Random Primer Pty Ltd v Ku-ring-ai Council

[2025] NSWLEC 1564

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Random Primer Pty Ltd v Ku-ring-gai Council [2025] NSWLEC 1564

Hearing dates:

29-30 April 2025, 27 May 2025 and 31 July 2025

Date of orders:

07 August 2025

Decision date:

07 August 2025

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as agreed or assessed, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act1979 (NSW).

(2) The appeal is upheld.

(3) Development consent is granted to development application DA0532/22, for the demolition of existing structures and construction of a residential flat building comprising 13 apartments, basement parking, landscaping and associated works at 26 Pacific Highway, Roseville NSW 2069 (Lot F, DP 407044).

(4) All exhibits are returned excepts for Exhibits A, B and H.

Catchwords:

DEVELOPMENT APPLICATION: residential apartment development – residential flat building in R4 high Density Residential zone – stormwater management – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 8.7, 8.15

Environmental Planning and Assessment Regulation 2021 (NSW), ss 29, 38

Ku-ring-gai Local Environmental Plan 2015, cll 2.2, 4.3, 4.6, 6.1, 6.5, 6.6, 7.2

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, ss 6.6, 6.7, 6.9

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Housing) 2021, ss 147, 148, Sch 9

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002, Pt 2, Sch 1

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.118, 2.119, 2.120

Texts Cited:

Apartment Design Guide 2015

Ku-ring-gai Development Control Plan 2024

Category:

Principal judgment

Parties:

Random Primer Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
P Tomasetti SC/J Y Li (Applicant)
K Gerathy (Solicitor) (Respondent)

Solicitors:
CKDS (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2024/232723

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: Residential apartment development is proposed on a site on the western side of the Pacific Highway, close to the Roseville Railway Station, known as 26 Pacific Highway.

2. To this end, development application No. 0532/22 seeking consent for such development was lodged by the Applicant in these proceedings, Random Primer Pty Ltd, with Ku-ring-gai Council (the Council) on 20 December 2022.

3. The development application was notified for a period of 30 days in accordance with the Ku-ring-gai Community Participation Plan from 29 December 2022, and notified again on three further occasions following amendment of the development application.

4. As the development application was not otherwise determined, Random Primer filed an appeal against the deemed refusal in Class 1 of the Court’s jurisdiction on 24 June 2024 in accordance with s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). On 27 June 2024, the Ku-ring-gai Planning Panel refused the development application, on behalf of the Council.

5. The matter was listed before me for hearing 29-30 April 2025. On the second and final day of the hearing, Random Primer, advised the Court of further amendments that the parties agree would wholly resolve the matters in dispute and, subject to an adjournment for the preparation of amended plans and notification of Council’s intent to seek orders by consent of the parties, the matter could be concluded in such a manner.

6. The Court granted the adjournment, and directed that certain documents be filed and served according to a timetable initially agreed by the parties.

7. When the hearing resumed on 31 July 2025, Random Primer sought leave to further amend the development application by the tender a bundle of documents (Exhibit H) comprising:

1. Written consent of the owners of 4 Maclaurin Parade for lodgement of the development application, dated 28 May 2025.

2. Amended Stormwater plans prepared by Henry & Hymas dated 2 May 2025.

3. A survey of the existing stormwater drainage pipe in respect of the existing easement on the land at 4 Maclaurin Parade, and at 8-12 Nola Road, prepared by CMS Surveyors dated 10 June 2025.

8. The upshot of all this is that the development application, as now amended, seeks consent for the following:

1. Demolition of a former residential care facility that is now vacant;

2. Construction of a residential flat building comprising 13 apartments over basement car parking;

3. Widening of an existing driveway to allow for two-way traffic into the proposed basement and to provide a reciprocal right of way in favour of the property to the south of the subject site, known as 26A Pacific Highway;

4. Construction of stormwater drainage system comprising on-site detention tank with drainage to be given effect by use of existing infrastructure and existing drainage easements over properties located behind the subject site, and works within the easement;

5. Tree removal and landscaping;

6. Dedication of 136.65m² of the site to Transport for NSW for the purposes of future road widening;

7. To either modify the existing easements or, in the alternative, to ensure that the pipeline is wholly within the easement, or to obtain an appropriate easement that is consistent with the existing pipeline.

The site and its context

9. The site, legally described as Lot F in DP 407044, is generally rectangular, with a frontage to the Pacific Highway of 27.735m, a depth of around 61m, and a total site area of 1,687.8m².

10. The site is located close to the intersection of the Pacific Highway and Maclaurin Parade to the north.

11. An existing driveway to the south of the subject site is a right of way that provides access to a battle-axe site located to the rear of the subject site, on which stands a residential flat building known at 26A Pacific Highway known as ‘Maclaurin Court’ that also benefits from a right of way over a property to the north known as 4 Maclaurin Parade.

12. The site itself has a fall of 4.7m when measured from the front of the site to its rear of the site to the west. The land drops further just beyond the western boundary to the site, in the form of a sloping sandstone retaining wall that falls to a driveway providing access for vehicles from Maclaurin Court to exit onto Maclaurin Parade. Beyond that, a bitumen driveway that appears to be shared by Maclaurin Court and 4 Maclaurin Parade falls further to the west, before another steep drop down to 8-12 Nola Road.

13. An adjoining site to the south of the subject site is known as 22 Pacific Highway, on which stands a 3-storey residential flat building.

14. To the west of the site, behind Maclaurin Court, is a residential flat building known as 8-12 Nola Road, Roseville, that is also burdened by an easement for drainage along its north western boundary.

15. The site is identified by the relevant Zoning Map at cl 2.2 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP) as being located within two zones. A majority of the site is located within the R4 High Density Residential zone, in which development for the purpose of residential flat buildings is permitted with consent, and where the objectives of development are:

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

•  To provide a variety of housing types within a high 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 high density residential housing close to public transport, services and employment opportunities.

16. A smaller portion of the site adjoining the road reserve measuring between 4.7-5.10m in width is zoned SP2 Infrastructure for the purpose of road widening, with objectives as follows:

•  To provide for infrastructure and related uses.

•  To prevent development that is not compatible with or that may detract from the provision of infrastructure.

The height standard is exceeded

17. The proposed development exceeds the height standard of 11.5m, applicable to the site at cl 4.3 of the KLEP, and Random Primer relies on a written request authored by Mr Nick Juradowitch of Ingham Planning dated March 2025 (the Height Request) (Exhibit A, Tab 7) in accordance with cl 4.6 of the KLEP.

18. The Height Request identifies an exceedance of the height standard at two locations in the proposed development:

1. The lift overrun measures a height of 12.34m, and

2. A small area of parapet to the south west of the building measures a height of 11.665m.

19. The height request asserts that compliance with the height standard is unreasonable or unnecessary as the objectives of the standard are achieved, notwithstanding the non-compliance.

20. The relevant objectives of the height standard, at cl 4.3 of the KLEP are:

(a)  to ensure that the height of buildings is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai centres,

(b)  to establish a transition in scale between the centres and the adjoining lower density residential and open space zones to protect local amenity,

(c)  to enable development with a built form that is compatible with the size of the land to be developed.

21. In summary, the Height Request asserts that the objectives are achieved because, firstly, the height is appropriate to the Roseville urban centre when the footprint and elevation of the exceedance is understood to be minor, and where the exceedance is due, in part, to the slope of the land. Secondly, the height of the proposal is compatible with adjoining development and development nearby, and is not in the vicinity with a lower density zone that would require transition. Thirdly, the area of the site is greater than the minimum size of 1200m² required by cl 6.6 of the KLEP and the proposed development is consistent with the predominant scale of 3 storey buildings in the area.

22. On the basis of those reasons set out in the Height Request, I accept the proposed development is consistent with the objectives of the height standard notwithstanding the non-compliance, and I am satisfied that compliance with the 11.5m standard is unreasonable or unnecessary in the circumstances of the case.

23. Next, the Height Request advances environmental planning grounds said to be sufficient to justify the contravention of the height standard, summarised in the following way:

1. The exceedance does not result in environmental impact, and is largely a consequence of the slope of the land.

2. While the development application was lodged in December 2022, the current planning regime permits building heights of up to 22m on land within 400m of the Roseville Railway Station.

3. The proposal represents public benefits such as:

1. The removal of built form from that part of the site that is subject to road widening, and improved streetscape presentation when potential road widening is considered.

2. Replacement of an existing building with a built form that is consistent with the predominant 3 storey scale of existing development in the area, and a reduction in floor space ratio and site coverage.

3. Improvement to the vehicular access to and from the Pacific Highway from the existing conditions, by widening the driveway access to overcome kerbside queuing on a classified road.

24. While a number of the environmental planning grounds clearly seek to promote the benefit of development as a whole, and not the particular aspect to which the Height Request is directed, I accept that the exceedance is minor, does not impose an environmental impact on neighbouring properties, and is partly due to the slope of the land on the site. As such, I am satisfied there are environment planning grounds sufficient to justify the contravention of the height standard.

25. Finally, the Height Request asserts consistency with the objectives of the zone, at [15]-[16], because the development:

1. Provides contemporary low-rise, high density housing within an established precinct of low rise apartment buildings, and where a height of 11.5m is considered conservative for an area zoned R4 High Density Residential.

2. More recent planning changes would appear to encourage the uptake of greater height in such close proximity to the Roseville Railway Station, where demand is for 2-bedroom apartments such as that proposed in this case.

26. I note here that the Council is satisfied that the height request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the KLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development in the R4 Zone.

27. Furthermore, the Council does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the KLEP.

28. Accordingly, the Council raises no issue regarding cl 4.6 and accepts that a variation of the height development standard under cl 4.3 is justified.

29. I am satisfied under cl 4.6(4) that the height request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development within the R4 Zone, for the reasons given in the request.

30. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the KLEP and I find there are no grounds on which the Court should not uphold the height request.

Stormwater drainage

31. The proposal seeks consent to utilise an existing easement that burdens the two properties at 4 Maclaurin Parade and 8-12 Nola Road, Roseville. It is uncontroversial to observe that the easement provides a path that falls with the natural topography of the land, albeit somewhat circuitously given the arrangement of lots in the area.

32. In broad terms, the stormwater drainage initially proposed and depicted in plans prepared by Henry & Hymas (Exhibit B, Tab 24) directs stormwater to the rear of the site where it is stored in an OSD tank before being disposed of to the west – firstly to a pit on the subject site, and from there, to an existing stormwater pit and pipe on land owned by 4 Maclaurin Parade at the base of the sloping sandstone retaining wall cited at [12].

33. In considering the matters of stormwater management, the Court was assisted by experts in civil engineering, Mr Frank Zhou on behalf of Random Primer, and Mr Ross Guerrera on behalf of the Council. The experts conferred on the contention set out in the Amended Statement of Facts and Contentions authored by the Council (Exhibit 1), and filed a joint expert report with the Court on 22 April 2025 (Exhibit 5).

34. CCTV investigation of the existing pipe has been undertaken on a number of occasions. Most relevantly:

1. On 12 November 2024, HIFLOW investigated sections between Pit 2 and the pipe said to be located to the northern boundary of 8-12 Nola Road, described in a letter prepared by HIFLOW dated 29 April 2025 (Exhibit F).

2. Between 8-10 January 2025, L.J.K Plumbing investigated sections along the northern boundary of 8-12 Nola Road, to the Council pit in Nola Road, documented in a letter prepared by Mr Jong Kee, Lim of L.J.K Plumbing (Plumbing letter) (Exhibit E).

35. A virtually identical schematic plan of the pipe layout and cadastre is attached to the letters authored by HIFLOW and L.J.K Plumbing with annotations as to pipe size, and CCTV footage.

36. CCTV footage undertaken by HIFLOW and L.J.K Plumbing was tendered by the Council in .MOV format (Exhibit 8).

37. I have viewed the CCTV footage and I accept the consensus of the parties, and their experts, that the CCTV footage indicates pipework free of obstructions and seemingly operating well, and that an easement is in effect to provide for the disposal of stormwater to Nola Road.

38. I have also considered the Amended Stormwater plans prepared by Henry & Hymas and survey of the existing stormwater drainage pipe on the land at 4 Maclaurin Parade, and at 8-12 Nola Road. The existing pipe is not wholly within the easement, and the parties propose that operation of any consent be deferred until a new easement can be registered.

39. On the basis of the amended plans and other documents at [7], I accept that the stormwater arrangements proposed on the subject site demonstrate that a connection to the existing pipe and pit network, via a new pit identified on the stormwater plans as Pit 2, so that stormwater may be disposed of in terms consistent with cl 6.5 of the KLEP, and with the provisions contained in Part 24 of the Ku-ring-gai Development Control Plan 2024 (KDCP) that deals with Water Management.

40. Furthermore, the stormwater arrangements depicted in the Stormwater Plans for the subject site appear well considered, and provides for onsite detention (OSD), and water quality treatment devices. The arrangement is supported by MUSIC modelling that quantifies the degree of improvement in water quality by the reduction of pollutants.

41. Section C of the KDCP determines stormwater requirements according to development types defined at Part 24A.1. As the proposal is for residential apartment development, Part 24A.1 defines the stormwater management as Type 5, being any development involving three or more dwellings on one allotment, regardless of the size of the allotment and regardless of whether the dwellings are attached or detached. Includes seniors housing, multi-dwelling housing and residential flat buildings.

42. Part 24A.2 also sets out locational designations for water management depending on the characteristics of the site and the proposed development. The applicable Locational designation is Location D, for reasons described as follows:

“Any other land, being land that is to pass its stormwater over one or more intervening downstream private properties or public land to reach a recognised drainage system in a road reserve, drainage reserve or waterbody. This includes land where a private drainage easement is required (whether or not this has been obtained) and properties that are traversed by or immediately adjoining a trunk drainage system where there is no existing legal right to connect to the system.”

43. Next, the provisions at Section C, Part 24B of the KDCP include objectives that relevantly provide:

…

3 To minimise the adverse impact of stormwater runoff on neighbouring properties.

4 To ensure adverse impacts are not increased beyond what was present prior to the development.

5 To minimise the adverse impact of stormwater runoff on the natural environment

44. The General controls at Part 24B include, relevantly:

1. Stormwater is to be discharged from the site in accordance with the controls for the relevant location category, as identified in Part 24A of this DCP.

Note: Where Council drainage easement is designed to only convey “roadwater”, the terms of the easement is to be legally updated to allow for the site drainage connection.

…

4. In the selection of the means of stormwater disposal, particular regard is to be given to downstream impacts.

45. Stormwater disposal from properties designated Location D is dealt with at Part 24B.5, which Council submits supports its contention that Random Primer must demonstrate the pipe and pit infrastructure relied on in the circumstances of this case is located within an easement.

Council requires that stormwater is discharged from a site in a controlled manner under gravity to a recognised public drainage system. Accordingly, where this could be achieved but for the existence of another property downstream, Council will require that, where possible, an interallotment easement for drainage be utilised to legally provide a controlled gravity drainage solution as far as the nearest available recognised public drainage system.

…

46. The updated survey at [7(3)] shows the existing pipe drainage departing from the easement in two locations.

47. The updated survey plan demonstrates that the pipe is not wholly within the easements. The parties jointly submit that a deferred commencement condition, consistent with Section 24B.5 (6) of the KDCP, at Condition A in the following terms is appropriate

A. Drainage easement relocation - Inter-allotment drainage

Where the survey investigations of the pipes located at 4 Maclaurin Parade and 8-12 Nola Road (Strata Plan 11432 and Strata Plan 83345, respectively) which are relied upon to drain the site as part of the stormwater drainage system confirm that the existing pipelines are not located within the existing 1.525m width easements burdening 4 Maclaurin Parade and 8-12 Nola Road and benefiting 26 Pacific Highway (Existing Easements), then the Existing Easements must be extinguished, or modified, and a new or modified easement for drainage created.

Documentary evidence must be submitted to Council, demonstrating that the existing drainage easement traversing 4 Maclaurin Parade and 8-12 Nola Road that benefits 26 Pacific Highway has been extinguished, or modified, and a new or modified drainage easement is created over the as-built stormwater pipeline, benefiting the Site. A plan must be prepared demonstrating the easement, for Council's approval.

The authority empowered to modify, vary or release the restriction on use of land is Ku-ring-gai Council. The terms of the instrument are to be to the satisfaction of Council.

This Development Consent will not operate until evidence is submitted to Council, demonstrating that the existing drainage easement traversing 4 Maclaurin Parade and 8-12 Nola Road that benefits 26 Pacific Highway has been extinguished, or modified, and a new or modified drainage easement is created over the as-built stormwater pipeline, benefiting the site. This documentation must include evidence that the old easement has been extinguished or modified and a new, or modified, easement has been registered with NSW Land Registry Services.

Reason:    To ensure that provision is made for stormwater drainage from the site in a proper manner that protects adjoining properties.

48. Discharge of stormwater into an existing easement is likewise addressed within Part 24B.5 of the KDCP in the following terms:

Discharge to an existing interallotment drainage easement

The development application is to:

1. Demonstrate to Council the existence of the interallotment drainage easement that allows the site to drain by gravity as far as a recognised and appropriate public drainage system. This will require provision of the title documents for the affected properties and the subject property. Such title documents are available from the Land and Property Information NSW.

2. Include either:

i) documentation from a registered surveyor or qualified engineer demonstrating the existence of either suitable drainage infrastructure within the easement system to be utilised (capacity and condition); or

ii) a scale plan showing the proposed drainage infrastructure to be placed in the existing easement to drain the subject site. Note: In the event that the existing easement or piped system is not satisfactory in terms of capacity or length, Council will require the system to be upgraded or extended (Refer to 24R.2 of this Part).

49. Further on in Part 24B.5, the provisions advise that where development application is to be approved, it will be on a deferred commencement basis with the registration of the interallotment drainage easement with Land and Property Information NSW (LPI) completed before the consent becomes operational. (p 24-21)

50. A note at the introduction to Part 24B advises that the provisions contained therein are also to be read in conjunction with Part 24R.2: Design of Property and Interallotment Drainage systems, which describes the requirements for the design and construction of interallotment drainage systems.

51. While the chapeau to Part 24R.2 appears to deal with new easements, the Council submits that the provisions also act as a guide where upgrade is required, or more specifically, in the event that the existing pipe infrastructure is not wholly located within the existing easement and so works may be required to relocate the pipe infrastructure, or the easement modified in terms consistent with Controls 27 and 34 of the Part 24R.2.

52. As such I find the proposed condition of consent at [47] to adequately provide for a stormwater drainage system that adequately addresses the relevant objectives and controls found in the KLEP and the KDCP.

53. It is also relevant that the site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map.

54. As such, Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies.

55. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

56. Given the stormwater arrangements described at [40], I am satisfied that the effect of the proposal on the quality of water entering Sydney Harbour will be as close as possible to neutral or beneficial, and the impact on water flow in a natural waterbody is minimised.

57. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied, there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and no adverse impact on aquatic reserves, or in terms of erosion.

58. Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

Other jurisdictional preconditions

59. The site is identified as Class 5 Acid Sulfate Soil, according to the relevant map at cl 6.1(2) of the KLEP. However, the site is not within 500m of soil of another class, and the survey plan prepared by True North Surveys (Exhibit B, Tab 12) shows the elevation of the land is such that excavation is not likely to lower the water table.

60. The development proposes excavation for the purpose of the basement. A Geotechnical Investigation Report prepared by Geo-environmental Engineering dated 28 October 2021 assesses the subsurface conditions and recommends excavation support and methods to address groundwater seepage. As stated earlier, the Stormwater Plans propose an arrangement to address drainage patterns on the site, and Landscape Plans prepared by Site Image (Exhibit D, Tab 3), when read in conjunction with the architectural plans (Exhibit A, Tab A), depict an extent of earthworks on the site that are unlikely to result in adverse off-site impacts. On the basis of those preceding documents, I consider those matters at cl 7.2(3) of the KLEP in respect of earthworks to be satisfactorily addressed.

61. As noted at [9], the width of the site frontage to Pacific Highway is 27.735m, which complies with the provision relevant to residential flat buildings at cl 6.6(2)(a) of the KLEP.

Residential apartment development is proposed

62. As the proposed development is residential apartment development, the Court is required by s 147 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) to consider the quality of the design of the development, evaluated in accordance with the design principles at Sch 9.

63. I am somewhat assisted in so doing by a statement dated 18 March 2025 (Exhibit A, Tab 6) prepared largely in accordance with s 29 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) that attests Mr Lee Hughes (Arch Reg No. 6486) directed the design of the proposal, and sets out the means by which the design principles have been applied in the proposed development and how the objectives in 3 and 4 of the Apartment Design Guide 2015 (ADG) are addressed. While there is no requirement to do so, Mr Hughes also provides commentary on Part 2 of the ADG, notwithstanding the purpose of that Part is to inform the strategic planning process when preparing planning controls (Exhibit 2, folio 463).

64. For completeness, I also note Mr Hughes claims to derive the design quality principles from Pt 2 of State Environmental Planning Policy No.65 – Design Quality of Residential Flat Development 2002. This may be a reference to Pt 2 of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002 (SEPP 65). If so, it appears relevant that Pt 2 was repealed 17 July 2015 when the Design Quality Principles were constituted as Sch 1 of SEPP 65. It is, of course well known to all architects in NSW that the relevant principles are found in Sch 9 of the Housing SEPP. While Mr Hughes’ citation is in error, the principles are in the correct form, as are the Parts of the ADG.

65. On the basis of the statement, I am satisfied the development as proposed meets the requirements set out in s 148 of the Housing SEPP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

66. As the proposed development proposed excavation and other works within 2m of electricity distribution poles, the development was referred to the electricity supply authority Ausgrid, in accordance with s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP). Ausgrid requirements are incorporated into the agreed conditions of consent.

67. As the site includes land reserved for the purposes of a classified road, being the land zoned SP2, s 2.118 of the Infrastructure SEPP requires concurrence of Transport for NSW (TfNSW). In a letter dated 21 July 2022, TfNSW confirmed that the proposal is, in short, beneficial to a ‘new future proposal that impacts the area’.

68. Relatedly, as the site has a frontage to the Pacific Highway, s 2.119 of the Infrastructure SEPP also applies to preclude the grant of consent unless the consent authority, or in this case the Court hearing the appeal, is satisfied as to access to and from the classified road, and of the safety, efficiency and ongoing operation of the classified road, and matters of traffic noise and vehicle emissions (subs (2)).

69. The site has a frontage to the Pacific Highway which is a classified road. As there is no other practical or safe vehicular access to the land, such access is to be from the Pacific Highway. A Revised Transport Assessment prepared by ARC Traffic and Transport dated 23 January 2025 (Exhibit A, Tab 4) assesses traffic generated by the proposed development to be less than that generated by the previous use on the site.

70. A letter from TfNSW dated 4 July 2023 (Exhibit 2, folio 1184) provides concurrence subject to terms set out in the letter, including a requirement for the proposed development to be designed to mitigate traffic noise in accordance with s 2.120 of the Infrastructure SEPP.

71. An Acoustic Assessment prepared by Norrebro dated 14 June 2023 (Exhibit B, Tab 18) records noise logs taken at the front of the site, and provides recommendations as to glazing, floor and wall construction to achieve the levels required by s 2.120(3) of the Infrastructure SEPP.

72. On the basis of the terms required by TfNSW at [70], found at Condition 2 of the agreed conditions of consent, and the recommendations contained in the Acoustic Assessment, I am satisfied that the vehicular access to the land is safe, and that the efficiency and ongoing operation of the Pacific Highway will not be adversely affected by the proposal as a result of the design of the vehicular access, or the emissions of smoke or duct from the development, of the nature, volume of frequency of vehicles used the Pacific Highway to gain access to the land, in accordance with s 2.119(2) of the Infrastructure SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

73. I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP). On the basis of the investigations undertaken and conclusions contained in the DSI, and the agreed conditions of consent that deal with unexpected finds, I am satisfied the site can be made suitable, following remediation, for the purpose for which development is proposed to be carried out.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

74. The application is accompanied by a BASIX certificate (Cert No. 1335398M_07 prepared by Certified Energy and dated 30 July 2025) in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

75. As the development application was lodged in December 2022, the savings and transitional provisions at s 4.2 of the State Environmental Planning Policy (Sustainable Buildings) 2022 serves to save the proposal from its application.

Objector submissions

76. Public submissions received in response to the notification of the development application cited at [3] are contained in the Council bundle (Exhibit 2, Tab 24), and in the Notice of Objectors, filed with the Court on 23 April 2025 (Exhibit 7).

77. In very broad terms, the public submissions object to the proposal on the basis of vehicular access and parking, construction-related impacts, built form and stormwater provision.

78. During the onsite view, residents of Maclaurin Court addressed the Court with objections that were primarily in respect of the entry from Pacific Highway, the driveway and vehicular movements, existing overland flow and flooding from the development currently on the site, and impacts of the proposal on existing utilities infrastructure servicing Maclaurin Court.

79. In respect of those concerns related to the entry from Pacific Highway, the driveway and vehicular movements, I note the Revised Transport Assessment sets out responses to particulars formerly contended by the Council with a high degree of commonality with public submissions on this point.

80. The responses satisfy me that the width of the driveway is sufficient to permit vehicles to pass and access the basement car park on the subject site. Within the basement I note a washbay/loading bay is provided, unlike the current arrangement where service vehicles park alongside the existing single lane driveway.

81. For reasons set out at [37]-[58], I am satisfied that the proposed stormwater arrangements are appropriate for the site, and are likely to improve the experience of residents of Maclaurin Court during heavy rain.

82. On the basis of the agreed conditions of consent, including the general terms provided by TfNSW cited at [70], the modified driveway, kerb and gutter construction details are to conform to TfNSW requirements.

Conclusion

83. For the reasons above, I find the development application deserving of the grant of consent, subject to conditions of consent that are agreed between the parties.

84. I note that the Council, as the relevant consent authority, approves the amending of the development application in accordance with s 38 of the EPA Regulation by the amended plans and other documents at Exhibit H subject to Random Primer paying the Council costs thrown away in accordance with s 8.15(3) of the EPA Act.

Orders

85. The court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments, as agreed or assessed, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

2. The appeal is upheld.

3. Development consent is granted to development application DA0532/22, for the demolition of existing structures and construction of a residential flat building comprising 13 apartments, basement parking, landscaping and associated works at 26 Pacific Highway, Roseville NSW 2069 (Lot F, DP 407044)

4. All exhibits are returned excepts for Exhibits A, B and H.

T Horton

Commissioner of the Court 

Annexure A (504 KB, pdf)

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Amendments

29 August 2025 - Amended Respondent name in the case name and amended Respondent's representative name

Decision last updated: 29 August 2025