Beaumont v Ku-ring-gai Council

Cases Cited: McMilllan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Ku-ring-gai Community Participation Plan 2025
Ku-ring-gai Development Control Plan 2024

Category: Principal judgment

Parties: Adrian Beaumont (Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
L Nurpuri (Applicant)
J Ede (Solicitor) (Respondent)
Solicitors:
Miller Prince (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/347947

Publication restriction: No

JUDGMENT

1. COMMISSIONER: The Applicant, Adrian Beaumont, appealed pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), against the deemed refusal of development application eDA0354/25 by Ku-ring-gai Council (the Respondent). The development application seeks consent for alterations and additions to the existing dwelling, construction of a swimming pool and associated works. The development is proposed at 73 Mcintosh Street, Gordon (Lot 4 in DP10817).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) which was held on 11 March 2026. 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. The decision agreed upon is for the grant of development consent to the development application, as amended, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. This agreement meets the first condition to the exercise of power and obligation of a commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act: see McMilllan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (McMillan) at [51]).

3. As the presiding Commissioner, I am satisfied that the second condition is met, that being that the decision is one that the Court can make in the proper exercise of its functions, see McMillan at [51]. I form this state of satisfaction on the basis that:

4. The development application was lodged with the consent of the owners of the land as required by s 23(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

5. The Development Application was notified for a period of 30 days from 30 July 2025 in accordance with the Ku-ring-gai Community Participation Plan. No submissions objecting to the Proposal were received.

6. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) precludes the granting of development consent unless the consent authority has considered whether the land is contaminated. The Respondent and the Applicant agree, and I accept, that the site has a long history of residential use with no known records of contaminating activity being conducted on the site. This history is detailed in the Statement of Environmental Effects (SEE). I find that s 4.6(1) of SEPP RH is satisfied.

7. The development application provides a BASIX Certificate as required pursuant to s 27 of the EPA Regulation. Section 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings) requires the consent authority to be satisfied that the embodied emissions attributable to the development have been quantified. The parties agree, and I accept that, the sum of embodied emissions from all materials proposed has been entered into the online BASIX tool and the total embodied emissions for the development have been calculated. I am satisfied that the embodied energy report forms part of the online BASIX tool of which the BASIX certificate is part.

8. Chapter 4 of State Environmental Planning Policy (Biodiversity Conservation) 2021 (SEPP BC) applies to the development as Ku-ring-gai Council local government area is listed in Sch 2 of SEPP BC. There is no approved Koala Plan of Management for the site. Further, the provisions of s 4.9 do not apply as the site has a land area of less than 1 hectare. I accept the agreed submission of the parties that the site is not core koala habitat as the site is not listed by the NSW Government Biodiversity Values tool as land with a high biodiversity value and the Council has not identified the Site as containing core koala habitat. The requirements of Ch 4 of SEPP BC are met.

9. Part 6.2 ‘Development in regulated catchments’ of SEPP BC applies as the site is located with the Sydney Harbour Catchment. The parties are satisfied, and I accept with the assistance of the architectural plans, stormwater plans and SEE, that the proposed development will have a neutral effect on the quality of water entering the Sydney Harbour Catchment. The design of the proposed development provides a reduction in discharge flow rates from the site through the provision of a rain water tank and a reduction in surface runoff through the collection of roof water. Water quality devices are provided as demonstrated by the Sediment and Erosion Plan in the Civil Engineering Drawings.

10. In determining the development application I am satisfied that the proposal appropriately considers the matters set out at ss 6.6, 6.7, 6.8, 6.9 and 6.10 of SEPP BC, which deal with mandatory aquatic ecology matters, impacts on periodic flooding that benefits wetlands and other riverine ecosystems, impacts on recreational land uses in the Sydney Harbour Catchment, and adverse environmental impacts on any adjacent or downstream local government areas. Pursuant to s 6.11 of SEPP BC the site is within 100m of Rocky Creek, a natural water body. The development application proposes to continue residential use of the land which is not a water dependant use in relation to Rocky Creek and is not anticipated to result in land use conflict.

11. The parties agree, and I accept, that no clearing is proposed nor is consent sought under the Water Management Act 2000 (NSW) or the Fisheries Management Act 1994 (NSW). There are no known wetlands or significant aquatic ecology that will be affected by the proposed development. Further, the proposed development will not result in the release of pollutants or affect water quality in the locality nor alter the natural recession of water. The requirements of SEPP BC are satisfied.

12. The development application involves ground penetration within 2m of an electricity distribution pole. Pursuant to s 2.48(2) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) the consent authority is required to firstly give written notice to the electricity supply and secondly take into account any comments received within 21 days. The Development Application was referred to Endeavour Energy, who raised no objections subject to their nominated conditions of consent. Those conditions have been included within the agreed conditions of consent in Annexure A.

13. The subject site is identified as Vegetation Category 2 on the Bushfire Prone Land Map. Pursuant to s 4.14(1) of the EPA Act, development consent can be granted if the consent authority has been provided with a certificate by a person which is recognised by the NSW Rural Fire Service as a qualified consultant in bushfire risk assessment stating that the development is conforming. The development application is accompanied by such a certificate which confirms that the development conforms to the relevant specifications and requirements of Planning for Bushfire Protection 2019 and has been issued pursuant to s 4.14(1)(b) of the EPA Act.

14. The site is zoned R2 Low Density Residential pursuant to Ku-ring-gai Local Environmental Plan 2015 (LEP 2015). Residential dwellings are permissible with consent in the zone. In determining the development application, I have given consideration to the objectives of the zone, which 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.

12. The proposal also involves some demolition of the existing dwelling on the Site. Development for the purposes of demolition is permissible with consent pursuant to cl 2.7 of LEP 2015.
13. The amended development application is compliant with the development standards for Maximum Building Height and Floor Space Ratio in LEP 2015.
14. The site is located within the Love Estate, Thorne Grant Heritage Conservation Area (HCA) listed in Pt 2, Sch 5 of LEP 2015. The amended development application is accompanied by a Heritage Impact Statement prepared by Kemp & Johnson Heritage Consultants. That report concludes that the proposed development will not have a detrimental impact on the significance of the HCA. In determining the development application, I have considered the effect of the development on the HCA as required by cl 5.10(4) of LEP 2015.
15. Clause 6.1 (Acid Sulfate Soils) provides that development consent is required for the carrying out of works described in the table at cl 6.1(2) on land shown on the Acid Sulfate Soils Map as being of the class specified for those works. The Site is identified as containing Class 5 acid sulfate soils. However, the proposed development is not located within 500m of class 1, 2, 3 or 4 land and is not likely to lower the water table below 1m Australian Height Datum. Therefore, I accept the agreement of the parties that an acid sulfate soils management plan is not required. The proposed development complies with cl 6.1 of LEP 2015.
16. Clause 6.2 (Earthworks) of LEP 2015 applies to the development application as it proposes excavation for the construction of the proposed pool and landscaping. The amended development application is accompanied by Stormwater Concept Plans which includes concept erosion and sediment controls for the proposed earthworks. With the assistance of the stormwater plans and the requirements detailed in the annexed conditions I have considered the matters listed at cl 6.2(3) and I am satisfied that none would warrant the refusal of the development application.
17. Clause 6.3 (Biodiversity protection) applies to the site as a portion of the land is identified as “Biodiversity” on the Terrestrial Biodiversity Map. I accept the agreement of the parties that the matters in cll 6.3(3) and 6.3(4) are satisfied as follows:

(a) The SEE confirms that the portion of the Site that is identified on the Terrestrial Biodiversity Map "is located at the rear and the extent of work does not impact on native vegetation or habitat within the mapped area." Further, following a review of the Biodiversity Values Map, 0.046ha of land was removed from the map as the vegetation on the Site did not meet the criteria for Sydney Turpentine Ironbark Forest or any other threatened ecological community. (b) The amended development application is consistent with the recommendations of the Arboricultural Impact Assessment Report prepared by Seasoned Tree Consulting dated 23 May 2025.

18. Clause 6.4 (Riparian land and adjoining waterways) applies to the Site as a portion of the Site is identified as Category 2 on the Riparian Lands and Watercourses Map. Further, cl 6.5 ‘Stormwater and water sensitive urban design’ applies. Consistent with the preceding findings, in determining the development application I have considered the matters listed at cll 6.4(3), 6.4(4) and 6.5(3) and with the assistance of the SEE and the Stormwater Concept Plans I am satisfied that none of the listed matters for consideration warrant the refusal of the development application.

19. Ku-ring-gai Development Control Plan 2024 (DCP 2024) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2024. In determining the development application, I have considered the provisions of DCP 2024, as required by s 4.15(1) of the EPA Act.

20. 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)).

21. 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. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Notes

6. The Court notes that:

7. Ku-ring-gai Council as the relevant consent authority has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the applicant amending the development application eDA0354/25 the subject of these proceedings as shown in the following amended plans and reports:

| Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1 | Drawing No. 23022-02, Revision D | Site Analysis Plan | Willoughby Architects | February 2026 | | Drawing No. 23022-03, Revision E | Site Plan | March 2026 | | Drawing No. 23022-04, Revision E | Compliance Plans | March 2026 | | Drawing No. 23022-05, Revision D | Complaince Plans | February 2026 | | Drawing No. 23022-06, Revision D | Floor Plans - Existing | February 2026 | | Drawing No. 23022-07, Revision D | Demolition & Waste Management Plan | February 2026 | | Drawing No. 23022-08, Revision D | Detailed Demolition | February 2026 | | Drawing No. 23022-09, Revision D | Detailed Demolition | February 2026 | | Drawing No. 23022-10, Revision E | Ground Floor Plan | March 2026 | | Drawing No. 23022-11, Revision D | Level 1 Plan | February 2026 | | Drawing No. 23022-12, Revision E | Level -1 Plan | March 2026 | | Drawing No. 23022-15, Revision D | Roof Plan | February 2026 | | Drawing No. 23022-30, Revision D | Elevations, 1 of 2 | February 2026 | | Drawing No. 23022-31, Revision D | Elevations, 2 of 2 | February 2026 | | Drawing No. 23022-41, Revision D | Sections | February 2026 | | Drawing No. 23022-61, Revision D | Schedules, Window & Door | February 2026 | | Drawing No. 23022-62, Revision D | Schedules, Basix | February 2026 | | Drawing No. 23022-63, Revision D | Schedules, Basix | February 2026 | | Drawing No. 23022-64, Revision D | Schedule - Finishes | February 2026 | | Landscape Plans | | 2 | Drawing No. DA-LPF, Revision H | DA - Landscape Plan Front | Goodmanors | 11 March 2026 | | Drawing No. DA-LPR, Revision H | DA - Landscape Plan Rear | | Drawing No. DA-PPF, Revision H | DA - Planting Plan Front | | Drawing No. DA-PPR, Revision H | DA - Planting Plan Rear | | Stormwater Concept Plans | | 3 | Drawing No. SW-00, Revision B | Hydraulic Services Cover Sheet, Legend & Drawing List | Harris Page & Associates Pty Limited | 25 February 2026 | | Drawing No. SW-01, Revision B | Hydraulic Services Site Plan | | Drawing No. SW-02, Revision B | Hydraulic Services Roof Plan | | Drawing No. SW-03, Revision B | Hydraulic Services Sediment & Erosion Control Plan | | Drawing No. SW-04, Revision A | Hydraulic Services Catchment Area | | Reports | | 4 | BASIX Certificate No. A1790713_03 | Wurley Group Pty Ltd | 24 February 2026 |

Orders:

7. The Court orders that:

8. The appeal is upheld.

9. Development consent is granted to Development Application No eDA0354/25, as amended, for substantial alterations and additions to an existing dwelling, construction of a swimming pool and associated works at 73 Mcintosh Street, Gordon NSW 2072 (Lot 4 in Deposited Plan 10817), subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

**********

Annexure A (440 KB, pdf)