Castle 38 Pty Ltd v Ku-ring-gai Council

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

Texts Cited: NSW Government, Apartment Design Guide, July 2015

Category: Principal judgment

Parties: Castle 38 Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
J Reed (Applicant)
C Morton (Solicitor) (Respondent)
Solicitors:
Thomas Greer (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2025/232954

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought by Castle 38 Pty Ltd (applicant) under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Development Application No. eDA0182/25 (DA) by Ku-ring-gai Council (Council). The DA seeks consent for demolition of existing buildings and structures, amalgamation of lots and the construction of a seven storey residential flat building with 51 apartments over three levels of basement parking and associated works including landscaping at Lots 4 and 5 in Deposited Plan 4665, otherwise described as 5-7 Middle Harbour Road, Lindfield (site).

2. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 27 March 2026. I presided over the conference. The parties indicated they had come to an agreement in relation to the terms of a decision in the proceedings that would be acceptable to the parties.

3. The parties' decision involves the Court exercising the function, under s 4.16 of the EPA Act, to grant consent to the DA, as amended, subject to agreed conditions. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions. The question here is whether preconditions to the exercise of the power to grant consent are satisfied. The parties advise and I accept that relevant documentary and procedural preconditions have already been met. What has not as yet occurred is the making of findings on certain factual preconditions which enable jurisdiction to, in this case, the Court’s exercise of consent powers (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [57]-[65]). Commonly these factual preconditions include a requirement for a finding of satisfaction with respect to applicable provisions in relevant environmental planning instruments. This judgement is intended to address these factual preconditions.

4. The parties outlined matters of relevance through an agreed statement of jurisdictional preconditions provided to the Court on 27 March 2026, explaining how they believed relevant preconditions to the exercise of consent power have or could be satisfied. Mindful of their advice, I ultimately concur with the parties’ and believe there is power available to the Court to exercise the function of granting development consent in accordance with the parties' agreement. This is contingent on the findings which follow, which are made mindful of the advice of the parties.

Consideration of the Court’s exercise of consent powers and associated matters

State Environmental Planning Policy (Housing) 2021

5. Certain provisions of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) apply. According to the parties, Ch 5 (concerned with Transport Oriented Development) applies as the site falls within a Transport Oriented Development Area (as identified on the Transport Oriented Development Sites Map) pursuant to s 152. Further, residential flat buildings are permitted with development consent on the site as it sits in a relevant residential zone, pursuant to ss 151 and 154.

6. The proposal seeks to take up the provisions of Ch 2 (concerned with affordable housing) as it proposes the dedication of eight apartments or 12.8% of the total gross floor area (GFA) of the building as affordable housing for a period of 15 years (the parties advise the baseline provisions of Ch 5 and s 156(2) requiring 2% of the GFA of the building to be used for affordable housing in perpetuity is also satisfied). Meeting Ch 2’s threshold brings into play s 16 which provides a mechanism for uplift in GFA and building height, proportionate to the affordable housing component of the development.

7. The parties advise that the proposal does not call upon the uplift in GFA under Ch 2 and that the proposed GFA meets the baseline requirements of 2.5:1 under s 155(4)(a). The proposed building height of 27.63m exceeds the 22m control under s 155(2), however is permissible under the affordable housing uplift provisions at s 18.

8. The parties do not direct me to any requirement for a jurisdictional finding with respect to the Housing SEPP but the advice in regard to compliance with these development standards is accepted and noted. It is further noted that the requirement on site width (s 159) and the requirement for the consent authority to consider the Apartment Design Guide have also been met.

State Environmental Planning Policy (Resilience and Hazards) 2021

9. Section 4.6(1) requires the consent authority to consider whether land is contaminated, and if contaminated, whether it is satisfied that the land is suitable for the purpose proposed or will be made suitable. The parties advise that a Stage 1 Preliminary (Environmental) Site Investigation (PSI) was submitted with the DA and that it concludes that the land is suitable for the proposed development, and I accept this advice. The requirements of s 4.6(1) are met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

10. Chapter 6 applies as the site is located in the Hawkesbury-Nepean Catchment, which is a 'regulated catchment'. The parties advise of relevant provisions at ss 6.6 (water quality and quantity), 6.7 (aquatic ecology), 6.8 (flooding), 6.9 (recreation and public access) and 6.10 (total catchment management). Each of these provisions provide for “consideration” of a set of nominated matters. Further, in relation to each of the provisions, with the exception of s 6.10, before the granting of a consent there is a requirement for the consent authority to be “satisfied” with respect to certain matters. In their agreed statement of jurisdictional preconditions, the parties work through each of the relevant provisions, noting how in each instance the required consideration has been undertaken. The parties further advise that with respect to relevant matters the Court can and should make the required finding of satisfaction. I accept this advice, in relation to these technical matters, and am relevantly satisfied in respect to each of the relevant provisions at ss 6.6(2), 6.7(2), 6.8(2) and 6.9(2). I also accept the parties’ advice that, with respect to s 6.10, the development will not have an adverse environmental impact for any adjacent and downstream local government areas.

Ku-ring-gai Local Environmental Plan 2015

11. Ku-ring-gai Local Environmental Plan 2015 (KLEP) applies to the site, and the parties agreed statement of jurisdictional prerequisites indicates that consideration of all relevant matters has occurred. The parties advise that prior to the granting of consent, in this instance there is only one jurisdictional finding required with respect to KLEP. Clause 6.5 is concerned with stormwater and water sensitive urban design. Clause 6.5(2) establishes a suite of matters concerning which the consent authority must be satisfied on these topics of stormwater and water sensitive urban design. In their agreed statement of jurisdictional preconditions, the parties explain how the DA responds to requirements and why the Court can be satisfied with each of the matters at cl 6.5(2). I accept this advice and make the appropriate findings of satisfaction with respect to these provisions.

Other matters for consideration under section 4.15(1) of the EPA Act

12. The parties advise the proposal was notified in accordance with requirements and that 27 submissions were received and have been considered. As indicated previously, the parties advise and I accept that relevant documentary and procedural preconditions have already been met, including in relation to the requirements of the Environmental Planning and Assessment Regulation 2021 (NSW).

Conclusion

13. With the above factual findings, there is no jurisdictional bar and the parties’ decision is one that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

14. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

15. The Court notes the advice of the parties that that Ku-ring-gai Council, as the relevant consent authority, has agreed pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) to the applicant amending Development Application No. eDA1082/25 to incorporate the amended plans and additional reports listed at Annexure "A".

Orders

16. The Court orders:

17. The appeal is upheld.

18. Development Application No. eDA1082/25 seeking consent for the demolition of existing structures and buildings, amalgamation of lots, and erection of a 7 storey residential flat building with 3 levels of basement parking and associated landscaping to build 51 new apartments at Lots 4 and 5 in Deposited Plan 4665, otherwise described as 5 -7 Middle Harbour Road, Lindfield is determined by the grant of consent subject to the conditions in Annexure B.

19. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent's costs thrown away in the sum of $20,000 (excl. GST) within 28 days.

Peter Walsh

Commissioner of the Court

Annexure A (137 KB, pdf)

Annexure B (467 KB, pdf)

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