Siddiqui v Ku-ring-gai Council

[2025] NSWLEC 1739

Land and Environment Court

New South Wales

Medium Neutral Citation:

Siddiqui v Ku-ring-gai Council [2025] NSWLEC 1739

Hearing dates:

Conciliation conference on 2 October 2025

Date of orders:

14 October 2025

Decision date:

14 October 2025

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No eDA0115/25, as amended, for alterations and additions to an existing building to create an attached dual occupancy development at 24 Larchmont Avenue, East Killara, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – attached dual occupancy development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7

Land and Environment Court Act 1979 (NSW), ss 34, 34AA

Environmental Planning and Assessment Regulation 2021 (NSW), s 38

Ku-ring-gai Local Environmental Plan 2015, cll 4.3, 4.4, 4.6

State Environmental Planning Policy (Biodiversity and Conservation) 2021, 6.6

State Environmental Planning Policy (Housing) 2021, ss 164, 166, Ch 6

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

Cases Cited:

Cumming v Cumberland Council (No 2) [2021] NSWLEC 117

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Category:

Principal judgment

Parties:

Fareeda Siddiqui (Applicant)
Ku-ring-gai Municipal Council (Respondent)

Representation:

Counsel:
A Gough (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2025/214188

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Development Application No eDA0115/25 for alterations and additions to an existing building to create an attached dual occupancy development (the proposal), at 24 Larchmont Avenue, East Killara (the site), by Ku-ring-gai Council (the Council).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 2 October 2025. I presided over the conciliation conference. At the conciliation conference, 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.

3. 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 preconditions to the exercise of power to grant development consent for the proposal.

Amended application

4. 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 (NSW). The plans and documents comprising the amended application are:

1. Architectural Plans prepared by Top Design Architecture, as follows:

Drawing Number	Drawing Name	Date
DA 0-01 (Revision D)	Site Plan	25 September 2025
DA 0-02 (Revision D)	Site Analysis Plan	25 September 2025
DA 0-03 (Revision D)	GFA Calculations	25 September 2025
DA 0-04 (Revision C)	Built -Upon Area Calculations	24 September 2025
DA 0-05 (Revision D)	Demolition Plan	25 September 2025
DA 1-01 (Revision G)	Ground Floor Plan	25 September 2025
DA 1-02 (Revision H)	First Floor Plan	30 September 2025
DA 1-03 (Revision H)	Car Parking Plan	29 September 2025
DA 2-01 (Revision H)	South East Elevation – Larchmont Avenue	30 September 2025
DA 2-02 (Revision F)	North East Elevation – Churchill Road	29 September 2025
DA 2-03 (Revision F)	North West Elevation – Side	29 September 2025
DA 2-04 (Revision G)	South West Elevation – Rear	30 September 2025
DA 2-05 (Revision G)	Fence Details	30 September 2025
DA 3-01 (Revision E)	Long Section A	29 September 2025
DA 3-02 (Revision E)	Cross Section B	29 September 2025
DA 4-01 (Revision F)	Schedule of Finishes	30 September 2025
DA 5-01 (Revision A)	Shadows – South East Elevation 21 June	16 September 2025
DA 5-02 (Revision A)	Shadows – North West Elevation 21 June	16 September 2025
DA 5-03 (Revision A)	Shadows – South East Elevation 21 March	16 September 2025
DA 5-04 (Revision A)	Shadows – South East Elevation 21 March	16 September 2025

2. Landscape Plans prepared by John Chetham and Associates:

Drawing Number	Drawing Name	Date
LP01 (Revision D)	Site Landscape Plan	12 September 2025
LP02 (Revision E)	Landscape Planting Details	17 September 2025
LP03 (Revision B)	Landscape Area Plan	17 September 2025
LP04 (Revision E)	Landscape Maintenance Plan	17 September 2025

3. Stormwater Management Plans prepared by Hydracor Consulting Engineers, issue D, dated 22 September 2025 and Drawing Nos. C1 to C8

4. Written Request prepared by JLA dated 1 October 2025.

5. BASIX Certificate No. 1815346M prepared by Certified Energy and dated 1 October 2025.

5. The Council is satisfied that the contentions raised in the Statement of Facts and Contentions filed by the Council on 2 July 2025 have been adequately addressed by the amended application.

Pre-conditions to the grant of consent

6. I accept the Council’s assessment that the site is suitable for the development, having been historically used for a residential purpose, and that the matters under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been addressed.

7. The application includes Stormwater Management Plans which provide for the capture and conveyance of stormwater from the site. I accept the Council’s submission that the proposal, as amended, makes adequate provision to protect the quality and quantity of groundwater, pursuant to s 6.6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP)

8. The site is zoned R2 Low Density Residential pursuant to Ku-ring-gai Local Environmental Plan 2015 (LEP 2015). Development for the purpose of a dual occupancy is not permitted in the R2 zone under LEP 2015. Chapter 6 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the site pursuant to s 164(1). Development for the purpose of a dual occupancy is permitted with consent on R2 zoned land pursuant to s 166 of the Housing SEPP.

9. The objectives of the R2 zone under LEP 2015, to which regard must be had, are:

• 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.

10. The proposal, as amended, complies with the height of buildings development standard for the site of 9.5m pursuant to cl 4.3 of LEP 2015.

Contravention of the floor space ratio (FSR) development standard

11. The site has an area of 874.9m². The FSR development standard for the site is ((120 + (0.25 × site area)) / site area):1 pursuant to cl 4.4(2A) of LEP 2015. The FSR development standard for the site is 0.3872:1. The proposal, as amended, has a FSR of 0.3876:1.

12. The applicant provided a written request seeking to justify the very minor contravention of the FSR development standard prepared by JLA and dated 1 October 2025.

13. The planning experts agreed that the existing basement/sub-floor area does not form part of the gross floor area of the proposal.

14. Clause 4.6(3) of the LEP 2015 establishes preconditions that must be satisfied before a consent authority, or the Court exercising the functions of a consent authority, can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] “Initial Action”). The consent authority must form two positive opinions of satisfaction under cl 4.6(3). The consent authority, or the Court on appeal, must be satisfied that, (a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

The applicant’s written request to contravene the FSR development standard

15. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction.

16. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]:

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

4. the development standard has been abandoned by the council;

5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

17. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).

18. The applicant’s written request justifies the contravention of the FSR development standard on the bases that compliance is unreasonable or unnecessary because the exceedance is de minimis, and therefore imperceptible in terms of the proportion of the bulk and scale of the building envelope on the site.

19. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

20. I am satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). I am satisfied that justifying the aspect of the development that contravenes the development standard as de minimis and therefore imperceptible in terms of the proportion of the bulk of the building envelope on the site can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Conclusion

21. The applicant’s written request made under cl 4.6 of LEP 2015 and prepared by JLA and dated 1 October 2025, regarding an exceedance of the FSR development standard for the site pursuant to cl 4.4 of LEP 2015, is acceptable.

22. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 2 October 2025 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

23. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No eDA0115/25, as amended, for alterations and additions to an existing building to create an attached dual occupancy development at 24 Larchmont Avenue, East Killara, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

…………………

S O’Neill

Commissioner of the Court

(Annexure A) (300 KB, pdf)

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Decision last updated: 14 October 2025