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NSWNSWLEC

HMR Developments Pty Ltd v Ku-ring-gai Council

[2026] NSWLEC 1111

Land and Environment Court (NSW)|2026-03-06|Before: Dickson C

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2026-03-06

Before

Dickson C

Catchwords

DEVELOPMENT APPLICATION – demolition and construction of a
residential flat building – conciliation conference –
amended plans
– agreement between the parties – orders made

Source

Original judgment source is linked above.

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Catchwords

DEVELOPMENT APPLICATION – demolition and construction of aresidential flat building – conciliation conference –amended plans– agreement between the parties – orders made

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: HMR Developments Pty Ltd v Ku-ring-gai Council [2026] NSWLEC 1111

Hearing dates: Conciliation conference 8 September 2025, 20 February 2026

Date of orders: 06 March 2026

Decision date: 06 March 2026

Jurisdiction: Class 1

Before: Dickson C

Decision: The Court orders that:
(1) The appeal is upheld
(2) Development application DA0028/25 for the demolition of existing structures and construction of a residential flat building including 26 units, basement parking and associated works at 2A, 2B and 4 Shinfield Avenue St Ives (Lot 101 and Lot 102 in DP 1067940 and Lot 11 in DP 12504) is determined by the grant of consent subject to the conditions in Annexure A.

Catchwords: DEVELOPMENT APPLICATION – demolition and construction of a residential flat building – conciliation conference – amended plans – agreement between the parties – orders made

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) ss 8.7, 4.15
Environmental Planning and Assessment Regulation 2021 (NSW) ss 23, 38
Land and Environment Court Act 1979 (NSW) s 34
Ku ring gai Local Environmental Plan 2015 State Environmental Planning Policy (Biodiversity and Conservation) 2021 (NSW) ss 2.3, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11 State Environmental Planning Policy (Housing) 2021 ss 144, 147, 163, 165, 177, 180 State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022 s 3.2 State Environmental Planning Policy (Transport and Infrastructure) 2021 s 2.120

HMR Developments Pty Ltd v Ku-ring-gai Council [2026] NSWLEC 1111 | Case summary | Zoe

COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of development application eDA0028/25. As amended the development application seeks consent for demolition and construction of a residential flat building including 26 units, basement car parking and associated works. The development is proposed at 2A, 2B, and 4 Shinfield Avenue, St Ives.
A conciliation conference was held between the parties in September 2025, no agreement was reached between the parties, and the matter was listed for hearing. Prior to the hearing an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. This agreed decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the Land and Environment Court Act 1979 (NSW) (LEC Act) was filed with the Court on 16 February 2026. 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 McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (‘McMillan*’*) at [51].
A further conciliation conference was held on 20 February 2026. I presided over the conciliation conference. 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 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:
The development application was lodged with the consent of the owners of the land which is included in the filed Class 1 Application: s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).
The development application was notified and advertised from 24 February to 25 March 2025 as required by the Ku ring gai Community Participation Plan. Eight submissions were received by the Respondent. The amended development application was re notified for a further thirty days. Two submissions were received. 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.
Chapter 4 (Remediation of Land) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the land. Section 4.6 of SEPP RH requires a consent authority to consider the contamination of land when determining a development application. The development application includes a Preliminary Site Investigation (PSI) prepared by GSNE Services Pty Ltd. The PSI concludes that the site is suitable for the proposed development. I accept the requirements of s 4.6 of SEPP RH are met.
Pursuant to s 2.3 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), Ch 2 ‘Vegetation in Non-Rural Areas’ applies to the development application. The development application is accompanied by an Arborists report and a Landscape Plan, compliance with each is required by the conditions in Annexure A. Further, replacement planting is proposed in the landscaping strategy for the site. The parties agree, and I accept, that the relevant provisions of Ch 2 of SEPP BC are met.
The site falls within a regulated catchment and Pt 6.2 of SEPP BC applies. Sections 6.6(2), 6.7(2), 6.8(2) and 6.9(2) in Div 2 of Pt 6.2 of the SEPP BC precludes the grant of consent to development on land in a regulated catchment unless the consent authority is satisfied as to various matters relating to:

I find that the requirements of SEPP BC are met by the amended development application.
Section 2.120 ‘Impact of road noise or vibration on non-road development’ in State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the development application as it proposes residential development adjacent a road with an annual average daily traffic volume of more than 200,000 vehicles. The development application includes a Road Traffic Noise and Mechanical Plan Noise Assessment which concludes that no exceedances of the internal noise or vibration levels required by s 2.120(3) of SEPP TI are expected subject to the conditions in Annexure A. I find that the requirements of SEPP TI are met by the amended development application
The development application is subject to the provisions of Ch 4 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) as it proposes residential flat development (and meets the matters at s 144(3)). Section 147, in Ch 4 of SEPP Housing mandates that the consent authority consider three matters. Firstly, the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Sch 9 the Housing SEPP. Secondly, the Apartment Design Guide (ADG) and thirdly, any advice received from a design review panel within 14 days of the referral of the matter to them.
The development application is accompanied by a design verification statement from Gelder Architects dated 2 February 2026. With the benefit of the documents and the plans, I have considered the design principles and the ADG and accept the agreement of the parties that those matters have been addressed by the amended development application.
The development application was not referred to a Design Review Panel as the panel has not been constituted for Ku-ring-gai Council which is the local government area where the development will be carried out. I am satisfied that the requirements of Ch 4 of SEPP Housing are met.
Further, pursuant to s 163 of SEPP Housing, the site is within a low and mid-rise housing inner area as it is within 165m walking distance of the mapped bounds of St Ives Shopping Village under the SEPP Housing. I find that:

The development application is for BASIX development. Accordingly, Ch 2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings) applies to the development application. The development application, as amended, is accompanied by an (updated) BASIX Certificate, which quantifies the embodied emissions attributable to the development in accordance with s 3.2(2) and Sch 1 of SEPP Sustainable Buildings. The requirements of Ch 2 of SEPP Sustainable Buildings are satisfied.
Pursuant to Ku ring gai Local Environmental Plan 2015 (LEP 2015) the site is zoned R4 High Density Residential. Residential flat buildings are permitted with consent in the zone. In determining the development application, I have given consideration to the objectives of the R4 Residential zone.
Pursuant to cl 6.1 ‘Acid Sulfate Soils’ in LEP 2015 The Site is identified as being affected by Class 5 acid sulfate soils. Pursuant to cl 6.1(2), an acid sulfate soils management plan must be provided to the consent authority prior to consent being granted for development on Class 5 land within 500 metres of adjacent Class 1, 2, 3 or 4 land for works that are below 5 metres Australian Height Datum (AHD) and by which the watertable is likely to be lowered below 1 metre AHD on adjacent Class 1, 2, 3 or 4 land. The Site is not within 500 metres of adjacent Class 1, 2, 3 or 4 land. Accordingly, an acid sulfate soils management plan is not required. Further, the PSI concludes that there is no probability of the occurrence of acid sulfate soils on the site.
Clause 6.2 ‘Earthworks’ in LEP 2015 applies as the development application involves excavation for a basement. The development application is accompanied by Geotechnical Report prepared by Argus Group which assesses the site conditions and provides recommendations. I accept the agreed submission of the parties that appropriate conditions of consent have been included to address required earthworks and the potential impacts of same. In determining whether to grant development consent, I have given consideration to the matters at cl 6.2 and find that none warrant the refusal of the applicant.
Clause 6.5 ‘Stormwater’ of LEP 2015 requires the consent authority to give consideration to the listed matters in determining a development application. With the assistance of the stormwater management plan prepared by Hydracor, I accept the agreement of the parties, that in considering those matters, none warrant the refusal of the development application.
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 the 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.
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)).
In making the orders to give effect to the agreement between the parties, the parties have not raised 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.

| Plan | Drawn by | Dated | | DA 01, Cover Page, Issue P | Gelder Group Architects | 06/02/2026 | | DA 02, Site Analysis, Issue P | Gelder Group Architects | 06/02/2026 | | DA 03, Basement 3, Issue P | Gelder Group Architects | 06/02/2026 | | DA 04, Basement 2, Issue P | Gelder Group Architects | 06/02/2026 | | DA 05, Basement 1, Issue P | Gelder Group Architects | 06/02/2026 | | DA 06, Ground Floor Plan, Issue P | Gelder Group Architects | 06/02/2026 | | DA 07, Typical Floor Plan, Issue P | Gelder Group Architects | 06/02/2026 | | DA 08, Sub Penthouse, Issue P | Gelder Group Architects | 06/02/2026 | | DA 09, Penthouse Plan, Issue P | Gelder Group Architects | 06/02/2026 | | DA 10, Roof/Site Plan, Issue P | Gelder Group Architects | 06/02/2026 | | DA 11, Area Calculations, Issue P | Gelder Group Architects | 06/02/2026 | | DA 12, Elevations, Issue P | Gelder Group Architects | 06/02/2026 | | DA 13, Elevations, Issue P | Gelder Group Architects | 06/02/2026 | | DA 14, Cross Section, Issue P | Gelder Group Architects | 06/02/2026 | | DA 15, Longitudinal Section, Issue P | Gelder Group Architects | 06/02/2026 | | DA 16, Longitudinal Section, Issue P | Gelder Group Architects | 06/02/2026 | | DA 17, Driveway & Ramp Section, Issue P | Gelder Group Architects | 06/02/2026 | | DA 18, 3D Views, Issue P | Gelder Group Architects | 06/02/2026 | | DA 19, Solar Access – Internal Living Area, Issue P | Gelder Group Architects | 06/02/2026 | | DA 20, Solar Access – External Private Area, Issue P | Gelder Group Architects | 06/02/2026 | | DA 21, Shadow Diagrams, Issue P | Gelder Group Architects | 06/02/2026 | | DA 22, ESCP Plan, Issue P | Gelder Group Architects | 06/02/2026 | | DA 23, Material Finishes Schedule, Issue P | Gelder Group Architects | 06/02/2026 | | DA 24, Site Photographs, Issue P | Gelder Group Architects | 06/02/2026 | | DA 25, Cut and Fill Plan, Issue P | Gelder Group Architects | 06/02/2026 | | DA 26, Site Coverage, Issue P | Gelder Group Architects | 06/02/2026 | | DA 27, Height Blanket Diagram 17.5m, Issue P | Gelder Group Architects | 06/02/2026 | | DA 28, Overlay of Previous Plans, Issue P | Gelder Group Architects | 06/02/2026 | | DA 29, Floor to Ceiling Height Compliance, Issue P | Gelder Group Architects | 06/02/2026 |