GP Holding One Pty Ltd v Ku-ring-gai Council

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

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

Category: Principal judgment

Parties: GP Holding One Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
M Staunton (Applicant)
K Gerathy (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2025/150464

Publication restriction: No

JUDGMENT

1. COMMISSIONER: The Applicant, Holding One Pty Ltd, is the owner of 69 Ayres Road, St Ives (Lot 16 in DP 225006) and proposes to redevelop the site for a new residential dwelling. The Applicant appeals, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), the deemed refusal of their development application, eDA0030/25, by Ku-ring-gai Council (the Respondent). The development application was subsequently determined by the Respondent by refusing consent to the development application.

2. The development application seeks consent for:

3. Demolition of the existing residential dwelling and site structures

4. Construction of a new residential dwelling containing six bedrooms and basement parking, swimming pool and site landscaping

5. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 17 and 18 September 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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. As part of their agreement the development application has been amended and the Respondent agrees pursuant to cl 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021), to the applicant amending the development application, as noted at [8].

7. As the presiding Commissioner, I am satisfied that the decision 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). The purpose of this test is to determine whether any jurisdictional impediments that preclude the making of orders in accordance with the parties' agreed resolution. (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

8. The Development Application was lodged by Minto Planning Services Pty Ltd as agent for GP Holding One Pty Ltd. Owner’s consent was given to the Applicant for the lodgement of the Development Application as required by s 23(1) of the EPA Regulation 2021.

9. Between 25 February and 10 March 2025, the Development Application was notified to owners and occupiers of surrounding properties in accordance with the Ku-ring-gai Community Participation Plan. Two submissions objecting to the Proposal were received. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

10. 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.

11. The amended development application provides an updated BASIX Certificate as required pursuant to s 27 of the EPA Regulation 2021. 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 online 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.

12. The proposed development seeks consent for the removal of 23 trees as set out in the Amended Arboricultural Impact Assessment prepared by Ezi Grow, dated 21 August 2025. The requirements of Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) are satisfied as the development application seeks development consent for the removal of any trees to which Pt 2.3 of the SEPP BC applies. Further, the amended development application includes an Amended Landscape Plan prepared by Conzept Architects dated 17 September 2025, which offsets this removal with the planting of replacement tree species.

13. The Site is located within the Sydney Harbour Catchment in accordance with the maps in SEPP BC. The provisions of Chapter 6 of SEPP BC include jurisdictional prerequisites to be satisfied that relate to the water catchment. In particular those contained in ss 6.6(2), 6.7(2), 6.8(2) and 6.9(2) relating to water quality and quantity; aquatic ecology; flooding; recreation and public access; and total catchment management. The parties agree, and I accept, that the Court can be satisfied these preconditions are met. In reaching this state of satisfaction I rely on:

(a) Amended Stormwater Plans prepared by Zimmerman Engineers dated 7 August 2025 (b) Engineering Statement in relation to cl 6.5 of the Ku-ring-gai Local Environmental Plan 2015 (LEP 2015) prepared by Zimmerman Consulting Engineers dated 19 August 2025**.** (c) I accept the agreement of the parties that I can be satisfied that:

(i) The amended stormwater design will ensure that there will be no impact on water flow and a beneficial effect on the quality or water entering any natural waterbodies due, in part, to the existing lack of filtration or any other treatment mechanisms on the site in comparison to those proposed by the development. (ii) The proposed development also keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, will not have a direct, indirect or cumulative adverse impact on aquatic reserves or wetlands and otherwise minimises the erosion of land or the creation of sedimentation impacts. (iii) The site is not located within the flood planning area, considered to be flood liable or within proximity of a natural waterbody and is therefore unlikely to impact on periodic flooding that benefits wetlands and other riverine ecosystems or otherwise affect recreational land use or public access to and from foreshores or natural waterbodies. I accept the agreement of the parties that, the proposed development is very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems. (iv) For the purposes of s 6.9 of the SEPP BC, the proposed development does not affect public access to and from natural water bodies. (v) For the purposes of s 6.10 of the SEPP BC, the proposed development is not likely to have an adverse environmental impact on any adjacent local government area. (vi) For the purposes of s 6.11 of the SEPP BC, the proposed development is not located on land within 100 metres of a natural waterbody in a regulated catchment. (vii) Further, stormwater control and management is appropriately addressed in conditions 1, 50, and 51 in Annexure A.

7. 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:

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

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

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

11. The proposal also involves 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.

12. The amended development application is compliant with the development standards for Maximum Building Height and Floor Space Ratio in LEP 2015.

13. 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.

14. Clause 6.2 (Earthworks) provides the consent authority must consider the matters listed in cl 6.2(3). The proposed development seeks consent for earthworks to facilitate a basement and construction of a swimming pool. With the assistance of the Geotechnical letter in relation to cl 6.2 prepared by Ideal Geotech dated 8 September 2025, the Addendum to the Statement of Environmental Effects prepared by Minto Planning Services and Amended Architectural Plans prepared by Popov Bass dated 17 September 2025 I accept the agreement of the parties that the proposed development complies with cl 6.2(3) of the LEP 2015.

15. Clause 6.5 (Stormwater and water sensitive urban design) in LEP 2015 requires the consent authority to be satisfied of the matters identified in cl 6.5(2)(a) to (d). The development application includes the following relevant documents Amended Stormwater Plans prepared by Zimmerman Engineers dated 7 August 2025, Engineering Statement in relation to cl 6.5 of the LEP prepared by Zimmerman Consulting Engineers dated 19 August 2025 and the Addendum to the Statement of Environmental Effects prepared by Minto Planning Services. Those documents confirm that the proposed development has been designed to avoid significant adverse impacts of stormwater runoff to adjoining properties. Accordingly, the Court can be satisfied the proposed development complies with cl 6.5(2) of the LEP 2015.

16. 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 the development control plan: s 4.15(1) of the EPA Act.

17. 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)).

18. 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

8. The Court notes that:

9. 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 eDA0030/25 the subject of these proceedings as shown in the following amended plans and reports:

| Amended Architectural Plans | | Plan name | Drawing ref | Revision | Date | Prepared by | | Title Page | 0664-DA100 | 05 | 18 September 2025 | Popov Bass | | Site Analysis Plan | 0664-DA100 | 05 | 18 September 2025 | Popov Bass | | Site Plan | 0664-DA102 | 05 | 18 September 2025 | Popov Bass | | Lower Ground Floor Plan | 0664-DA103 | 05 | 18 September 2025 | Popov Bass | | Ground Floor Plan | 0664-DA104 | 05 | 18 September 2025 | Popov Bass | | Level 01 Plan | 0664-DA105 | 05 | 18 September 2025 | Popov Bass | | Roof Plan | 0664-DA106 | 05 | 18 September 2025 | Popov Bass | | East Elevation | 0664-DA107 | 05 | 18 September 2025 | Popov Bass | | West Elevation | 0664-DA108 | 05 | 18 September 2025 | Popov Bass | | South Elevation | 0664-DA109 | 05 | 18 September 2025 | Popov Bass | | North Elevation | 0664-DA110 | 05 | 18 September 2025 | Popov Bass | | Section AA | 0664-DA111 | 05 | 18 September 2025 | Popov Bass | | Section BB | 0664-DA112 | 05 | 18 September 2025 | Popov Bass | | Sample Board | 0664-DA120 | 05 | 18 September 2025 | Popov Bass | | Area Calculation Diagrams | 0664-DA122 | 05 | 18 September 2025 | Popov Bass | | Driveway Section | 0064-DA133 | 05 | 18 September 2025 | Popov Bass | | Amended Reports | | Report name | Ref | Revision | Date | Prepared by | | Addendum to Statement of Environmental Effects | - | - | 10 September 2025 | Minto Planning Services dated | | Letter in relation to clause 6.2 of the Ku- ring-gai Local Environmental Plan | Reference: 81622- IDF | - | 16 September 2025 | Ideal Geotech | | Amended Registered Quantity Surveyor’s Detailed Cost Report Declaration and Cost Summary Report | Project Number: 0366-0016 - EDC QS Report | - | 18 September 2025 | MBM | | Amended BASIX certificate | Certificate number: 1777465S_02 | - | 18 September 2025 | Frys Building Consultancy Pty Ltd | | Amended BASIX stamped plans | Certificate No. 0011596145-01 | - | 18 September 2025 | Frys Building Consultancy Pty Ltd |

Orders

9. The Court orders that:

10. The appeal is upheld

11. Development consent is granted to eDA0030/25 for the demolition of existing structures, construction of a new dwelling including basement, lift, swimming pool and associated works at 69 Ayres Road, St Ives subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

Annexure A (248 KB, pdf)

**********