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[2025] NSWLEC 1239
General information, not legal advice.
Land and Environment Court (NSW)
2025-04-15
O’Neill C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Chen v Ku-ring-gai Municipal Council [2025] NSWLEC 1239
Hearing dates: Conciliation conference on 3 April 2025
Date of orders: 15 April 2025
Decision date: 15 April 2025
Jurisdiction: Class 1
Before: O’Neill C
Decision: The orders of the Court are:
(1) The appeal is upheld.
(2) Development Application No eDA0096/24 for the construction of a new dwelling, swimming pool, cabana and associated works in relation to Lot 1 in Deposited Plan 963837, known as 5 Norfolk Street, Killara is determined by the grant of consent, subject to the conditions set out in Annexure ‘A’.
Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7
Land and Environment Court Act 1979, ss 34, 34AA
Environmental Planning and Assessment Regulation 2021, s 38
Ku-ring-gai Local Environmental Plan 2015, cll 4.3, 4.4, 4.6
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Category: Principal judgment
Parties: Mengmeng Chen (Applicant)
Ku-ring-gai Municipal Council (Respondent)
Representation: Counsel:
G Hugo (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Sparke Helmore Lawyers (Respondent)
File Number(s): 2024/366056
Publication restriction: No
COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No eDA096/24 for the construction of a new dwelling, swimming pool, cabana and associated works (the proposal), at 5 Norfolk Street, Killara (the site), by Ku-ring-gai Municipal Council (the Council).
The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 April 2025. 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. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision 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 preconditions to the exercise of the power to grant development consent for the proposal.
| Reference/ DWG No | Title/Description | Revision | Prepared by | Date | | Architectural Plans | | DA-010 | BASIX Commitment | 4 | Wen Architects | 13/02/2025 | | DA-050 | Site Plan | 4 | Wen Architects | 13/02/2025 | | DA-100 | Ground Floor_GA Plan | 4 | Wen Architects | 13/02/2025 | | DA-110 | First Floor GA Plan | 4 | Wen Architects | 13/02/2025 | | DA-120 | Roof Plan | 4 | Wen Architects | 13/02/2025 | | DA-200 | Elevation | 4 | Wen Architects | 13/02/2025 | | DA-210 | Elevation | 4 | Wen Architects | 13/02/2025 | | DA-220 | Elevation | 4 | Wen Architects | 13/02/2025 | | DA-230 | Elevation | 4 | Wen Architects | 13/02/2025 | | DA-500 | Area Calculation | 4 | Wen Architects | 13/02/2025 | | DA-510 | Area Calculation | 4 | Wen Architects | 13/02/2025 | | DA-530 | Building Envelope | 4 | Wen Architects | 13/02/2025 | | DA-545-1 | Shrubs on site | 4 | Wen Architects | 13/02/2025 | | DA-545-2 | Shrubs on site | 4 | Wen Architects | 13/02/2025 | | DA-543-3 | Shrubs on site | 4 | Wen Architects | 13/02/2025 | | DA-550-1 | Shadow Diagrams | 4 | Wen Architects | 13/02/2025 | | DA-550-2 | Shadow Diagrams | 4 | Wen Architects | 13/02/2025 | | DA-550-3 | Shadow Diagrams | 4 | Wen Architects | 13/02/2025 | | DA-550-4 | Shadow Diagrams | 4 | Wen Architects | 13/02/2025 | | DA-550-5 | Shadow Diagrams | 4 | Wen Architects | 13/02/2025 | | DA-550-6 | Shadow Diagrams | 4 | Wen Architects | 13/02/2025 | | DA-550-7 | Shadow Diagrams | 4 | Wen Architects | 13/02/2025 | | DA-550-8 | Shadow Diagrams | 4 | Wen Architects | 13/02/2025 | | DA-550-9 | Shadow Diagrams | 4 | Wen Architects | 13/02/2025 | | DA-550-10 | Shadow Diagrams | 4 | Wen Architects | 13/02/2025 | | DA-5550-11 | Shadow Diagrams | 4 | Wen Architects | 13/02/2025 | | DA-550-12 | Shadow Diagrams | 4 | Wen Architects | 13/02/2025 | | DA-550-13 | Shadow Diagrams | 4 | Wen Architects | 13/02/2025 | | DA-550-14 | Shadow Diagrams | 4 | Wen Architects | 13/02/2025 | | DA-600 | External Finish Schedule | 4 | Wen Architects | 13/02/2025 | | DA-900 | Retaining Change 3D | 4 | Wen Architects | 13/02/2025 | | DA-910 | Retaining Change 3D | 4 | Wen Architects | 13/02/2025 | | Landscape Plans | | L01 | Landscape Plan – Sheet 1 of 4 | B | Zenith Landscape Designs | 13/02/2025 | | L02 | Landscape Plan – Sheet 2 of 4 | B | Zenith Landscape Designs | 13/02/2025 | | L03 | Landscape Plan – Sheet 3 of 4 | B | Zenith Landscape Designs | 13/02/2025 | | L04 | Landscape Plan – Sheet 4 of 4 | B | Zenith Landscape Designs | 13/02/2025 | | Stormwater Management Plans | | S1 | Stormwater drainage plan | rev 5 | MBC Engineering | 21/11/2024 | | S2 | Stormwater drainage plan | rev 4 | MBC Engineering | 21/11/2024 | | S3 | Stormwater drainage plan | rev 1 | MBC Engineering | 20/12/2023 | | S4 | Stormwater drainage plan | rev 2 | MBC Engineering | 09/07/2024 |
I accept the Council’s assessment that the site is suitable for the development, having been historically used for a residential purpose, and that the matters under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been addressed.
The site is zoned R2 Low Density Residential pursuant to Ku-ring-gai Local Environmental Plan 2015 (LEP 2015). The objectives of the zone, to which regard must be had, 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.
The proposal complies with the height of buildings and floor space ratio development standards under cll 4.3 and 4.4 of LEP 2015.
Pursuant to cl 6.3 of LEP 2015, the site is partially mapped as being subject to a biodiversity protection provision within the clause. The proposal has been reviewed by Council’s Ecological Assessment Officer who is satisfied that the objectives of the clause have been met as the proposed development does not result in the removal of native vegetation from mapped lands. I am satisfied, on the basis of the Council’s submission, that the design will appropriately manage the environmental impact of the works.
Pursuant to cl 6.5 of LEP 2015, the proposal provides for a stormwater management plan that is consistent with the Council's development controls. Council’s Development Engineer is satisfied that the requirements of the clause have been met, subject to conditions. On the basis of the Council’s submission, I am satisfied that the proposal satisfies this clause.
The orders of the Court are:
The appeal is upheld.
Development Application No eDA0096/24 for the construction of a new dwelling, swimming pool, cabana and associated works in relation to Lot 1 in Deposited Plan 963837, known as 5 Norfolk Street, Killara is determined by the grant of consent, subject to the conditions set out in Annexure ‘A’.
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366056.24 (Annexure A)
Chen
Ku-ring-gai Municipal Council [2025] NSWLEC 1239