killara, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions – single dwelling house – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

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

Environmental Planning and Assessment Regulation 2021, ss 27, 38

Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 2.7, 5.10, 5.21, 6.1, 6.2, 6.5

State Environmental Planning Policy (Biodiversity and Conservation) 2021

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

State Environmental Planning Policy (Sustainable Buildings) 2022

Category:

Principal judgment

Parties:

Seamin Kim(First Applicant)
Soon Young Kim (Second Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
G Hartley (Solicitor) (Applicant)
N Ferguson (Solicitor) (Respondent)

Solicitors:
Hartley Solicitors (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2024/393199

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Saemin Kim and Soon Young Kim (together the Applicant), against the refusal of Development Application eDA0209/24 (the DA) by Ku-ring-gai Council (the Respondent).

2. At the date of its lodgement on 11 June 2024, the DA sought consent for alterations and additions to the existing dwelling at 122 Fiddens Wharf Road, Killara (the site).

3. The Court arranged a conciliation conference pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 25 February 2025. I presided over the conciliation conference.

4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which included issues of inconsistency with the local streetscape character, inappropriate building form and bulk, unacceptable overshadowing impacts upon neighbouring properties, and uncharacteristic materials and finishes, amongst other contentions.

6. Agreed design amendments have been made to rationalise the form and reduce the scale of the roof, lowering ridge heights and roof pitch. This is agreed to resolve each of the contentions.

7. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

10. The DA was publicly notified from 1 July to 15 July 2024. No submissions were received by the Respondent. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

11. The parties agree, and I am satisfied, that the Ku-ring-gai Local Environmental Plan 2015 (KLEP) is the relevant local environmental planning instrument. The site is zoned R2 Low Density Residential. The amended DA - characterised as alterations and additions to an existing dwelling house - is permissible with consent.

12. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the KLEP, the amended DA is consistent with the relevant R2 High Density Residential zone objectives which include:

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.

13. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the KLEP, consent is required to carry out demolition, and accordingly consent for the partial demolition of the existing dwelling house is sought within the amended DA.

14. The parties agree, and I am satisfied, that all principal development standards of the KLEP, including for height of building and floor space ratio have been met by the amended DA.

15. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the KLEP - Heritage conservation - the site is not a listed heritage item, and is not situated within a heritage conservation area, nor in close proximity to any heritage item.

16. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the KLEP - Flood planning - the site is not identified within any flood planning area.

17. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the KLEP - Acid sulphate soils - the site is mapped within an area classified as Class 5 Acid Sulfate Soils. Works are not proposed within 500m of any adjacent Class 1 to 4 land, and propose a minor extent of excavation associated with new footings. These works are unlikely to lower the water table below 1m AHD and hence the amended DA does not require an acid sulphate soils management plan.

18. The parties agree, and I am satisfied, that pursuant to cl 6.2 of the KLEP - Earthworks - the extent of proposed excavation works are considered to be minor and limited to footings and foundations. The matters set out at cl 6.2(3) have been appropriately addressed in the amended DA.

19. The parties agree, and I am satisfied, that pursuant to cl 6.5 of the KLEP - Stormwater management and water sensitive urban design - the amended DA includes appropriate measures to manage stormwater and avoid adverse impacts of stormwater runoff.

20. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. Pursuant to s 4.6 of SEPP Resilience, I am satisfied that the long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated.

21. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

22. SEPP BC applies to the amended DA due to the site being situated within Ku-ring-gai local government area and in close proximity to Lane Cove National Park, which is designated as part of the declared area of outstanding biodiversity value. The parties agree, and I am satisfied, that the amended DA will not create adverse impacts upon the biodiversity values of nearby trees within the National Park. Agreed conditions of consent are imposed to protect existing adjoining trees.

23. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022. Pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021, a BASIX certificate number 1741468S_02, dated 10 May 2024, has been provided with the DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

24. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

Notes

25. The Court notes that:

1. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 24 February 2025.

Orders

26. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application eDA0209/24 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

2. The appeal is upheld.

3. Consent is granted to Development Application eDA0209/24 (as amended) for alterations and additions to the existing dwelling at 122 Fiddens Wharf Road, Killara, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A

                                                                                                               **********

Amendments

11 April 2025 - Annexure A amended to contain the correct conditions of consent.

Decision last updated: 11 April 2025