Inhabit Selective Pty Ltd as the Trustee for the Inhabit Selective Trust v Ku-ring-gai Council

Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment

Parties: Inhabit Selective Pty Ltd as the Trustee for the Inhabit Selective Trust (Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
S Kondilios (Solicitor) (Applicant)
A Rutherford (Solicitor) (Respondent)
Solicitors:
Hall & Wilcox (Applicant)
HWLE Lawyers (Respondent)

File Number(s): 2025/319510

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of development application eDA0436/24 for alterations and additions to an existing dwelling, new swimming pool, dual garage and associated works (DA) at 48 Lord Street, Roseville (Lot A in DP 331259) (site).

2. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg 2021) to the Applicant amending eDA0436/24 in accordance with the documents listed below:

| Approved Plans | | Plan Number | Revision Number | Plan Title | Drawn By | Date of Plan | | DA00 | C | Cover Page | McCullum Ashby Architects | 17 December 2025 | | DA01 | C | Project Notes | McCullum Ashby Architects | 17 December 2025 | | DA02 | C | Development Data | McCullum Ashby Architects | 17 December 2025 | | DA03 | C | Site Analysis Plan | McCullum Ashby Architects | 17 December 2025 | | DA04 | C | Existing Site Plan | McCullum Ashby Architects | 17 December 2025 | | DA05 | C | Existing Ground Floor Plan | McCullum Ashby Architects | 17 December 2025 | | DA06 | C | Proposed Site Plan | McCullum Ashby Architects | 17 December 2025 | | DA07 | C | Proposed Ground Floor Plan | McCullum Ashby Architects | 17 December 2025 | | DA08 | C | Proposed First Floor Plan | McCullum Ashby Architects | 17 December 2025 | | DA09 | C | Proposed Elevations (1 of 2) | McCullum Ashby Architects | 17 December 2025 | | DA10 | C | Proposed Elevations (2 of 2) | McCullum Ashby Architects | 17 December 2025 | | DA11 | C | Proposed Sections | McCullum Ashby Architects | 17 December 2025 | | DA12 | C | Proposed Shadow Elements | McCullum Ashby Architects | 17 December 2025 | | DA13 | C | Fence and Gate Elevations | McCullum Ashby Architects | 17 December 2025 | | L-01 | D | Site Plans | Site Design + Studios | 10 December 2025 | | L-02 | D | Rear Yard Detail Landscape Plan | Site Design + Studios | 10 December 2025 | | L-03 | D | Front Yard Detail Landscape Plan | Site Design + Studios | 10 December 2025 | | L-04 | D | Planting Details | Site Design + Studios | 10 December 2025 | | L-05 | D | Notes | Site Design + Studios | 10 December 2025 | | L-06 | D | Specification | Site Design + Studios | 10 December 2025 | | Document Title | Version Number | Prepared By | Date of Document | | BASIX certificate No. A1766222_02 | | | 18/12/2025 | | Waste Management Plan prepared by McCullum Ashby Architects | 20/08/2024 | Waste Management Plan prepared by McCullum Ashby Architects | 20/08/2024 |

3. 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 11 February 2026. I presided over the conciliation conference.

4. The parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended DA and granting development consent to the amended application subject to conditions of consent.

Jurisdictional Prerequisites

5. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there “are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement” and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60] to [65].

8. I have carried out the required jurisdictional check (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 at [202]). For the reasons set out below, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions as required by s 34(3) of the LEC Act.

Owner’s consent

9. I accept the parties’ agreement that owner’s consent accompanied the development application.

Community notification and objections

10. Council notified the DA between 8 November 2024 and 22 November 2024. Three submissions were received. The Court heard oral submissions from three objectors who raised concerns in relation to setbacks, privacy, screening and landscaping. The parties advised that the plans subject to the agreement were shown to the two registered objectors.

11. Different from the consideration of the Court at a hearing, as the parties have entered into an agreement, the Court’s role is limited to ensuring that there is power to grant consent, and not to considering the merits of the issues raised (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 at [217]).

12. In reaching agreement, the parties have advised the Court that they considered the concerns raised in the written and oral objections and where possible, that these have been addressed through amendments made to the proposal.

Biodiversity Conservation Act 2016

13. The site is identified as partially containing land on the NSW Biodiversity Values Map. The parties are satisfied that the mapped vegetation area is outside of the area of the proposed development, and that no native vegetation is proposed to be cleared. I accept that there are no impacts to biodiversity values as contemplated by the Biodiversity Conservation Act 2016 (NSW).

Ku-ring-gai Local Environmental Plan 2015

14. The site is zoned R2 Low Density Residential under the Ku-ring-gai Local Environmental Plan 2015 (KLEP). The proposed development for alterations and additions to a dwelling house is permitted with consent and regard has been had to the objectives of the zone.

15. The parties agree and I accept that the following applicable provisions are met:

16. Clause 2.7 permits demolition with consent.

17. Clause 4.3 sets a maximum building height of 9.5m. The amended architectural plans prepared by McCullum Ashby Architects Revision C (architectural plans) demonstrate the amended DA is below 9.5m at approximately 7.74m.

18. Clause 4.4 floor space ratio (FSR) applies to the site, being 0.3:1. Clause 4.4(2A) is triggered by the proposal and allows a maximum FSR of 0.348:1. The architectural plans demonstrate that the amended DA proposes a compliant FSR of 0.31:1.

19. Clause 5.10 heritage conservation applies to the site as it is located within the Clanville Heritage Conservation Area and is in the vicinity of local heritage items. On the basis of the Heritage Impact Statement prepared by Weir Phillips dated 2 October 2024 and amendments made to the proposal as agreed by the heritage experts in the Heritage Joint Expert Report filed 9 December 2025, I accept that the provisions have been adequately addressed.

20. Clause 6.1 acid sulfate soils applies (ASS), however the proposed works will not lower the watertable below 1m Australian Height Datum of adjacent ASS and a management plan is not required.

21. Clause 6.2 earthworks applies to the proposed development. I accept from the architectural plans, stormwater management plans prepared by Barwell Hydraulic Design dated August 2024 (stormwater plans) and conditions of consent that the controls have been adequately considered.

22. The parties state that cl 6.3 biodiversity protection does not apply as the site is not identified on the Terrestrial Biodiversity Map. However, the site is identified as partially containing land on the NSW Biodiversity Values Map. I accept that the intrusion is minor and that the mapped location is outside the development area, as detailed in the Statement of Environmental Effects prepared by Minto Planning Services dated 8 October 2024 (SEE).

23. Clause 6.5 stormwater and water sensitive urban design applies to the development. On the basis of the stormwater plans, the amended DA demonstrates that it minimises stormwater impacts on site and on adjoining sites, maximises permeable surfaces, provides water reuse through the water tanks and minimises impacts on the public drainage system. I accept that the provisions of cl 6.5 are satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP) applies as the site is located in the Sydney Harbour Catchment. I accept the agreement of the parties, as detailed in the jurisdictional statement and demonstrated by the stormwater plans, that the provisions of Ch 6 have been satisfied. I accept that the proposed development will have a neutral or beneficial effect on water quality, that the development will not have adverse impacts on the environment (as referred to in the SEPP) and that the proposed stormwater management system will adequately manage water on site. I also accept the parties’ agreement that the proposal is not heritage development, as defined by the SEPP, as it is not a heritage item, Aboriginal place of heritage significance or listed in the relevant schedule.

State Environmental Planning Policy (Resilience and Hazards) 2021

17. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The amended DA does not involve a change of use and has a history of residential use. There is no evidence of prior contamination. Accordingly, the parties agree, and I accept that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Sustainable Buildings) 2021

18. The parties agree and I am satisfied that the amended DA is accompanied by an amended BASIX Certificate that meets the provisions of the State Environmental Planning Policy (Sustainable Buildings) 2021.

Heads of consideration

19. On the basis of the documentation accompanying the Class 1 appeal and the jurisdictional statement I accept that the heads of consideration of s 4.15 of the EPA Act have been considered.

Conclusion

20. 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’ decision.

21. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

22. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders:

23. The Court orders:

24. The Appeal is upheld.

25. Development Application Number eDA0436/24, as amended, for the proposed alterations and additions to an existing dwelling, new swimming pool, dual garage, and associated landscaping works at 48 Lord Street, Roseville is determined by the grant of development consent subject to conditions contained in Annexure A.

S Porter

Commissioner of the Court

Annexure A (357 KB, pdf)

**********