Wang v Ku-ring-gai Council

[2025] NSWLEC 1079

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wang v Ku-ring-gai Council [2025] NSWLEC 1079

Hearing dates:

Conciliation conference 31 January 2024

Date of orders:

14 February 2025

Decision date:

14 February 2025

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Court, as consent authority, approves, pursuant to section 113(4) of the Environmental Planning and Assessment Regulation 2021, of the Applicant amending its modification application No. eMOD0092/24 in accordance with the documents listed at [38] of this judgment.

(2) Consent is granted to Modification Application eMOD0092/24 and accordingly Development Consent DA0114/23, granted by the Land and Environment Court on 19 December 2023 (LEC Proceedings No. 2023/205549) for the construction of a two storey home, pool and tennis court at 3 Graham Avenue, Pymble, is modified in the terms set out in Annexure A,

(3) Development consent DA0114/23, as modified, is set out in Annexure B.

Catchwords:

MODIFICATION APPLICATION – s 4.55(8) application to the Court to modify a development consent granted by the Court – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, s 6.12, 7.7

Environmental Planning and Assessment Act 1979, s 4.55

Heritage Act 1977, s 57, Div 3

Land and Environment Court Act 1979, s 34

Biodiversity Conservation Regulation 2017

Ku-ring-gai Local Environmental Plan 2015, cll 5.10, 6.2, Sch 5, Pts 1, 4, 5, 6

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 2.3, Ch 2

State Environmental Planning Policy (Sustainable Buildings) 2022

Cases Cited:

Wang v Ku-ring-gai Council [2023] NSWLEC 1782

Category:

Principal judgment

Parties:

Xuenan Wang (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
S Siv (Solicitor) (Applicant)
E Peachey (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Maddocks (Respondent)

File Number(s):

2024/263222

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: These proceedings arise following an application to the Court under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify development consent DA0114/23 (the consent) granted by the Court in Wang v Ku-ring-gai Council [2023] NSWLEC 1782. That decision granted approval to demolition works and the constriction of a dwelling house, swimming pool, tennis court at 3 Graham Avenue, Pymble (Lot 8 in DP 1291190).

2. Application eMOD0092/24 (the modification application) proposes to make the following amendments to the approved development:

1. Amendments to the setback to the tennis court and west pavilion.

2. An increase in the basement size,

3. Provision of lift access,

4. Alterations and additions to the floor plates of the dwelling,

5. Reduction of driveway width, and

6. Amendments to landscaping.

3. The modification application proposed for approval has been amended since filing in response to contentions raised by the Respondent.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 31 January 2025. I presided over the conciliation conference. At the conciliation conference agreement was reached between the parties to approve the modification application. The terms of the parties’ agreement is outlined in their executed s 34 written agreement.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement. In that regard, I note the following matters.

Substantially the same: s 4.55(2)(a) of the EPA Act

6. The modification application was made pursuant to s 4.55(8) of the EPA Act. The jurisdictional requirements for the modification application are contained in s 4.55(2) of the EPA Act.

7. The parties submit, and I accept, that the development to which the consent as proposed to be as modified relates, is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified). In forming that view, I have had regard to the following:

• Quantitatively the changes are focussed on a component of the development, namely the provision of parking, motorbike and bicycle parking. The remainder (the majority) of the development remains unchanged.

• The modification application does not propose any change to the use, overall appearance, scale, or form of the proposed development. There be no perceived changes to the development when viewed from the public domain.

8. I am satisfied that on the basis of the amendments made by the applicant, that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted (and before that, consent as originally granted was modified).

Consultation: s 4.55(2)(b) of the EPA Act

9. The second jurisdictional requirement under s 4.55(2)(b) of the EPA Act relates to consultation with relevant approval bodies.

10. The development application was referred to Heritage NSW. On 16 May 2023, Heritage NSW did not raise its objections and issued its General Terms of Approval.

11. The Modification Application does not propose amendments that would require the proposed development to be referred to Heritage NSW. Heritage NSW’s General Terms of Approval dated 16 May 2023 are incorporated in the conditions of consent.

12. The requirements of s 4.55(2)(b) of the EPA Act are met.

Consideration of submissions: s 4.55(2)(d) of the EPA Act

13. The Modification Application was publicly notified from 7 August 2024 to 21 August 2024 for a period of 14 days. Three (3) public submissions were received.

14. The main issues raised in the objections in response to the Modification Application related to overland flow, view impacts, excessive excavation, suitability of the Site for the proposed development and geotechnical matters.

15. The proposed modification results in a lowering of the approved development. Accordingly, the proposed modification will not result in any increase in the view loss to the adjoining property at 21 Telegraph Road, Pymble, compared to the Original Consent.

16. The amended Modification Application was also notified from 3 December 2024 to 17 December 2024. One public submission was received.

17. The only issue raised in the objections in response to the amended Modification Application related to geotechnical matters.

18. The Applicant has provided a Geotechnical Statement and Geotechnical Investigation Report prepared by Geo-Environmental Engineering Pty Ltd dated 18 September 2024 which concludes that the earthworks proposed by the amended Modification Application complies with the earthworks clause 6.2 in the Ku-ring-gai Local Environmental Plan 2015 (LEP 2015).

19. I am satisfied that the submissions have been considered in accordance with s 4.55(2)(d) of the EPA Act.

Consideration of reasons for the grant of consent: s 4.55(3) of the EPA Act

20. The reasons for granting consent are detailed in the judgment Wang v Ku-Ring-Gai Council [2023] NSWLEC 1782. The Amended Modification Application does not seek to vary any essential element of the reasons for the grant of the Original Consent.

Relevant matters in s 4.15(1) of the EPA Act: s 4.55(3) of the EPA Act

Heritage Act 1977

21. The Site is located adjacent to a State Heritage Item at 29 Telegraph Road being item No. I88 Schedule 5, Part 1 to LEP 2015. Part of the Site, specifically the driveway access handle, is identified in association with the State Heritage Item at 29 Telegraph Road being item No. I88 Schedule 5, Part 1 to the LEP.

22. Pursuant s 57(1) of the Heritage Act 1977, a person must not carry out development on land within the precinct except in pursuance of an approval granted by the approval body under Subdivision 1 of Division 3.

23. The Original Consent was referred to Heritage NSW. On 16 May 2023, Heritage NSW did not raise its objections and issued its General Terms of Approval. As mentioned above, the parties confirm Heritage NSW’s General Terms of Approval dated 16 May 2023 is incorporated in the conditions of consent.

24. The parties agree, and I accept that the amended Modification Application does not propose any changes that would require the proposed development to be rereferred to Heritage NSW. The proposed development will not result in any detrimental impacts on the character of the surrounding area, adjoining and nearby heritage items or upon the amenity of adjoining property owners.

Biodiversity Conservation Act 2016 and Biodiversity Conservation Regulation 2017

25. Part of the Site is mapped as biodiversity values as part of the site contains Blue Gum High Forest in the Sydney Basin Bioregion.

26. Pursuant to s 6.12 of the Biodiversity Conservation Act 2016, a biodiversity development assessment report (BDAR) is required to be prepared by an accredited person in relation to proposed development or activity that would be authorised by a planning approval, or proposed clearing that would be authorised by a vegetation clearing approval. The BDAR is required to assess the matters listed in s 6.12(a) to (d). Pursuant to section 7.7 of the BC Act, if a proposed development is deemed “likely to significantly affect threatened species”, the application for development consent is to be accompanied by a BDAR.

27. In response to ss 6.12 and 7.7 of the BC Act, the Applicant has provided a BDAR prepared by Ecoplanning dated 3 June 2024.

28. The parties agree, and I accept, that I can be satisfied that the proposed development complies with s 7.7 of the BC Act and BC Regulations.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

Chapter 2 Vegetation in Non Rural Areas

29. The Site is located within the local government area of Ku-Ring-Gai Council listed in s 2.3(1)(a) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP). Pursuant to section 2.3(1)(b), Chapter 2 of the Biodiversity SEPP applies as the Site is zoned part R2 Low Density Residential.

30. The amended Modification Application does not make any changes to the Original Consent regarding the removal of trees.

State Environmental Planning Policy (Sustainable Buildings) 2022

31. The Applicant has prepared a BASIX certificate dated 25 June 2024 for the Modification Application.

Ku-Ring-Gai Local Environmental Plan 2015

32. The Site is zoned R2 Low Density Residential. The proposed development remains permissible with consent.

33. The Modification Application is compliant with the development standards in Part 4 of LEP 2015.

34. Consistent with the findings at [24] the parties agree and I accept that the modification application will not have a detrimental impact on the heritage significance of the State Heritage Item at 29 Telegraph Road: cl 5.10(4) of LEP 2015.

35. Further, none of the provisions in Part 5 or Part 6 of LEP 2015 apply to the amended Modification Application.

Conclusion

36. 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)).

37. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders.

38. As part of the orders giving effect to the agreement of the parties, the Modification Application is amended in accordance with the documents listed below:

Amended Architectural Plans
Plan name	Drawing ref	Revision	Date	Prepared by
Cover Page	00	Q	29 October 2024	McCullum Ashby Architects
Development Data	01	Q	29 October 2024	McCullum Ashby Architects
Site – Basement	04	Q	29 October 2024	McCullum Ashby Architects
Site – Ground Floor	05	Q	29 October 2024	McCullum Ashby Architects
Site – First Floor	06	Q	29 October 2024	McCullum Ashby Architects
Site – Roof Plan	07	Q	29 October 2024	McCullum Ashby Architects
Basement	08	Q	29 October 2024	McCullum Ashby Architects
Ground Floor Plan	09	Q	29 October 2024	McCullum Ashby Architects
First Floor	10	Q	29 October 2024	McCullum Ashby Architects
East & North Elevations	11	Q	29 October 2024	McCullum Ashby Architects
West & South Elevations	12	Q	29 October 2024	McCullum Ashby Architects
Section A & B	13	Q	29 October 2024	McCullum Ashby Architects
Section C & D	14	Q	29 October 2024	McCullum Ashby Architects
Section E	15	Q	29 October 2024	McCullum Ashby Architects
Excavation & Environmental Management Plan	16	Q	29 October 2024	McCullum Ashby Architects
Reports
Report name	Ref	Revision	Date	Prepared by
Geotechnical Investigation Cover Letter	-	-	18 September 2024	Geo-Environmental Engineering Pty Ltd
Geotechnical Investigation Report	REPORT ID:G21083PYM-R03F	-	18 September 2024	Geo-Environmental Engineering Pty Ltd
Amended Waste Management Plan	-	-	6 November 2024	McCullum Ashby Architects
Statement of Heritage Impact Statement	-	-	12 June 2024	Weir Phillips

Orders

39. The Court orders that:

1. The Court, as consent authority, approves, pursuant to section 113(4) of the Environmental Planning and Assessment Regulation 2021, of the Applicant amending its modification application No. eMOD0092/24 in accordance with the documents listed at [38] of this judgment.

2. Consent is granted to Modification Application eMOD0092/24 and accordingly Development Consent DA0114/23, granted by the Land and Environment Court on 19 December 2023 (LEC Proceedings No. 2023/205549) for the construction of a two storey home, pool and tennis court at 3 Graham Avenue, Pymble, is modified in the terms set out in Annexure A,

3. Development consent DA0114/23, as modified, is set out in Annexure B.

I certify that this and the preceding 8 pages are a true copy of my reasons for judgment.

………………………

D Dickson

Commissioner of the Court

**********

Amendments

18 February 2025 - Application pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”) made on behalf of the Respondent, with the Consent of the Applicant to:

(1) to correct the reference to the development application number within the judgment from DA0014/23 to DA0114/23.

(2) to correct the spelling of the Respondent solicitor on the coversheet from ‘Peachy’ to ‘Peachey’.

Decision last updated: 18 February 2025