Chen v Ku-ring-gai Council

Category: Principal judgment

Parties: Jiaying Chen (Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
T Poisel (Applicant)
J Ede (Solicitor) (Respondent)
Solicitors:
Tyrrells Planning Law (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/283197

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) by Jiaying Chen (the Applicant) against the refusal of Development Application No. eDA0194/25, lodged with the Ku-ring-gai Council (the Respondent), on 1 May 2025. The respondent issued a notice of refusal on 2 July 2025.

2. The Development Application seeks development consent for the demolition of existing structures and construction of a new dwelling, swimming pool, cabana and gatehouse together with associated landscaping and ancillary works. The proposed development is to take place at Lot 2 in Deposited Plan 581733 known as 3A Stuart Street Wahroonga NSW 2076.

3. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference commenced on 2 February 2026.

4. At the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the development application subject to agreed outcomes and conditions.

5. The agreement reached by the parties was based on amended plans and additional material that resolved the contentions before the Court. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following:

8. Pursuant to the Ku-ring-gai Local Environmental Plan 2015 (KLEP), the subject site is zoned R2 Low Density Residential. The proposed “dwelling house” is permissible in this zone. Regard has been given to the R2 zone objectives in determining the application.

9. Clause 5.10 of the KLEP requires consideration of heritage matters. The site is located within the Wahroonga Heritage Conservation Area, a heritage conservation area of local significance identified as ‘C1’ at Pt 2 of Sch 5 of the KLEP. The Proposed Development is supported by a Statement of Heritage Impacts and Heritage Letter. The parties agree that the proposed development will not affect the heritage significance of surrounding development. I am satisfied that the required considerations have been undertaken.

10. Pursuant to cl 6.1 of the KLEP, ‘Acid Sulfate soils’, the consent authority is required to consider any potential acid sulfate soils affectation that might disturb, expose or drain acid sulphate soils and cause environmental damage. The parties agree that the Site is located within a Class 5 area as specified in the KLEP - Acid Sulfate Soils Map. The parties agree, and I am satisfied, that the proposal meets the requirements of cl 6.1 of the KLEP 2015 as development consent is not required pursuant to this clause.

11. Pursuant to cl 6.2 of the KLEP ‘Earthworks’, the consent authority is to ensure that earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. The earthworks relate to the construction of a basement which is generally contained within the dwelling footprint and the construction of a swimming pool. The parties do not consider that there will be any detrimental impact associated with the proposed earthworks. I am satisfied that the parties have undertaken the required considerations in respect to earthworks.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

8. The site is located within the Sydney Harbour Catchment pursuant to Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BCSEPP). The parties have undertaken the required assessments in respect to the proposed development including assessing Engineering Plans prepared by Amuna dated 30 January 2026, sheet ES2 – Erosion and Sediment Control Notes & Details. The parties agree that the Proposed Development has been assessed against Ch 6 and has been found to be consistent with the requirements for developments within the catchment area and will not result in unsatisfactory impacts on the catchments.

State Environmental Planning Policy (Sustainable Buildings) 2022

9. The Development Application is accompanied by BASIX Certificate No. 1787354S _03 issued by Building Sustainability Assessments dated 12 January 2026. The parties are satisfied, as am I, that the requirements in s 27 of the Environmental Planning and Assessment Regulation 2021 (NSW) and the State Environmental Planning Policy (Sustainable Buildings) 2022 have been met.

State Environmental Planning Policy (Resilience and Hazards) 2021

10. As required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), consideration has been given to whether the site is contaminated. The parties agree that the site has been used for residential purposes for a number of years and is therefore unlikely to be contaminated. The proposed use of the land is to remain residential. The parties agree, and I am satisfied, that the required considerations have been undertaken.

11. The proposal was notified from 19 May 2025 and 2 June 2025. Two submissions were received and have been considered in the preparation of the final plans and conditions of consent.

12. 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’ agreement.

13. I was not required to make, and have not made, an assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

14. The Court notes that:

15. The Ku-ring-gai Council, as the relevant consent authority, has agreed, under s 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending the Development Application eDA0194/25 and supporting documents, the subject of these proceedings, in accordance with the plans and documents listed below:

| Architectural Plans prepared by Playoust Churcher | | Plan No. | Revision | Title | Dated | | 001 | D | Cut & Fill Plan | 30 January 2026 | | 100 | D | Demolition Plan | 30 January 2026 | | 101 | D | Site & Roof Plan | 30 January 2026 | | 102 | D | Ground, Site & Basement Floor Plan | 30 January 2026 | | 103 | D | First Floor Plan | 30 January 2026 | | 200 | D | Elevations | 30 January 2026 | | 201 | D | Elevations | 30 January 2026 | | 202 | D | Sections | 30 January 2026 | | DA1000 | D | External Finishes | 30 January 2026 | | Landscape Plans prepared by Landsberg Garden Design | | Plan No. | Revision | Title | Dated | | L001 | C | Overview | 10 January 2026 | | L100 | C | Landscape Plan | 10 January 2026 | | L101 | C | Sections – Back Garden | 10 January 2026 | | L102 | C | Landscape Plan – First Floor | 10 January 2026 | | L200 | C | Planting Plan | 10 January 2026 | | L201 | C | Tree Plan | 10 January 2026 | | L202 | C | Planting Plan – First Floor | 10 January 2026 | | L400 | C | Landscape Details | 10 January 2026 | | L401 | C | Landscape Specifications | 10 January 2026 | | Stormwater Management Plans prepared by AMUNA Civil Engineering | | Plan No. | Revision | Title | Dated | | S1 | 5 | Title Page & Notes | 30 January 2026 | | S2 | 5 | Management of Stormwater Plan – Basement Floor | 30 January 2026 | | S3 | 5 | Management of Stormwater Plan – Ground Floor Page 1 of 2 | 30 January 2026 | | S4 | 5 | Management of Stormwater Plan – Ground Floor Page 2 of 2 | 30 January 2026 | | S5 | 5 | Management of Stormwater Details Page 1 or 2 | 30 January 2026 | | S6 | 5 | Management of Stormwater Details Page 2 of 2 | 30 January 2026 | | S7 | 5 | Management of Stormwater Calculations Page 1 of 2 | 30 January 2026 | | S-S8 | 5 | Management of Stormwater Calculations Page 2 of 2 | 30 January 2026 | | ES1 | 5 | Erosion and Sediment Control Plan | 30 January 2026 | | ES2 | 5 | Erosion and Sediment Control Notes and Details | 30 January 2026 | | Civil and Driveway Plans prepared by AMUNA Civil Engineering | | Plan No. | Revision | Title | Date | | D1 | 5 | Title Page & Notes | 30 January 2026 | | D2 | 5 | Driveway – Plan – Page 1 of 2 | 30 January 2026 | | D3 | 5 | Driveway – Plan – Page 2 of 2 | 30 January 2026 | | D4 | 5 | Driveway – Long Section – MC1 | 30 January 2026 | | D5 | 5 | Driveway – Cross Sections – MC1 | 30 January 2026 | | D6 | 5 | Driveway – Swept Paths – Entry | 30 January 2026 | | D7 | 5 | Driveway – Swept Paths – Exit | 30 January 2026 | | D8 | 5 | Driveway – Details | 30 January 2026 | | Construction Traffic Management Plan prepared by PDC Consultants dated 28 October 2025 | | Statement of Design Compliance – Pool Fencing prepared by Buildcert dated 10 October 2025 | | Basix certificate No. 1787354S_03 dated 12 January 2026 | | NatHERS Summary Report and Certificate prepared by Energy Rating Group Ref: ERG1094 dated 1 October 2025 |

Orders

15. The Court Orders that:

16. The appeal is upheld.

17. Development Application eDA0194/25, for demolition of existing structures, construction of a dwelling house, swimming pool, cabana and associated works in relation to Lot 2 in Deposited Plan 581733, known as 3A Stuart Street, Wahroonga NSW 2076, is determined by the grant of consent subject to the conditions set out in Annexure ‘A’ to this agreement.

S Harding

Acting Commissioner of the Court

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Annexure A (420 KB, pdf)