Moschella v Ku-ring-gai Council

[2025] NSWLEC 1491

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moschella v Ku-ring-gai Council [2025] NSWLEC 1491

Hearing dates:

Conciliation Conference on 10 June 2025

Date of orders:

10 July 2025

Decision date:

10 July 2025

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application eDA0265/24 for the construction of a new dwelling, swimming pool, integrated garage, landscaping and associated works at 11 Glen Road, Roseville NSW (Lot 6 DP 12001) is determined by the grant of development consent, subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – development application – detached dwelling house with swimming pool – integrated development – conciliation conference – agreement reached – orders made

Legislation Cited:

Biodiversity Conservation Act 2016, ss 7.2, 7.7

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 4.46, 4.47, 8.7

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

Water Management Act 2000

Biodiversity Conservation Regulation 2017

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 38

Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 5.21, 6.1, 6.2, 5.3, 6.5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2, 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, Sch 1

Category:

Principal judgment

Parties:

Adrian Moschella (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor) (Applicant)
C Shaw (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2024/470680

Publication restriction:

Nil

JUDGMENT

Introduction

1. COMMMISSIONER: 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 Integrated Development Application No. eDA0265/24 for the construction of a new dwelling, swimming pool, integrated garage, landscaping and associated works at 11 Glen Street, Roseville (Lot 6 DP 12001) by Ku-ring-gai Council.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference, which I presided over, was held on 10 June 2025.

Outcome

3. At the conciliation, 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.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the joint expert planning report and the plans that are referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. 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 (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 8 May 2025.

6. Subsequent to the conciliation conference it was identified that a small portion of the building (balcony roof in the eastern corner of the site) exceeded the maximum height limit. The applicant then amended the plans to delete the non-complying element and the respondent consent authority approved further amendment of the application in accordance with s 38(1) of the EPA Reg as reflected in the amended plans set out below:

Drawing Number	Issue	Drawing Name	Date
DA00	C	Calculation sheet / cover page	10.06.25
DA01	D	Site Plan	11.06.25
DA03	D	Ground level plan	11.06.25
DA06	C	Northern elevation	10.06.25
DA07	C	Eastern elevation	10.06.25
DA08	C	Southern elevation	10.06.25
F01	C	GFA Calculation & Floor Plate Diagram	10.06.25

7. Accordingly, the amended plans as agreed are listed under Condition 1 of the conditions of consent at Annexure A.

8. The amendments made, and additional information provided during the conciliation process, which gave rise to the agreement (and which resolved the Respondent’s contentions) primarily related to:

1. Engineering report addressing the additional survey information collected, updates to the overland flow model, pre-development and post-development results as well as the measures to be implemented to alleviate any floodings concerns

2. More detailed and additional civil engineering plans to address the findings of the engineering report, including a revision of the height and position of the garden bed wall and additional details for the regrading of the existing driveway

3. Amended architectural drawings to address the exceedance of the maximum floor space ratio, as well as to address the findings of the engineering report, and

4. Additional surveying undertaken with details of the investigations including on the amended drawings and in the engineering report.

Jurisdictional matters

9. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

Ku-ring-gai Local Environmental Plan 2015

10. The subject site is zoned part C2 Environmental Conservation and part C4 Environmental Living under Ku-ring-gai Local Environmental Plan 2015 (KLEP). Development for the purposes of a residential dwelling is permissible in the C4 Environmental Living zone on which the dwelling house is proposed. Further the proposed environmental protection works are permissible in the C2 Environmental Conservation zone without consent.

11. The development has regard to the objectives of the C2 Environmental Conservation and C4 Environmental Living zones as required by cl 2.3 of KLEP.

12. The proposed development complies with the maximum height of building development standard set out in cl 4.3 of KLEP which provides for a maximum height of 9.5m. The proposal has a maximum height of 9.5m as shown on the plans and therefore complies.

13. The proposed development complies with the floor space ratio development standard set out in cl 4.4 of KLEP which provides for a maximum Floor Space Ratio (FSR) of 0.1783:1 for the land in the C4 Environmental Living zone. The parties advise that the proposal, as amended, has a floor space ratio of 0.1783:1 and therefore complies.

14. I am satisfied on the basis of the parties’ agreement, the engineering report (Martens, 6 May 2025), the amended plans and the recommended conditions of consent that adequate consideration has been given to the matters outlined in cl 5.21 of KLEP in respect of Flood Planning and that the relevant requirements have been satisfied.

15. I am also satisfied that in accordance with cl 6.1 an acid sulfate soils management plan is not required for the proposed development having regard to the Geotechnical Report (Davies Geotechnical, 8 October 2022) and the Geotechnical Assessment of Groundwater Conditions (ACT Geotechnical Engineers, 19 August 2024).

16. In respect of cl 6.2 Earthworks I am satisfied on the basis of the parties’ agreement and the recommended conditions of consent that consideration has been given to the matters required to be considered prior to the granting of development consent having regard to the proposed plans, Engineering Report (Martens, May 2025) and recommended conditions of consent.

17. In relation to cl 6.3 Biodiversity Protection I note that a Streamlined Biodiversity Development Assessment Report (Streamlined BDAR) (Narla Environmental, July 2024) has been prepared as part of the land is identified as ‘Biodiversity’ on the Terrestrial Biodiversity Map. On the basis of the Streamlined BDAR I am satisfied that the matters outlined in cl 6.3 have been adequately considered.

18. I am also satisfied that cl 6.5 Stormwater and water sensitive urban design has been satisfied on the basis of the civil plans (Henry and Hymas), the Engineering Report (Martens, May 2025) and recommended conditions of consent.

State Environmental Planning Policy (Resilience and Hazards) 2021

19. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). The parties agree that the site has a long history of residential use surrounded by natural bushland and therefore contamination is considered unlikely. No further investigation in accordance with the SEPP is therefore required.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

20. The site is located within the Sydney Harbour Catchment in accordance with the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP). Chapter 6 of the BC SEPP requires consideration of the impacts of development on land located within the Sydney Harbour Catchment, which is a ‘regulated catchment’. Part 6.2 precludes the grant of consent to development on land in a regulated catchment unless the consent authority is satisfied as to various matters relating to: water quality and quantity, aquatic ecology, flooding, recreation and public access, and total catchment management.

21. I am satisfied, on the basis of the agreement of the parties, the civil plans (Henry and Hymas), the engineering report (Martens, May 2025), the (Streamlined BDAR) (Narla Environmental, July 2024) and the conditions of consent that the effect of the proposed development on the quality of water entering a natural waterbody will be neutral or beneficial and the impact on water flow in a natural waterbody will be minimised (s 6.6(2)). Further I accept that the proposal will not have any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; will not have a direct, indirect or cumulative adverse impact on aquatic reserves; will not impact land abutting a natural waterbody or the sedimentation of a natural waterbody; and does not affect any wetlands (s 6.7). The proposal is also very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s 6.8); does not affect public access to and from natural waterbodies (s 6.9); and is not likely to have an adverse environmental impact on any adjacent local government area (s 6.10).

State Environmental Planning Policy (Sustainable Buildings) 2022

22. The proposal is BASIX affected development in accordance with Sch 7 of the EPA Reg and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP) apply. An amended BASIX Certificate has been submitted prepared by Urban Zeromatrix (Certificate Number 1302237S_05 dated 20 April 2025) as required by s 27 of the EPA Reg.

Other Matters

23. The subject land is identified as bush fire prone land for the purposes of s 4.14 of the EPA Act. Accordingly, a Bushfire Assessment Report has been prepared (CR Bushfire, 28 May 2024) which confirms, as required, that the proposal complies with Planning for Bush Fire Protection (NSW Rural Fire Service). Further advice and recommended conditions were provided by the NSW Rural Fire Service in respect of the matter on 7 August 2024 and 18 June 2025. The RFS has advised that it has no objection to the proposal and I am therefore satisfied in respect of the relevant requirements.

24. The proposal is integrated development in accordance with s 4.46 of the EPA Act as an approval is required under the Water Management Act 2000. Water NSW provided its General Terms of Approval (GTAs) for the proposed development on 15 October 2024 and updated GTAs on 19 May 2025. The GTAs are included in the recommended conditions of consent therefore I am satisfied in respect of s 4.47 of the EPA Act.

25. Part of the site is mapped on the Biodiversity Conservation Regulation 2017 ‘Biodiversity Values Map’ however as outlined in the Streamlined BDAR (Narla Environmental, July 2024) the proposal is not likely to significantly affect threatened species as defined in s 7.2 of the Biodiversity Conservation Act 2016 (BC Act). Further s 7.7 of the BC Act is satisfied by the Streamlined BDAR.

26. The development application is made by the owner of the land in accordance with s 23 of the EPA Reg.

27. The Respondent notified the original development application between 2 and 30 August 2024. No submissions were received.

Conclusion

28. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

29. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

30. The orders of the Court are:

1. The appeal is upheld.

2. Development Application eDA0265/24 for the construction of a new dwelling, swimming pool, integrated garage, landscaping and associated works at 11 Glen Road, Roseville NSW (Lot 6 DP 12001) is determined by the grant of development consent, subject to the conditions set out in Annexure A.

H Miller

Acting Commissioner of the Court

Annexure A (326 KB, pdf)

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Decision last updated: 10 July 2025