Kityanyong v Ku-ring-gai Council

[2025] NSWLEC 1014

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kityanyong v Ku-ring-gai Council [2025] NSWLEC 1014

Hearing dates:

Conciliation conference on 9-10 December 2024

Date of orders:

15 January 2025

Decision date:

15 January 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The applicant’s written request, prepared by Maximus Developments Australia dated 10 December 2024, made pursuant to cl 4.6 of the Ku-ring-gai Local Environmental Plan 2015 to vary the floor space ratio standard in cl 4.4(2A) of the KLEP, is upheld.

(2) The appeal is upheld.

(3) Development Application No eDA192/23, as amended, for the demolition of existing structures and construction of a dwelling, swimming pool, spa, cabana and associated works at 20 Coronga Crescent, Killara, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – dwelling house – 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, 6.1, 6.2, 6.5

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Chs 2, 6,ss 6.6, 6.7, 6.8, 6.9, 6.10

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

State Environmental Planning Policy (Sustainable Buildings) 2022

Category:

Principal judgment

Parties:

Natthawat Kityanyong (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
N Ferguson (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2024/330913

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Ku-ring-gai Council, of development application No eDA0192/23 which seeks consent for the demolition of existing structures and construction of a dwelling, swimming pool, spa, cabana and associated works on land at 20 Coronga Crescent, Killara, legally known as Lots 67 and 68 in DP 11443.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 and 10 December 2024. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application. These amendments included:

1. a reduction in the overall building height;

2. increased eastern setback;

3. reduced basement size and overall floor space;

4. rear fence material changed to timber; and

5. new planters and fixed privacy screens to the upper floor west-facing balcony.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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 development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised which the parties identified in a jurisdictional note, and from this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified from 8 to 22 March 2024. Four submissions were received, and two residents made oral submissions at the commencement of the proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions. The parties further agree that the amended application does not necessitate renotification.

9. The subject site is zoned R2 Low Density Residential under the Ku-ring-gai Local Environmental Plan 2015 (KLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

10. Pursuant to KLEP cl 4.3, a maximum building height of 9.5m applies to the subject site. The proposed development complies with this development standard as demonstrated by the architectural drawings by Notch Design Studio Pty Ltd in the amended application.

11. KLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.3097:1. The proposed development has an FSR of 0.33:1 which exceeds this control by 41.64m², or 9.2%.

12. As a result of this exceedance, cl 4.6(3) of the KLEP allows the applicants to request a contravention of this development standard. This request must demonstrate that compliance with the FSR development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. To that end, the applicants have submitted a written request prepared by Maximus Developments Australia dated December 2024 (the cl 4.6 request). Pursuant to KLEP cl 4.6, I am satisfied that:

1. the cl 4.6 request demonstrates that compliance with the Height of Buildings development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of the FSR development standard at cl 4.4, notwithstanding the non-compliance;

2. the cl 4.6 request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that:

1. the breach of the development standard does not result in any adverse amenity impacts on the development or neighbouring sites;

2. the proposed development is consistent with the streetscape and existing built form, irrespective of the breach of the development standard;

3. the contravention is therefore justified by a lack of adverse impact on neighbouring residents, and through consistency with the streetscape and existing built form. The applicant has therefore demonstrated that compliance with the development standard is unreasonable or unnecessary in these circumstances, and there are sufficient environmental planning grounds to justify the contravention of this development standard.

13. Pursuant to KLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, but is not within 500m of an adjacent Class 1, 2, 3 or 4 land. Subsequently there is no requirement for an acid sulfate management plan, and the requirements of this clause are met.

14. Earthworks are proposed as part of the development to accommodate a basement, and to manage the existing topography. Based on the parties’ submission and the following information, I accept that the matters listed in KLEP cl 6.2 have been considered and the earthworks proposed in this application are acceptable:

• Statement of Environmental Effects by Maximus Developments Australia dated 5 November 2023 (SEE);

• Factual Geotechnical Investigation Report by Atlas Geotechnical Services dated 8 June 2023; and

• Geotechnical Investigation Report by Atlas Geotechnical Services dated 5 December 2023.

15. From the parties’ submission and the Stormwater Concept drawings by MBC Engineering Pty Ltd in the amended application, I accept that the proposed development meets the stormwater and water sensitive urban design requirements of KLEP cl 6.5, and that the proposed development has been designed to avoid significant adverse impacts of stormwater runoff in adjoining properties.

16. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) requires the consent authority to consider whether the site is contaminated and, if so, whether it is or will be made suitable for the intended use. From the parties’ submission and the information contained in the SEE, I accept that there is no known contamination on the site nor any history of contaminating activities and that, subject to the agreed conditions of consent, the site is suitable for the intended, continued residential use.

17. In accordance with the requirements of the State Environmental Planning Policy (Sustainable Buildings) 2022, the development is a BASIX affected building pursuant to the EPA Regulation. Accordingly, a BASIX certificate accompanies the amended application.

18. Pursuant to Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), consent for the removal of four trees from the site is requested as part of the amended application. This tree removal is supported by the Arboricultural Impact Assessment and Tree Management Plan by Vertical Tree Management & Consultancy dated 10 June 2024, and the amended landscape plans by Paul Scrivener Landscape dated 10 December 2024. I also note from the Landscape and Ecology Joint Expert Report filed with the Court on 18 November 2024, that the proposed vegetation removal is considered acceptable when assessed against the Council’s controls.

19. The site is located within the Sydney Harbour Catchment pursuant to Ch 6 of the Biodiversity and Conservation SEPP. From the parties’ submission, the stormwater drawings, the Waste management Report by Smart Eco Group Pty Ltd dated 10 December 2024, and the amended architectural plans, I accept that the requirements of Ch 6 of the Biodiversity and Conservation SEPP relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met with the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).

Conclusion

20. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

21. As the parties’ decision is one that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

22. The Court notes:

1. The respondent, Ku-ring-gai Council, as the relevant consent authority, has approved, under s 38 of the Environmental Planning and Assessment Regulation 2021, the applicant amending Development Application No eDA0192/23 to include the following documents:

Drawing No and Revision/Issue	Title	Prepared by	Date
Architectural Plans
Sheet no 1, Rev [5]	Cover Page	Notch Design Studio	9.12.24
Sheet no 2, Rev [5]	Drawing List	Notch Design Studio	9.12.24
Sheet no 3, Rev [5]	General Notes & BCA Compliance	Notch Design Studio	9.12.24
Sheet no 4, Rev [5]	Location Plan	Notch Design Studio	9.12.24
Sheet no 6, Rev [5]	Site Plan	Notch Design Studio	9.12.24
Sheet no 7, Rev [5]	Site Analysis Plan	Notch Design Studio	9.12.24
Sheet no 8, Rev [5]	Demolition Work Plan	Notch Design Studio	9.12.24
Sheet no 9, Rev [5]	Site Details and Design Options	Notch Design Studio	9.12.24
Sheet no 10, Rev [5]	Site Details and Design Options	Notch Design Studio	9.12.24
Sheet no 11, Rev [5]	Site Details and Design Options	Notch Design Studio	9.12.24
Sheet no 12, Rev [5]	Built-upon Area and Building Envelope	Notch Design Studio	9.12.24
Sheet no 13, Rev [5]	Street Montage Concept Design	Notch Design Studio	9.12.24
Sheet no 14, Rev [5]	Proposed Façade Concept Design	Notch Design Studio	9.12.24
Sheet no 15, Rev [5]	Long Section – Through Basement	Notch Design Studio	9.12.24
Sheet no 16, Rev [5]	Long Section – Through Main Hallway	Notch Design Studio	9.12.24
Sheet no 17, Rev [5]	Long Sections Through Courtyard	Notch Design Studio	9.12.24
Sheet no 18, Rev [5]	Cross Sections – Through Main Living Area	Notch Design Studio	9.12.24
Sheet no 19, Rev [5]	Cross Section – Through Courtyard	Notch Design Studio	9.12.24
Sheet no 20, Rev [5]	Long Sections Through the Rear	Notch Design Studio	9.12.24
Sheet no 21, Rev [5]	Summary of Changes – Floor Plans	Notch Design Studio	9.12.24
Sheet no 22, Rev [5]	Summary of Changes – Sections	Notch Design Studio	9.12.24
Sheet no 23, Rev [5]	Basement Floor Plan	Notch Design Studio	9.12.24
Sheet no 24, Rev [5]	Ground Floor Plan	Notch Design Studio	9.12.24
Sheet no 25, Rev [5]	First Floor Plan	Notch Design Studio	9.12.24
Sheet no 26, Rev [5]	Roof Plan	Notch Design Studio	9.12.24
Sheet no 27, Rev [5]	GFA Calculations	Notch Design Studio	9.12.24
Sheet no 28, Rev [5]	Landscape Coverage Plan	Notch Design Studio	9.12.24
Sheet no 29, Rev [5]	Proposed Extent of Cut and Fill	Notch Design Studio	9.12.24
Sheet no 30, Rev [5]	Elevations	Notch Design Studio	9.12.24
Sheet no 31, Rev [5]	Elevations	Notch Design Studio	9.12.24
Sheet no 32, Rev [5]	Sections	Notch Design Studio	9.12.24
Sheet no 33, Rev [5]	Swimming Pool Plan	Notch Design Studio	9.12.24
Sheet no 34, Rev [5]	Swimming Pool Section	Notch Design Studio	9.12.24
Sheet no 35, Rev [5]	Retaining Wall Plan	Notch Design Studio	9.12.24
Sheet no 36, Rev [5]	Retaining elevations	Notch Design Studio	9.12.24
Sheet no 37, Rev [5]	Cross Ventilation – Basement Floor Plan	Notch Design Studio	9.12.24
Sheet no 38, Rev [5]	Cross Ventilation – Ground Floor Plan	Notch Design Studio	9.12.24
Sheet no 39, Rev [5]	Cross Ventilation – First Floor Plan	Notch Design Studio	9.12.24
Sheet no 40, Rev [5]	Materials and Finishes	Notch Design Studio	9.12.24
Sheet no 41, Rev [5]	June Shadow Diagrams – Existing	Notch Design Studio	9.12.24
Sheet no 42, Rev [5]	June Shadow Diagrams – Proposed	Notch Design Studio	9.12.24
Sheet no 43, Rev [5]	June Shadow Diagrams – 18 Coronga Cres	Notch Design Studio	9.12.24
Sheet no 44, Rev [5]	June Shadow Diagrams – 24 Coronga	Notch Design Studio	9.12.24
Sheet no 45, Rev [5]	Dec Shadow Diagrams – Existing	Notch Design Studio	9.12.24
Sheet no 46, Rev [5]	Dec Shadow Diagrams – Proposed	Notch Design Studio	9.12.24
Sheet no 47, Rev [5]	Window Schedule Sheet 1	Notch Design Studio	9.12.24
Sheet no 48, Rev [5]	Window Schedule Sheet 2	Notch Design Studio	9.12.24
Sheet no 49, Rev [5]	Window Schedule Sheet 3	Notch Design Studio	9.12.24
Sheet no 50, Rev [5]	Door Schedule Sheet 1	Notch Design Studio	9.12.24
Landscape Plans
Dwg no 1, Issue L	Landscape Site Plan	Paul Scrivener Landscape	10.12.24
Dwg no 2, Issue L	Details Plan	Paul Scrivener Landscape	10.12.24
Dwg no 3, Issue L	Planting Plan and Schedule	Paul Scrivener Landscape	10.12.24
Dwg no 4, Issue L	Site Context Plan	Paul Scrivener Landscape	10.12.24
Dwg no 5, Issue L	Garden Areas Plan	Paul Scrivener Landscape	10.12.24
Engineering Plans
Sheet S1, Issue 5	Stormwater Drainage Plan	MBC Engineering	31.10.24
Reports and Documents
Written Request made pursuant to cl 4.6 of the Ku-ring-gai Local Environmental Plan 2015, to vary the floor space ratio standard in cl 4.4(2A)		Maximus Developments Australia	10.12.24
Waste Management Report		Smart Eco Group Pty Ltd	10.12.2024
BASIX Certificate no. 1426008S_04		Bonnefin Consulting Pty Ltd	10.12.2024

23. The Court orders:

1. The applicant’s written request, prepared by Maximus Developments Australia dated 10 December 2024, made pursuant to cl 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP) to vary the floor space ratio standard in cl 4.4(2A) of the KLEP, is upheld.

2. The appeal is upheld.

3. Development Application No eDA192/23, as amended, for the demolition of existing structures and construction of a dwelling, swimming pool, spa, cabana and associated works at 20 Coronga Crescent, Killara, is determined by the grant of consent subject to the conditions at Annexure A.

E Washington

Commissioner of the Court

Annexure A

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Decision last updated: 15 January 2025