Shabbir v Ku-ring-gai Council

[2025] NSWLEC 1462

Land and Environment Court

New South Wales

Medium Neutral Citation:

Shabbir v Ku-ring-gai Council [2025] NSWLEC 1462

Hearing dates:

Conciliation Conference 23 June 2025

Date of orders:

27 June 2025

Decision date:

27 June 2025

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application eDA0166/23, as amended, for construction of a dwelling house with basement car parking, swimming pool, pickleball court and associated landscape works including retaining walls and tree removal at 195-197 The Comenarra Parkway, Wahroonga, is determined by the grant of consent subject to the conditions contained in Annexure A.

Catchwords:

APPEAL – residential development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, ss 7.2, 7.4, 7.7, 7.13

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 8.7, 8.10, 8.14

Land and Environment Court Act 1979, ss 17, 34, 34AA

Biodiversity Conservation Regulation 2017, cl 7.2,7.3

Environmental Planning and Assessment Regulation 2021, s 38

Ku-ring-gai Local Environmental Plan 2015, cll 4.3, 4.4, 6.1, 6.2, 6.3, 6.5, 6.11

State Environmental Planning Policy (Biodiversity and Conservation) 2021, pt 6.2, ss 6.6, 6.7

State Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy (Resilience and Hazards) 2021

Category:

Principal judgment

Parties:

Azhar Shabbir (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
T To (Applicant)
C Shaw (Solicitor) (Respondent)

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

File Number(s):

2024/460776

Publication restriction:

Nil

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application (eDA0166/23) (Development Application) seeking consent for the construction of a dwelling house with basement car parking, swimming pool, tennis court and associated landscape works including retaining walls and tree removal on land identified as Lot 50 in Deposited Plan 880017, also known as 195-197 The Comenarra Parkway, Wahroonga (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Development Application

3. The Development Application was lodged with the respondent on 5 February 2024.

4. The Development Application was notified to owners and occupiers of surrounding properties from 27 February to 12 March 2024. No submissions were received during the notification period.

5. On 16 June 2024, the Development Application was determined by way of refusal.

6. On 11 December 2024, the proceedings were commenced by the applicant, being within the appeal period prescribed by s 8.10 of the EPA Act.

7. On 28 January 2025, the applicant was granted leave to amend its Development Application (January Amendments) and the matter was listed for a conciliation conference under s 34AA(2)(a) of the LEC Act on 23 and 24 June 2025. The January Amendments relevantly included:

1. revisions to proposed landscaping on the Subject Land, including:

1. reduction of lawn area; and

2. subsequent increase to offering of shrub, hedge, fern and feature trees as per ecology recommendations;

2. reduction of tennis court (proposed instead as a “pickleball court”) by 170.28m²;

3. alterations to streetscape presentation and materiality of dwelling proposed, including:

1. introduction of warmer main and secondary render colours;

2. increased depth of double carport area to 5400mm;

4. reduction of pool coping by 220mm –to be maximum 500mm above ground level at its highest point;

5. increased setback to eastern boundary by an additional 2.28m (through reduction in tennis court size – now pickleball court); and

6. alterations to stormwater pits/pipe placement to avoid tree roots and further information provided on rainwater tank.

8. On 13 February 2025, the respondent filed its statement of facts and contentions.

9. The parties’ experts then completed joint conferencing, and the following joint reports were prepared and filed with the Court:

1. Joint Town Planning Report prepared by Mr Alli Hammoud and Ms Tamara West filed 16 May 2025 (Joint Planning Report);

2. Joint Arboricultural/Ecological Report prepared by Mr Ross Jackson, Mr Alex Fraser, Ms Fiona Ambrosino and Mr John Whyte filed 14 May 2025 (Joint Arboricultural/Ecological Report); and

3. Joint Civil Engineering Report prepared by Mr Hassan Narimani and Mr Vincent Ooi filed 19 May 2025 (Joint Civil Report).

10. Following joint expert conferencing, and prior to the s 34AA conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

11. Further amended plans and documents were filed with the Court on 17 June (June Amendments) (cited at [57]). The June Amendments relevantly include:

1. retention of T31-33, T54, T54a and T55;

2. movement of pickleball court further south to reduce encroachment on T55;

3. in relation to the proposed dwelling house:

1. lowering of front entryway awning on southern elevation;

2. setback of the south-western guest bedroom on ground floor and removal of external patio to reduce encroachment to T31 and 33; and

3. insertion of pool safety fence.

4. In relation to the driveway:

1. increase of driveway gradient and redesign / relocation of turning area to reduce level of cut proposed;

2. redesign of access pathway to front door; and

3. further westerly setback of pool area to reduce encroachment to T49.

5. In relation to the stormwater drainage design:

1. repositioning of rainwater tank from underneath the driveway to a higher location on the site – now underneath alfresco area; and

2. installation of silt arrestor pit adjacent to the property boundary for water quality measures,

3. (collectively, the June Amendments).

12. The Development Application, as amended by the January Amendments and June Amendments, comprise the Amended Development Application.

13. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent.

14. A signed s 34 agreement and supporting jurisdictional statement were filed with the Court on 17 June 2025.

15. 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.

Jurisdictional considerations

16. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owner’s consent

17. The Development Application was lodged with the consent of the owners of the Subject Land (see Class 1 Application, tab 1).

Environmental Planning and Assessment Act 1997

18. The parties agree that s 4.14 of the EPA Act applies to the Amended Development Application as the Subject Land is identified as being bush fire prone land. Section 4.14(1)(a) of the EPA Act relevantly provides that development consent cannot be granted for development on bush fire prone land unless the consent authority is satisfied that the development conforms to the specifications and requirements of Planning for Bushfire Protection 2019 (PFBP).

19. The Development Application was referred to the NSW Rural Fire Service (RFS) on 20 February 2024. RFS provided recommendations on 4 March 2025. The Amended Development Application is supported by a Bushfire Assessment Report prepared by Bushfire Hazard Solutions Pty Ltd dated 28 May 2025 (Bushfire Report), which confirms that the Amended Development Application remains consistent with the recommendations provided by RFS. The agreed conditions of consent require compliance with the Bushfire Report (see conditions 24 and 60).

20. The parties agree, and I accept that, the Amended Development Application conforms to the specifications and requirements of PFBP and there is no impediment to the grant of consent under s 4.14(1) of the EPA Act.

Biodiversity Conservation Act 2016 and Biodiversity Conservation Regulation 2017

21. Section 7.7(2) of the Biodiversity Conservation Act 2016 (BC Act) relevantly provides that if the proposed development is likely to significantly affect threated species, the application for development consent is to be accompanied by a biodiversity development assessment report.

22. The parties agree that s 7.7 of the BC Act applies to the Amended Development Application as:

1. Section 7.2(1)(b) of the BC Act relevantly provides that development is likely to affect threatened species if the development exceeds the biodiversity offsets scheme threshold.

2. Section 7.4(4) of the BC Act relevantly provides that a proposed development is considered to exceed the biodiversity offsets threshold if it is development “of a kind that the regulations declare to exceed the threshold”.

3. Clause 7.2 of the Biodiversity Conservation Regulation (BC Regulation) relevantly provides that that the clearing of native vegetation is declared to exceed the biodiversity offsets threshold if it involves the clearing of native vegetation on land included on the Biodiversity Values Map published under clause 7.3.

4. The Subject Land is included on the Biodiversity Values Map and the proposal involves the clearing of specified native vegetation species within this mapped area.

23. The Amended Development Application is therefore accompanied by an amended Biodiversity Development Assessment Report prepared by Fraser Ecological dated 6 May 2025 (BDAR).

24. Pursuant to s 7.13(2) of the BC Act, the consent authority is relevantly to take into consideration the likely impact of the proposed development on biodiversity values as assessed in the BDAR that relates to the application. Pursuant to s 7.13(3) of the BC Act, if the consent authority decides to grant consent and the biodiversity offset scheme applies to the proposed development, the conditions of consent must require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the BDAR.

25. The BDAR relevantly provides (at p 11) that:

1. A certain amount of clearing is required in order for the site (and its canopy coverage) to be effectively managed as bushfire prone land. Accordingly, in conference with the Arborist, the trees to be retained have been selected according to their retention value and biodiversity significance.

2. The application has made a genuine attempt to avoid and minimise impacts considering the relatively small area of land available for the zoning of the site which includes a building entitlement within a residential area. The removal of native trees is largely unavoidable due to the previously undeveloped nature of the site.

3. As part of design amendments trees numbered T31, T32, T54, T54A and T55 will now be retained as requested by Council.

26. The BDAR also requires the provision of specified offsets, as prescribed at p 88.

27. The BDAR has been assessed by the parties’ ecological experts in joint conferencing and is considered to adequately assess the impacts of the proposed development (see Joint Arboricultural/Ecological Report, p 12). The parties agree, and I accept, that the impacts of the proposal are acceptable. Further, condition 18 of the agreed conditions requires the relevant retiring of biodiversity credits consistent with the BDAR.

28. Accordingly, the parties agree, and I accept that, that the applicable provisions of the BC Act (particularly section 7.13) and the BC Regulation have been considered and satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

29. The Amended Development Application proposes the removal of trees to facilitate the proposed development.

30. The parties agree that as the Amended Development Application seeks development consent to remove the identified trees, Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) relating to permits, is not enlivened due to the BC SEPP regulating a different and separate scheme to seeking development consent under the EPA Act.

31. The parties agree that the requirements of Ch 6 of the BC SEPP apply to the Amended Development Application as the Subject Land is located within the Sydney Harbour Catchment. Division 2 in Pt 6.2 sets out general controls applying to development in a regulated catchment.

32. The parties agree, and I accept, that:

1. For the purposes of s 6.6 of the BC SEPP, the Subject Land’s topography provides a north-west to south-east slope in which the majority of overland flow is directed towards the street and away from the nearest natural waterway (approximately 100m to the north of the Subject Land). In addition, the proposed stormwater design implements a number of measures to manage the amount and quality of stormwater run-off post-development, including:

1. measures to incorporate on-site stormwater retention and infiltration, including a pickleball court which also acts as an above ground OSD and infiltration device; and

2. silt traps have been introduced to the amended design, along with Oceanguard stormwater filter cartridges within all pits.

2. These treatments have been considered by the parties’ experts in the Joint Civil Report (see paras 3.1-3.5, 4.1-4.6 and 7.1-7.6), and are considered to be in accordance with the Ku-ring-gai Development Control Plan 2015 and achieve a satisfactory level of stormwater quality control prior to discharging to the street. As a result of the above measures, the parties agree that that the Amended Development Application ensures that quantity and quality of water will be managed at acceptable levels such that the quality of water entering natural waterbodies will be as close as possible to neutral or beneficial, and the impact on flow will not have any detrimental effect on natural waterbodies within the regulated catchment.

3. For the purposes of s 6.7 of the BC SEPP, the proposed development does not involve the clearing on riparian vegetation, and given the predominant fall of the land towards the street, as well as its spatial separation to the nearest natural watercourse, is not anticipated to have any impact on aquatic ecology. The proposed development is not identified on ‘waterfront land’ and a controlled activity approval (relevant to land within 40m of a mapped watercourse) is not required – the nearest watercourse being approximately 100m away from the subject site.

4. For the purpose of s 6.8 of the BC SEPP, the Subject Land is not identified as being flood liable land.

5. For the purposes of s 6.9 of the BC SEPP, the proposed development is not anticipated to have any impact on the available public access to nearby natural waterbodies.

6. For the purposes of s 6.10 of the BC SEPP, the Subject Land is not in close proximity to any local government area boundaries with a neighbouring local government authority. The parties have considered the Amended Development Application and agree it is unlikely to have an adverse environmental impact in the regulated catchment area.

33. The relevant requirements of Pt 6.2 of the BC SEPP are therefore satisfied in respect of the Amended Development Application.

State Environmental Planning Policy (Resilience and Hazards) 2021

34. I accept the parties’ submission that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the Subject Land is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because of the Subject Land’s longstanding history of residential use with no known history of potentially contaminating uses or events (see Amended Statement of Environmental Effects prepared by Planning Approvals dated 10 January 2025 (ASEE), p 24).

State Environmental Planning Policy (Sustainable Buildings) 2022

35. The Amended Development Application is accompanied by a BASIX certificate (No. 1424279S_05, dated 28 May 2025) prepared by Sustainability -Z Pty Ltd.

Ku-ring-gai Local Environmental Plan 2015

36. The Subject Land is zoned R2 – Low Density Residential under the Ku-ring-gai Local Environmental Plan 2015 (KLEP). Accordingly, dwelling houses are permitted with consent in the R2 zone. I have had regard to the zone objectives which are extracted below:

• 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.

37. Pursuant to cl 4.3 of the KLEP relating to height of buildings, the maximum building height permissible for the Subject Land is 9.5m. The parties agree that the Amended Development Application complies with this standard.

38. Pursuant to cl 4.4 of the KLEP relating to floor space ratio (FSR), a maximum FSR development standard of 0.3:1 applies to the Subject Land. The parties agree that the Amended Development Application complies with this standard.

39. Pursuant to cl 6.1 of the KLEP relating to acid sulfate soils, the Subject Land is mapped as Class 5. The parties agree that pursuant to cl 6.1(2) of the KLEP, the Subject Land is not in proximity to land classified in classes 1-4, therefore, this provision is satisfied and an acid sulfate management plan is not required.

40. Pursuant to cl 6.2 of the KLEP relating to earthworks, a consent authority must consider various matters in deciding whether to grant development consent for earthworks. The parties agree that the proposed earthworks are consistent with the objectives set out in cl 6.2(1) and that the matters listed in cl 6.2(3) have been appropriately considered. Having regard to the updated cut and fill plan (Dwg No. C009), the findings in the Joint Civil Report (see par 7.7), Joint Planning Report (see par 5.1) and agreed conditions of consent, I confirm that I have considered the matters listed in cl 6.2(3) of the KLEP.

41. Pursuant to cl 6.3 of the KLEP relating to biodiversity protection, the parties agree that the Subject Land is identified as “Biodiversity” on the Terrestrial Biodiversity Map and that the consent authority must therefore consider the matters listed in in cl 6.3(2) and be satisfied of the matters listed in cl 6.3(4) before determining a development application to which the provision applies. The Amended Development Application:

1. includes a Supplementary Biodiversity Letter prepared by Fraser Ecological dated 6 May 2025 (Ecological Assessment) which provides a detailed assessment of cl 6.3 (see Appendix C, p 15); and

2. has been considered by the parties’ ecological experts in the Joint Arboricultural/Ecological Report (see pp 8-10) which concludes that the proposed revisions are considered acceptable having regard to cl 6.3 of the KLEP.

42. Having regard to the Ecological Assessment and Joint Arboricultural/Ecological Report, I confirm that I have considered the matters listed in cl 6.3(2) and am satisfied of the matters listed in cl 6.3(4) of the KLEP.

43. Pursuant to cl 6.5 of the KLEP relating to stormwater and water sensitive urban design, before granting development consent, a consent authority must be satisfied of the matters listed in cl 6.5(2). The parties agree, and I accept, that:

1. the proposed development incorporates several water sensitive urban design measures (see [32] above), to manage the quality and quantity of stormwater run off and the Joint Civil Report concludes that they are acceptable (see for example, pars 3.1-3.5, 4.1-4.6 and 7.1-7.6);

1. all proposed stormwater management measures are integrated; and

2. the proposed stormwater design provides a legal point of discharge to the street for captured stormwater, and is not anticipated to cause adverse impacts on the land to which the development is to be carried out, adjoining properties, native bushland, waterways or groundwater systems.

44. In determining the Amended Development Application, I confirm that I have considered the matters listed in cl 6.5(2) of the KLEP.

45. Pursuant to cl 6.11 of the KLEP relating to Wahroonga Estate, Fox Valley Road, Wahroonga, development consent must not be granted for the erection of a dwelling on land identified as “Wahroonga Estate” on the Key Sites Map if the number of dwellings on all of that land would exceed 500. The parties agree that the Subject Land is identified as Wahroonga Estate on the Key Sites Map. However, the parties agree, and I accept, that the number of existing dwellings within the Wahroonga Estate as at the date of this application is approximately between 90-100 (see ASEE, p 26). Accordingly, cl 6.11 of the KLEP is not engaged for the purposes of the Amended Development Application.

Ku-ring-gai Development Control Plan

46. The proposal has been considered against the relevant requirements of the Ku-ring-gai Development Control Plan (see ASEE, pp 27-34).

Other jurisdictional matters – s 4.15(1) of the EPA Act

47. The matters set out in s 4.15(1)(a) of the EPA Act are considered generally above.

48. In relation to s 4.15(1)(b) of the EPA Act, the parties agree, and I accept that the likely impacts of the proposal have been considered (see also, ASEE, pp 35-36 and Joint Arboricultural/Ecological Report).

49. In relation to s 4.15(1)(c) of the EPA Act, the parties agree, and I accept that the Subject Land is suitable for the proposed development (see also ASEE, p 37).

50. In relation to s 4.15(1)(d) of the EPA Act, as set out at [4], the Development Application, as lodged, was notified between 27 February to 12 March 2024. No submissions were received in response to the notification.

51. The parties agree that the Amended Development Application did not require re-notification as the environmental impacts of the amendments will be the same or lesser than the original proposal.

52. A written objection to the Development Application as lodged was provided to the respondent on the morning of 23 June 2025 (the day of the conciliation conference), being well outside of the notification period. The submission raised concerns including height, scale, landscaping and privacy.

53. To the extent relevant, I confirm that this written submission has been taken into consideration in the assessment and determination of the Amended Development Application.

54. In relation to s 4.15(1)(e) of the EPA Act, the parties agree, and I accept, that the Amended Development Application is in the public interest (see also ASEE, p 38).

Conclusion

55. As the parties’ decision is a decision 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.

56. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

57. The Court notes that:

1. The respondent, as the relevant consent authority, has agreed under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending its Development Application eDA0166/23 in accordance with the documents listed below:

No.	Drawing No	Drawing Title	Rev	Prepared By	Date
Architectural Plans
1.	000-001	Title Page	G	Douglas Design	13.05.2025
	001-001	Site Analysis Plan	G	Douglas Design	13.05.2025
	001-002	Site Plan	G	Douglas Design	13.05.2025
	002-001	Base Floor Plan	G	Douglas Design	13.05.2025
	002-002	Ground Floor Plan	G	Douglas Design	13.05.2025
	002-003	First Floor Plan	G	Douglas Design	13.05.2025
	002-004	Roof Plan	G	Douglas Design	13.05.2025
	003-001	Elevations - Southern	G	Douglas Design	13.05.2025
	003-002	Elevations - Eastern & Western	G	Douglas Design	13.05.2025
	003-003	Elevations - Northern	G	Douglas Design	13.05.2025
	004-001	Section AA	G	Douglas Design	13.05.2025
	004-002	Section BB & CC	G	Douglas Design	13.05.2025
	004-003	Driveway Long Section	G	Douglas Design	13.05.2025
	005-001	Gross Floor Area (GFA) Plan	G	Douglas Design	13.05.2025
	005-002	Built Upon Area (BUA) Plan	G	Douglas Design	13.05.2025
	006-001	Shadow Diagrams - 9am	G	Douglas Design	13.05.2025
	006-002	Shadow Diagrams - 12pm	G	Douglas Design	13.05.2025
	006-003	Shadow Diagrams - 3pm	G	Douglas Design	13.05.2025
	007-001	Material Finishes Schedule	G	Douglas Design	13.05.2025
Landscape Plans
2.	LPS34 24-74 - 1	Hardscape Plan	M (02)	Conzept Landscape Architects	13.05.2025
	LPS34 24-74 – 2	Landscape Plan	M (02)	Conzept Landscape Architects	13.05.2025
	LPS34 24-74 – 3	Southern Elevation	M (02)	Conzept Landscape Architects	13.05.2025
	LPS34 24-74 – 4	Details and Specification	M (02)	Conzept Landscape Architects	13.05.2025
	LPS34 24-74 - 5	Planting Palettes	M (02)	Conzept Landscape Architects	13.05.2025
	LPS34 24-74 - 6	Tree Canopy Calculation	M (02)	Conzept Landscape Architects	13.05.2025
Stormwater Plans
3.	C001	Notes And Specs	6	Urbanspec Engineering	28.05.2025
	C002	Drainage Catchments Plan	6	Urbanspec Engineering	28.05.2025
	C003	Specifications Sheet 2	6	Urbanspec Engineering	28.05.2025
	C004	Ground Floor Drainage Plans	6	Urbanspec Engineering	28.05.2025
	C005	Roof & Level 1 Drainage	6	Urbanspec Engineering	28.05.2025
	C006	OSD Tank Details	6	Urbanspec Engineering	28.05.2025
	C007	Stormwater Drainage Details	6	Urbanspec Engineering	28.05.2025
	C008	Sediment And Erosion Control Plan	6	Urbanspec Engineering	28.05.2025
	C009	Cut & Fill Plans	6	Urbanspec Engineering	28.05.2025
	C010	Driveway Long Section And Details	6	Urbanspec Engineering	28.05.2025
Supporting Documentation
No.	Document				Date
4.	Tree Management Plan & Specifications prepared by Ross Jackson				11.06.2025
5.	Supplementary Bushfire Assessment prepared by Bushfire Hazard Solutions				28.05.2025
6.	Updated Biodiversity Assessment Report prepared by Fraser Ecological Consulting				06.05.2025
7.	Ecological Assessment Letter prepared by Fraser Ecological				06.05.2025
8.	Updated BASIX Certificate (Issue 1424279S_05) and NatHERS Certificate (No. 0011947363) prepared by Sustainability Z				28.05.2025

2. The applicant filed the amended plans outlined above with the Court on 17 June 2025.

Orders

58. The Court orders that:

1. The appeal is upheld.

2. Development Application eDA0166/23, as amended, for construction of a dwelling house with basement car parking, swimming pool, pickleball court and associated landscape works including retaining walls and tree removal at 195-197 The Comenarra Parkway, Wahroonga, is determined by the grant of consent subject to the conditions contained in Annexure A.

N Targett

Commissioner of the Court

Annexure A (312 KB, pdf)

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Decision last updated: 27 June 2025