Li v Ku-ring-gai Council

Category: Principal judgment

Parties: Qing Yang Li (1st Applicant)
Qiao Lin (1st Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
C Ireland (Applicant)
D Robertson (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/57775

Publication restriction: No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Ku-ring-gai Council, of development Application No. eDA0484/24 which seeks consent for the demolition of an existing pool and rear room, alterations and additions to an existing dwelling, construction of a new pool and half basketball court, modified driveway and associated landscaping on Lot 11 in DP 63283, known as 397 Bobbin Head Road, North Turramurra.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 22 and 23 July 2025, and over which I presided. During the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.

4. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application. These amendments included:

5. A reduction in the height and length of the proposed extension

6. Modifications to the stormwater plans

7. A reduced extent of paving to the driveway in several locations.

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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 jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties explained in a jurisdictional note and from which I note the following points.

Jurisdictional matters

6. The development application was made with the written consent of the owner of the land.

7. The application was adequately notified from 2 December 2024 for 14 days. No submissions were received in this time.

8. Tree removal is requested as part of this development application, pursuant to the requirements of Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C). This request is supported by an Arboricultural Impact Appraisal and Method Statement prepared by Naturally Trees dated 15 July 2025, and the parties submit and I accept that the proposed tree removal is acceptable.

9. The site is located within the Hawkesbury-Nepean Catchment and therefore Pt 6.5 of Ch 6 of the SEPP B&C applies. From the parties’ submission and the joint report of Engineering experts, I accept that the requirements of Ch 6 of SEPP B&C relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met with the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10), and is not located within 100 m of a natural waterbody (s 6.11).

10. A BASIX certificate has been provided that relates to the development as amended, pursuant to the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

11. Bobbin Head Road is a classified road, and therefore the provisions of s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) apply. There is no alternative vehicular access other than from Bobbin Head Road, and the parties submit, and I accept that the development does not intensify the density of the site which is already occupied by a single dwelling, and therefore the safety, efficiency and ongoing operation of this road will not be adversely affected by the development as a result of any of the matters listed in s 2.119(2)(b). I further accept that the development has been appropriately located and designed to ameliorate potential traffic noise or vehicle emissions, noting that the position of the site along Bobbin Head Road means that it is not heavily trafficked by vehicles.

12. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. From the parties’ submission and the Statement of Environmental Effects, I accept that the subject site has historically been used for residential purposes and there is no record of any contamination, or contaminating activity on site. Accordingly, I accept that in terms of contamination, the site is suitable for the intended, continued residential use.

13. The subject site is zoned R5 – Large Lot Residential under the Ku-ring-gai Local Environmental Plan 2015 (KLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

14. Pursuant to KLEP cl 4.3, a maximum building height of 9.5 m applies to the subject site, which the proposed development complies with.

15. KLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.3:1. The proposed development again complies with this development standard with a maximum FSR of 0.1579:1.

16. The existing dwelling, ‘Lynesta’, is listed as Heritage Item I489 under KLEP Sch 5. From the amended architectural plans, the Statement of Heritage Impact by GBA Heritage dated September 2024, and the parties’ submissions, I accept that the proposed development will not adversely impact the heritage significance of the heritage item, meeting the requirements of KLEP cl 5.10. I note that the heritage dwelling itself is only proposed to be refurbished, and for an original fireplace to be reinstated. The remainder of the alterations and additions will be entirely separate from the dwelling, and will have an acceptable impact on the setting and grounds due to its location and design.

17. The site is not mapped as containing land of biodiversity significance on the NSW Biodiversity Values Map nor Council’s terrestrial biodiversity map. Noting the proposed tree removal and replacement, and landscape works, as proposed on the landscape drawings by Rolling Stone Landscapes dated 12 June 2025, I accept that there are no adverse impacts on terrestrial biodiversity resulting from the proposed development.

Conclusion

18. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions and accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

19. The Court notes:

20. Ku-ring-gai Council as the relevant consent authority has agreed, under s 38 of the EPA Regulation, to the applicant amending the development application number eDA0484/24 in accordance with the plans and documents listed below:

| Plan no. | Drawn by | Dated | | Architectural Plans | | Project sheet DA-01 (Context / Site Analysis Plan) – Rev A DP-01 (Demolition plan) – Rev A DA-02 A (Site Plan) – Rev F DA-03 A (Ground Floor Plan) – Rev F DA-04 A (First Floor Plan) – Rev F DA-05 (Elevations, Pool Section) – Rev F DA-06 (Elevations) – Rev F | Lindsay Little & Associates Pty Ltd | 07/06/24 07/06/24 23/07/25 23/07/25 23/07/25 23/07/25 | | Landscape Plans | | L.P.6-1. L.P.6-2. L.P.6-3. L.P.6-4. | Rolling Stone Landscapes | 12/06/2025 12/06/2025 12/06/2025 12/06/2025 | | Stormwater Management Plans | | Storm-1/D Storm-2/D | Taylor Consulting | 14/07/2025 14/07/2025 |

| Document(s) | Dated | | Arborist Report prepared by Urban Arbor Pty Ltd Ref: 240813_397 Bobbin Head_AIA_ Revision D | 15/07/2025 | | Basix certificate No. A1763427_02 | 18/07/2025 | | Colours and finishes schedule prepared by Lindsay Little & Associates Pty Ltd | 12/05/2025 | | Heritage Impact Statement prepared by GBA Heritage Ref: Issue B | 16/09/2024 | | Schedule of Conservation Works prepared by GBA Heritage, Issue B | 8/07/2024 | | Waste Management Plan prepared by Lindsay Little & Associates Pty Ltd | September 2024 |

20. The Court orders:

21. The appeal is upheld.

22. Development Application eDA0484/24 for the demolition of a gazebo and swimming pool, construction of an attached two storey addition, swimming pool, cabana, sports court, modified driveway and associated works at Lot 11 in DP632893, being 397 Bobbin Head Road, North Turramurra is determined by the grant of consent subject to the conditions set out in Annexure ‘A’ to this agreement.

E Washington

Commissioner of the Court

Annexure A (352 KB, pdf)

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