Barnard v Ku-ring-gai Council

Parties: Stuart Barnard (First Applicant)
Amanda Barnard (Second Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
J Farrell (Applicant)
R Varadharajan (Solicitor) (Respondent)
Solicitors:
Apex Planning and Environmental Law (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s): 2025/100654

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of development application eDA0189/24 (DA), for demolition of existing structures and construction of a new dwelling, swimming pool and associated site landscaping works 34 Marlborough Place, St Ives, NSW, legally known as Lot 12 DP 223202 (subject site).

2. The DA was lodged with Ku-ring-gai Council on 27 May 2024, and notified between 6 June and 20 June 2024; two public submissions were received.

3. The DA was determined by refusal on 13 September 2024.

4. A s 8.2 review of the DA was lodged on 13 December 2024, and the review application was notified between 15 January and 29 January 2025.

5. The review application was determined by confirming the original decision (refusal) on 7 March 2025.

6. The Applicant in these proceedings filed an appeal in Class 1 of the Court’s jurisdiction on 14 March 2025.

7. Prior to the Court-arranged conciliation conference between the parties, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act), and on the basis of amended plans and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed agreement was submitted to the Court on 12 August 2025, in accordance with s 34(10) of the LEC Act.

8. Generally, the agreement approves the development subject to amended plans and supporting documents that were prepared by the Applicant, along with the agreed conditions of consent annexed to the s 34 agreement.

9. 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.

10. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

11. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent.

12. I have considered the Jurisdictional Statement and its referenced documents, the Class 1 Application and its attachments, and the documents referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

13. I formed an opinion of satisfaction, based on the above, that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

Jurisdictional matters

Environmental Planning and Assessment Act 1979 (NSW)

14. The Site is mapped as bushfire prone land pursuant to Ku-ring-gai Local Environmental Plan 2015 (KLEP). The matters to be considered at s 4.14 and 4.15 of the EPA Act are addressed in the Statement of Environmental Effects (SKL Planning) and the Bushfire Report (Local Bushfire, dated 4 April 2024).

Environmental Planning and Assessment Regulation 2021

15. The DA was made with the consent of the owner of the subject site in compliance with s 23(1)(a) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

16. Condition 11 requires that demolition works must be carried out in accordance with AS 2601-2001, and therefore the DA satisfies s 61 of the EPA Regulation to consider the requirements of AS 2601-2001: The Demolition of Structures*.*

State Environmental Planning Policy (Biodiversity and Conservation) 2021

17. Pursuant to Ch 2 (Vegetation in non-rural areas) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), the parties agree and I am satisfied that the development will not result in the clearing of any vegetation except that authorised by the consent, and that the development does not involve the removal of any significant or protected vegetation on the subject site.

18. The Site is located within the Hawkesbury-Nepean Catchment as mapped by the Biodiversity SEPP (Sheet HNC_001).

19. Chapter 6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent Council or the Court on appeal has considered matters including:

whether the development will have a neutral or beneficial effect on the quality of water entering a waterway,

whether the development will have an adverse impact on water flow in a natural waterbody,

whether the development will increase the amount of stormwater run-off from a site,

whether the development will incorporate on-site stormwater retention, infiltration or reuse,

20. I am satisfied these matters have been considered and addressed through the Stormwater Plans (Vanguard Consulting Engineers, Issue G, dated 11 July 2025), the Flood Impact Assessment Report (Vanguard Consulting Engineers, Revision D, dated 12 June 2025), and the SEE Addendum (SJB Planning, dated 6 August 2025).

State Environmental Planning Policy (Resilience and Hazards) 2021

21. On the basis that the subject site has been used for residential purposes for a substantial period of time, with no known records of contaminating activity being conducted on the subject site. I accept that the subject site is unlikely to be contaminated and is suitable for the purpose for which development is proposed to be carried out, pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP).

State Environmental Planning Policy (Sustainable Buildings) 2022

22. The proposed development is a BASIX development as defined in s 27 of the EPA Regulation and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) apply. The development application was accompanied by a BASIX certificate (certificate number 1761654M dated 27 August 2024); a new BASIX certificate for the amended development was filed with the Court on 16 July 2025 (certificate number 1734709S_05 dated 18 June 2025).

23. On the basis that an embodied energy report forms part of the BASIX certificate, I am satisfied that the embodied emissions attributable to the development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Ku-ring-gai Local Environmental Plan 2015

24. Ku-ring-gai Local Environmental Plan 2015 (KLEP) applies to the subject site, which is within the Ku-ring-gai Local Government Area (KLEP, cl 1.3).

25. The subject site is located within the R2 Low Density Residential zone. Development for the purposes of ‘semi-detached dwellings’ is permissible with consent in the R2 Low Density Residential zone. Pursuant to cl 2.3 of the KLEP, regard has been had to the relevant objectives of the zone. The proposal is consistent with these objectives, which are:

26. To provide for the housing needs of the community within a low density residential environment.

27. To enable other land uses that provide facilities or services to meet the day to day needs of residents.

28. To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

29. The parties agree, and I am satisfied, that the development seeks consent for demolition in accordance with cl 2.7 of KLEP.

30. The proposal is within the height standard at cl 4.3 of KLEP. The maximum building height is 9.5 m; the parties agree, and I am satisfied that the proposed development does not exceed 9.5m in height (indicated on architectural plan WD16 issue 8, Form By Design, dated 23 July 2025).

31. The proposal complies with the maximum floor space ratio (FSR) prescribed at cl 4.4 of KLEP. The subject site has a maximum permissible FSR of 0.369:1; the proposal has a gross floor area of 354.77 square metres and a site area of 1004 square metres, which equates to an FSR of 0.353:1, which complies with the maximum floor space ratio development standard (indicated on architectural plan WD07 revision 8 01 issue 8, Form By Design, dated 23 July 2025).

32. Under cl 5.21 (Flood Planning) of the KLEP, the subject site is located within the Flood Planning Area. Having considered the matters set out in cl 5.21(3), and the Statement of Environmental Effects (SKL Planning, dated March 2024), the Flood Impact Assessment Report (Vanguard Consulting Engineers, revision D, dated 12 June 2025) and the SEE Addendum (SJB Planning, dated 6 August 2025), the parties agree and I am satisfied that the development is consistent with the requirements of 5.21(2).

33. The subject site is identified as being in an area of Class 5 Acid Sulfate Soils (ASS) on the Acid Sulfate Soils Map at cl 6.1 of the KLEP. I accept the advice of the parties that, as the subject works are not within 500 metres of adjacent Class 1, 2, 3, or 4 land that is below 5m Australian Height Datum (AHD), and by which the watertable is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3, or 4 land, an Acid Sulfate Soils management plan is not required, and that the proposed development is consistent with cl 6.1 of the KLEP.

34. Clause 6.2 (Earthworks) of the KLEP applies to the subject site. The Geotechnical Investigation Report (prepared by AW Geotechnics, ev A, dated 11 November 2021), along with the conditions of consent, address and satisfy the matters to be considered at cl 6.2(3).

Conclusion

32. 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.

33. I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.

34. 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.

35. The Court notes that the Respondent, Ku-ring-gai Council, as the relevant consent authority, approves pursuant to s 38(1) of the EPA Regulation the Applicant amending development application No. eDA0189/24 in accordance with the documents listed below:

| Drawing Number | Drawing Name | Issue | Date | | WD01 | Cover Page | 08 | 23 July 2025 | | WD02 | Compliance Table / Notes | 08 | 23 July 2025 | | WD03 | BASIX Commitments | 08 | 23 July 2025 | | WD04 | Demolition Plan | 08 | 23 July 2025 | | WD05 | Landscape Plan | 08 | 23 July 2025 | | WD06 | Site Plan | 08 | 23 July 2025 | | WD07 | Compliance Calculations | 08 | 23 July 2025 | | WD08 | Ground Floor Plan | 08 | 23 July 2025 | | WD09 | First Floor Plan | 08 | 23 July 2025 | | WD10 | Basement Floor Plan | 08 | 23 July 2025 | | WD11 | Roof Plan | 08 | 23 July 2025 | | WD12 | East Elevation | 08 | 23 July 2025 | | WD13 | West Elevation | 08 | 23 July 2025 | | WD14 | South Elevation | 08 | 23 July 2025 | | WD15 | North Elevation | 08 | 23 July 2025 | | WD16 | Sections | 08 | 23 July 2025 | | WD17 | Window / Door Schedules | 08 | 23 July 2025 | | WD18 | Shadow Diagrams | 08 | 23 July 2025 | | WD19 | Shadow Diagrams Continued | 08 | 23 July 2025 | | WD20 | Building Height Diagrams | 08 | 23 July 2025 | | WD21 | Building Envelope Diagrams | 08 | 23 July 2025 |

Orders

36. The Court orders that:

37. The appeal is upheld.

38. Development Application No. eDA0189/24, as amended, for demolition of existing structures and construction of a new dwelling, swimming pool and associated site landscaping works 34 Marlborough Place, St Ives (Lot 12 DP 223202) is determined by grant of consent, subject to the conditions of consent set out in Annexure A.

N Macken

Acting Commissioner of the Court

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Annexure A.277 KB.pdf