//
[2025] NSWLEC 1868
General information, not legal advice.
Land and Environment Court (NSW)
2025-12-09
Washington C
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Barbaro v Ku-ring-gai Council [2025] NSWLEC 1868
Hearing dates: Conciliation conference on 27 November 2025
Date of orders: 09 December 2025
Decision date: 09 December 2025
Jurisdiction: Class 1
Before: Washington C
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application No. DA 0361/25 for the demolition of existing structures, construction of an attached dual occupancy development with associated works including strata subdivision of one lot into two lots on the land at 39 Babbage Road, Roseville Chase, NSW 2069 known as Lot 5 in DP 19155 is determined by way of consent, subject to the conditions at Annexure A.
Catchwords: DEVELOPMENT APPLICATION – construction of a dual occupancy dwelling – 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), s 34, 34AA
Environment Planning and Assessment Regulation 2021 (NSW), ss 27, 38
Ku-ring-gai Local Environmental Plan 2015, cll 4.3, 4.4, 6.1, 6.5
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9, 6.10, Ch 6
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Category: Principal judgment
Parties: Nicole Barbaro (First Applicant)
Dominic Barbaro (Second Applicant)
Ku-ring-gai Council (Respondent)
Representation: Counsel:
M Parrino (Solicitor) (Applicant)
N Ferguson (Solicitor) (Respondent)
Solicitors:
Project Lawyers (Applicant)
Sparke Helmore (Respondent)
File Number(s): 2025/334632
Publication restriction: Nil
COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Ku-ring-gai Council, of Development Application DA0361/25 which seeks consent for the demolition of existing structure, construction of an attached dual occupancy development with swimming pools and associated works including strata subdivision at 39 Babbage Road, Roseville Chase.
These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 27 November 2025.
At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Accordingly, the matter concluded in conciliation and did not proceed to a hearing.
As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicants amending the development application to adequately address their contentions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. 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 jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained. From this I note the following points.
The development application was made with the written consent of the owner of the land.
The application was adequately notified from 6-20 August 2025. Six submissions were received, and three residents made oral submissions at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions. The parties agree that the amended application does not necessitate renotification, however at the commencement of these proceedings, the amendments were explained to the two direct neighbours insofar as they were relevant to concerns raised. No further issues arose as a result.
The site is located within the Sydney Harbour Catchment and accordingly, Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies. Based on the amended application and the parties’ submission, I accept that the requirements of Ch 6 of the SEPP BC relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met by the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it will be suitable for the intended use. Based on the parties’ submissions and the information contained in the Statement of Environmental Effects by Corona Projects dated February 2025 (SEE) I accept that the land has historically been used for residential purposes, is not likely to be contaminated, and is suitable for the future residential use.
Pursuant to s 27 of the EPA Regulation, a BASIX certificate, that relates to the development as amended, accompanies the application.
The subject site is zoned R2 Low Density Residential under the Ku-ring-gai Local Environmental Plan 2015 (KLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.
Pursuant to KLEP cl 4.3, a maximum building height of 9.5m applies to the subject site, to which the proposed development complies.
KLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.326:1. The proposed development again complies with this development standard with a maximum FSR of 0.272:1.
Pursuant to KLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, based on the parties’ submission and the SEE, I accept that the proposed works will not be below 5m Australian Height Datum (AHD) and are not likely to lower the water table below 1m AHD.
From the stormwater drainage plans by United Consulting Engineers dated 13 November 2025 and the parties’ submission, I accept that the stormwater and water sensitive urban design of the proposed development meets the requirements of KLEP cl 6.5.
For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, and accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
The Court notes:
The respondent as the relevant consent authority for the purposes of s38 of the Environmental Planning and Assessment Regulation 2021 (NSW), approves the amendment to the Development Application No. DA0361/25, to include the following plans and documents:
| 1. | Architectural Plans prepared by Corona Projects | | i. Site Plan dwg no. 01 | D | 12 November 2025 | | ii. Existing / Proposed Demolition Floor Plan, dwg no. 02 | D | 12 November 2025 | | iii. Proposed Subdivision Plan, dwg no. 03 | D | 12 November 2025 | | iv. Proposed Ground Floor Plan, dwg no. 04 | E | 20 November 2025 | | v. Proposed First Floor Plan, dwg no. 05 | D | 12 November 2025 | | vi. Proposed Roof Plan, dwg no. 06 | D | 12 November 2025 | | vii. Elevations, dwg no. 07 | E | 20 November 2025 | | viii. Sections, dwg no. 8 | D | 12 November 2025 | | ix. Proposed Cut and Fill Plan, dwg no. 09 | D | 12 November 2025 | | x. Streetscape Analysis, dwg no. 10 | D | 12 November 2025 | | xi. Windows Schedule, dwg no. 11 | E | 20 November 2025 | | xii. Door Schedule, dwg no. 12 | D | 12 November 2025 | | xiii. Built Upon Area / Landscaping Calculations, dwg no. 13 | D | 12 November 2025 | | xiv. FSR / GFA Calculations, dwg no. 14 | D | 12 November 2025 | | xv. External Finishes Material Board, dwg no. 15 | E | 20 November 2025 | | 2. | Stormwater Plans prepared by United Consulting Engineers | | a. Roof Drainage Plan, dwg no. D01 | C | 13 November 2025 | | b. First Floor Drainage Plan, dwg no. D02 | C | 13 November 2025 | | c. Ground Floor Drainage Plan, dwg no. D03 | C | 13 November 2025 | | d. Details Page 1, dwg no. D04 | C | 13 November 2025 | | e. Details Page 2, dwg no. D05 | C | 13 November 2025 | | f. Impervious Area Plan, dwg no. D06 | C | 13 November 2025 | | 9. | Landscaping Plans prepared by Melissa Wilson Landscape Architects | | a. Cover Page, dwg no. LS00 | B | 13 November 2025 | | b. Site Plan, dwg no. LS01 | B | 13 November 2025 | | c. Front + Side Passage, dwg no. LS02 | B | 13 November 2025 | | d. Rear + Pool, dwg no. LS02.1 | B | 13 November 2025 | | e. Notes + Typical Details, dwg no. LS03 | B | 13 November 2025 | | f. Plant Species, dwg no. LS04 | B | 13 November 2025 | | g. Mood Board, dwg no. LS05 | B | 13 November 2025 | | 17. | Arboricultural Impact Assessment prepared by Alexis Anderson of BlueGum Tree Care and Consultancy | • | November 2025 | | 18. | BASIX Certificate No. 1823016M | • | 21 November 2025 |
The Court orders:
The appeal is upheld.
Development Application No. DA 0361/25 for the demolition of existing structures, construction of an attached dual occupancy development with associated works including strata subdivision of one lot into two lots on the land at 39 Babbage Road, Roseville Chase, NSW 2069 known as Lot 5 in DP 19155 is determined by way of consent, subject to the conditions at Annexure A. ……………………….
Annexure A (348 KB, pdf)
**********
Barbaro
Ku-ring-gai Council [2025] NSWLEC 1868