Yin v Ku-ring-gai Council

[2025] NSWLEC 1798

Land and Environment Court

New South Wales

Medium Neutral Citation:

Yin v Ku-ring-gai Council [2025] NSWLEC 1798

Hearing dates:

Conciliation conference on 5-6 November 2025

Date of orders:

12 November 2025

Decision date:

12 November 2025

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application eDA0546/24, as amended, for alterations and additions to the existing dwelling and detached garage and studio, a modified driveway and associated works on land legally described as Lot 1 in DP330347, being 56 Treatts Road, Lindfield, is determined by the grant of consent subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions to dwelling house – impact on heritage significance of an item – heritage conservation area – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), s 8.7

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

Ku-ring-gai Local Environmental Plan 2015, cll 4.3, 4.4, 5.10, 6.1, 6.2, 6.5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2 ss 6.6, 6.7, 6.8, 6.9

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

State Environmental Planning Policy (Sustainable Buildings) 2022 s 2.1

Texts Cited:

Ku-ring-gai Community Participation Plan

Category:

Principal judgment

Parties:

Xiaodong Yin (First Applicant)
Min Ye (Second Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
D Robertson (Applicant)
K Geragthy (Solicitor) (Respondent)

Solicitors:
McKees Legal (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2025/215363

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: Development is proposed at a site at 56 Treatts Road, Lindfield known as ‘Brenchley’ that is listed on the State Heritage Register for its local heritage significance.

2. More specifically, development application No. eDA0546/24 was lodged by the Applicants in these proceedings, Mr Xiaodong Yin and Ms Min Ye (together the Applicants) with Ku-ring-gai Council on 18 December 2024, seeking consent for alterations and additions to the existing dwelling on the site, and to a detached garage and first floor rooms, modification of the existing driveway and associated works (the DA).

3. The development application was subsequently notified by the Council between 21 January 2025 and 4 February 2025, in accordance with the Ku-ring-gai Community Participation Plan in response to which no public submissions were received.

4. The development application was refused by the Ku-ring-gai Local Planning Panel on behalf of the Council on 14 April 2025 and the Applicants filed an appeal with the Court on 5 June 2025 under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act)

5. The Court arranged a conciliation conference between the parties on 5 November 2025, pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act), at which I presided.

6. After an onsite view, the conciliation conference re-convened at Court, during which the parties reached in-principle agreement on those issues in dispute, subject to the preparation of amended plans.

7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court, dated 6 November 2025, and amended plans and other documents were filed on the same date.

8. The parties ask me to approve their decision as set out in the agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared on behalf of the Applicants, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

9. 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. The parties prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [30].

10. The site is located within an area designated by the Ku-ring-gai Local Environmental Plan 2015 (KLEP) to be R2 Low Density Residential, in which the proposed development is permitted with consent, where consistent with the following objectives of development in the zone:

•  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.

11. The proposal complies with the development standards in respect of height and floor space ratio at cll 4.3 and 4.4. In respect of FSR that is expressed as a ratio of 0.3:1 given the site area of 1,941m².

12. It is commonly held that Brenchley was built in 1914 and that the site is listed for its heritage significance. The development application is supported by a Statement of Heritage Impact prepared by GBA Heritage and dated November 2024, in which the Statement of Significance for the site is described in the following terms:

“The subject dwelling at 56 Treatts Road, Lindfield, demonstrates historic and aesthetic significance and representative qualities at a local level. Constructed in c.1914, the dwelling is representative of the Federation Bungalow style in which it was designed and constructed, including the use of the large, simple roof planes, a wraparound verandah, roughcast rendered chimneys, timber detailing and posts, and a prominent gable verge. The existing dwelling is located within an extensive garden setting.”

13. The site is also located within the Oliver Grant Heritage Conservation Area (Oliver Grant HCA), and adjoins the Blenheim Road Conservation Area to the south of the site, and the Crown Blocks Conservation Area to the east of the site.

14. It is also relevant that the site is within the vicinity of a number of other heritage items, namely: No 42 Treatts Road, No 45 Treatts Road, No 47 Treatts Road, No 50 Treatts Road, No 43 Nelson Road

15. Having considered those matters at cl 5.10 of the KLEP, and on the basis of the amended architectural plans prepared by Lindsay Little & Associates, the experts agree that the heritage significance of the item, the relevant Conservation Areas and those items of heritage significance nearby is not adversely affected by the proposal, due primarily to lowering of the new roof over the alterations to the north of the existing dwelling that are subservient in scale, and distinct in form to that of the original roof form.

16. Provisions at cll 6.1 and 6.2 of the KLEP in respect of Acid Sulfate Soils and Earthworks respectively are, in my view, not relevant to the proposal that is primarily alterations and additions to existing lower ground, ground and first floor levels.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

17. As the site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map, Part 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies.

18. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent 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.

19. On the basis of Condition 12A, I am satisfied that there are no changes proposed to the surfaces outside of the existing building footprint, and that the area of impervious roof is also proposed to be maintained as existing such that there will be no change in the rate, volume or velocity of discharge from the site. I am also therefore satisfied that the water quality resulting from the development is likely to be neutral within the catchment, and that water flow is minimised by no virtue of there being no additional discharge.

20. 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.

21. I note that the site is not identified as flood liable land to which s 6.8 of the SEPP is directed and so does not apply. 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.

22. On the same basis, I am satisfied that water sensitive urban design principles are incorporated in the development by the collection of stormwater runoff via first flush devices, its retention and reuse so that potential adverse environmental impacts are likely to be avoided in terms required by cl 6.5 of the KLEP.

State Environmental Planning Policy (Resilience and Hazards) 2021

23. I have considered whether the site is contaminated pursuant to s 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021. On the basis of the historical chronology of the site set out in the Statement of Heritage Impact cited at [12], I am satisfied that the site is suitable for the development.

State Environmental Planning Policy (Sustainable Buildings) 2022

24. The application is accompanied by a BASIX certificate (Cert No. A1774794_03 dated 6 November 2025) prepared by Lindsay Little & Associates Pty Ltd in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

25. On the basis of the Embodied Emissions of Proposed Works certificate, prepared by Lindsay Little & Associates dated 6 November 2025, the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified as required by s 2.1(5) of the Sustainable Buildings SEPP.

Conclusion

26. 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.

27. 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.

28. The Court notes that Ku-ring-gai Council, as the relevant consent authority, approves the amending of development application No. eDA0546/24 by those amended plans and other documents listed below, and that were filed with the Court on 6 November 2025.

29 Drawing Title	Drawing/ Sheet No	Prepared by	Issue	Dated
Architectural Plans
Site Analysis Plan	DA-01	Lindsay Little & Associates Pty Ltd	G	6/11/2025
Ground Floor Plan	DA-02	Lindsay Little & Associates Pty Ltd	H	6/11/2025
Attic Floor Plans	DA-03	Lindsay Little & Associates Pty Ltd	K	6/11/2025
Lower Floor Plan	DA-04	Lindsay Little & Associates Pty Ltd	H	6/11/2025
Elevations	DA-05	Lindsay Little & Associates Pty Ltd	H	6/11/2025
Elevations	DA-06	Lindsay Little & Associates Pty Ltd	H	6/112025
Section AA/East Elevation	DA-07	Lindsay Little & Associates Pty Ltd	G	6/11/2025
Long Section BB	DA-07	Lindsay Little & Associates Pty Ltd	G	6/11/2025

Document Title	Reference	Prepared By	Date
BASIX Certificate No.	A1774794_03	Lindsay Little & Associates Pty Ltd	6/11/2025
Stormwater Drainage Statement	Linday Little & Associates Pty Ltd	6/11/2025

Orders

29. The Court orders that:

1. The appeal is upheld.

2. Development Application eDA0546/24, as amended, for alterations and additions to the existing dwelling and detached garage and studio, a modified driveway and associated works on land legally described as Lot 1 in DP330347, being 56 Treatts Road, Lindfield, is determined by the grant of consent subject to the conditions set out in Annexure A.

T Horton

Commissioner of the Court

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Annexure A (262 KB, pdf)