Lin v Ku-ring-gai Council

Category: Principal judgment

Parties: Qiang Lin (First Applicant)
LQ Building Services Pty Ltd (Second Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
N Eastman SC (Applicant)
C Morton (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Sparke Helmore (Respondent)

File Number(s): 2025/95647

Publication restriction: Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Ku-ring-gai Council, of development application eDA0009/24. This application seeks consent for the construction of a new 2 storey dwelling, swimming pool, cabana, tennis court and associated works at 17 Larchmont Avenue, East Killara, Lot 19 in DP 24293.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and are being heard concurrently with matter number 2025/95646 for the neighbouring lot.

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, over which I presided on 1 September 2025.

4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision 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.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicants amending the development application to reflect the outcomes of the joint expert reports, and to adequately resolve the Council’s contentions.

6. 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 identified and explained, and from this I note the following points.

Jurisdictional matters

7. The development applications were made with the written consent of the owner of the land.

8. The application was adequately notified from 4 to 18 March 2024. No submissions were received.

9. The subject site is zoned R2 Low Density 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.

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

11. 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.

12. Based on the Engineering Report by Martens dated 12 August 2025 and the parties’ submission, I accept that the earthworks-related matters listed in KLEP cl 6.2(3) have been considered, and the proposed earthworks are acceptable pursuant to this clause.

13. From the stormwater drainage plans by MBC Engineering Pty Ltd in the amended application and the parties’ submission, I accept that the stormwater and water sensitive urban design of the proposed development meets the requirements of KLEP cl 6.5.

14. The site is located within the Sydney Harbour Catchment and therefore Pt 6.5 of Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies. From the parties’ submission and the information in the amended application, I accept that the requirements of Ch 6 of SEPP B&C relating to water quality and quantity (s 6.6) and aquatic ecology (s 6.7) are met with the proposed development. I further accept that the proposed development is not flood liable land (s 6.8) 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).

15. 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.

16. A BASIX certificate has been provided that relates to the development as amended, as required by s 27 of the EPA Regulation. This certificate demonstrates that the embodied emissions attributable to the development have been calculated, as required pursuant to State Environmental Planning Policy (Sustainable Buildings) 2022 s 2.1.

Conclusion

17. 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 subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

18. The Court notes that the respondent, as the relevant consent authority has agreed, under s 38(1) and (4) of the EPA Regulation, to the applicants amending the development application eDA0009/24 in Annexure B.

19. The Court orders:

20. The appeal is upheld.

21. Development application eDA0009/24 for the for the construction of a new dwelling, swimming pool, cabana, tennis court with associated works at 17 Larchmont Ave, East Killara NSW (legally described as Lot 19 DP 24293) is determined by the grant of consent, subject to the conditions set out in Annexure A.

E Washington

Commissioner of the Court

Annexure A (388 KB, pdf)

**********