McCutcheon v Ku-ring-gai Council

Texts Cited: Ku-ring-gai Community Participation Plan

Category: Principal judgment

Parties: Kate McCutcheon (First Applicant)
Richard Horton (Second Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
S Kondilios (Solicitor) (Applicant)
A Stafford (Respondent)
Solicitors:
Hall & Wilcox (Applicant)
Shaw Reynolds (Respondent)

File Number(s): 2024/238749

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: Alterations and additions to a house designed by American architect Walter Burley Griffin and Australian architect Eric Nicholls in the Sydney suburb of Killara are the subject of Development Application No. 0385/23 (the DA).

2. The house is known by the name ‘Inverness’ and is widely accepted to have been commissioned by Allan and Eunice Cameron sometime in 1932.

3. The proposed scope of the alterations and additions may be summarised as follows:

4. Excavation of the lower ground floor to accommodate mud room, WC and store.

5. Internal alterations to the ground floor to accommodate changes to room layout, removal of two rear windows and replacement with two new windows.

6. Demolition of the existing swimming pool and existing dressing room and replacement with a new swimming pool and habitable outbuilding to the rear of the site.

7. Construction of a new gazebo with skillion roof and associated landscaping to the rear of the site.

8. The DA was lodged by the Applicants in these proceedings, Ms Kate McCutcheon and Mr Richard Horton (together the Applicant’s) with Ku-ring-gai Council (the Council) on 10 October 2023.

9. The Council notified the DA from 24 October 2023 to 7 November 2023 in accordance with the Ku-ring-gai Community Participation Plan in response to which a submission was received from Sydney Water.

10. The Council refused the DA on 31 May 2024, and the Applicant’s filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in Class 1 of the Court’s jurisdiction on 1 July 2024.

11. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference was presided over by the late Acting Commissioner Byrne on 4 December 2024. The parties were unable to reach an agreement at the conciliation, and the matter proceeded forthwith to a hearing under s 34AA(2)(b)(i) on 4 and 5 December 2024. Following the hearing, Acting Commissioner Byrne reserved her decision on the appeal. Sadly, after doing so, Acting Commissioner Bryne became unwell and passed away before delivering judgment.

12. Consistent with the provisions in s 88 of the Civil Procedure Act 2005 (NSW) and s 36 of the LEC Act, the Chief Judge of the Court allocated the appeal to me for hearing.

13. On the eve of the hearing, the parties advised that amendments proposed by the Applicants have the effect of addressing all matters in contention. As such, the issues were resolved.

14. That said, given the particular circumstances of the matter, the Court is re-hearing the matter following the termination of the conciliation by Acting Commissioner Byrne.

15. At the outset of the hearing, the Applicants sought leave, unopposed, to rely upon amended plans and other documents contained in a bundle later marked Exhibit M comprising the following:

| Plan no. | Drawn by | Dated | | Architectural Plans | | 2203.01C | Gerald Morcombe Residential Architecture | 03/2024 | | *2203.02F | Gerald Morcombe Residential Architecture | 09/2025 | | *2203.03G | Gerald Morcombe Residential Architecture | 09/2025 | | *2203.04E | Gerald Morcombe Residential Architecture | 08/2025 | | *2203.05G | Gerald Morcombe Residential Architecture | 09/2025 | | *2203.06E | Gerald Morcombe Residential Architecture | 04/12/2024 | | *2203.07F | Gerald Morcombe Residential Architecture | 08/2025 | | *2203.08G | Gerald Morcombe Residential Architecture | 09/2025 | | *2203.09D | Gerald Morcombe Residential Architecture | 09/2025 | | Stormwater Management Plans | | *CC240133 Dwg. No. C1 – C4 Rev. ‘A’ | Hydracor Consulting Engineers | 5/12/2024 | | Heritage Construction Management Plans | | *Dwg No. CM1-CM6 Issue 02 | Hyrdacor Consulting Engineers | 30/09/2025 |

| Document(s) | Dated | | *BASIX Certificate No. A1810929_03 | 29/09/2025 | | Arboricultural Impact Assessment Report prepared by Earthscape Horticultural Services | September 2023 | | Schedule of Finishes prepared by Gerald Morcombe Residential Architecture | 03/2024 | | Sample Board prepared by Gerald Morcombe Residential Architecture | 03/2024 | | Structural Engineers Report prepared by Leigh D Appleyard | 03/12/2024 | | Geotechnical Investigation Ref: J5109 prepared by White Geotechnical Group Pty Ltd | 12/09/2023 | | Waste Management Plan | 09/2023 | | Pre-Lodgment Application Form | 10 October 2023 | | Owner’s Consent | 22 September 2023 | | Site Survey Plan prepared by Richards and Loftus | 2 May 2023 | | Statement of Environmental Effects prepared by Metris Urban Planning | 28 September 2023 | | Heritage Impact Statement prepared by Umwelt | September 2023 |

12. The site may be described briefly as follows:

13. It is located on the northern side of Marian Street, with a moderate slope falling to the street.

14. It has a width of 30.175m when measured at the front of the site and a total area of 2,415.5m2.

15. Existing structures on the site include the existing dwelling, a swimming pool and tennis court to the rear, paved terrace and metal shed.

16. The site is located in an area designated R2 Low Density Residential according to the Ku-ring-gai Local Environmental Plan 2015 (KLEP), in which development of a kind proposed is permitted with consent, where consistent with the following objectives for development in the zone:

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

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

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

14. The proposed development complies with the height and floor space ratio standards at cll 4.3 and 4.4 of the KLEP.

15. The site is identified in Sch 5 of the KLEP for its local heritage significance, and is located within the Marian Street Heritage Conservation Area (Marian Street HCA), and also adjoins other items of heritage significance, namely Regimental Park Killara Reservoir to the approximate north of the site, that is also designated SP2 Infrastructure in the ownership of Sydney Water and No’s 27 and 29 Marian Street to the approximate east of the site. As such, the provisions at cl 5.10 of the KLEP apply to the proposal.

16. It is commonly held that the heritage significance of Inverness is described in the Statement of Significance found in the State Heritage Inventory database as follows:

“Built in 1933, Inverness is a significant intact example of the domestic architecture of Walter Burley Griffin, Marion Mahony Griffin and Eric Nicholls which largely retains the integrity of its original layout, design and decorative detailing. Aesthetically, the house demonstrates the work of Griffin, in particular an insight into his American background and Prairie school training in contrast to his typical bushland setting houses in Castlecrag. The house and its landscape are valuable research resources for the study of the Griffins’ work.

The house is a rare example of the architecture of the Griffins in Ku-ring-gai and is one of very few in Sydney for which the original drawings and rendered perspectives have survived, providing an important insight into their work. Built in 1933, Inverness is a significant intact example of the domestic architecture of Walter Burley Griffin, Marion Mahony Griffin and Eric Nicholls which largely retains the integrity of its original layout, design and decorative detailing. Aesthetically, the house demonstrates the work of Griffin, in particular an insight into his American background and Prairie school training in contrast to his typical bushland setting houses in Castlecrag. The house and its landscape are valuable research resources for the study of the Griffins’ work. The house is a rare example of the architecture of the Griffins in Ku-ring-gai and is one of very few in Sydney for which the original drawings and rendered perspectives have survived, providing an important insight into their work. Inverness is of local heritage significance in terms of its historical, associations, aesthetic and rarity value, satisfying four of the Heritage Council criteria of local heritage significance for local listing.”

17. On the basis of the amended plans, the parties agree and I accept that the proposal is respectful of the original dwelling and its setting, and that the heritage significance of the site is not adversely impacted by the proposal described at [3]. Neither does the proposal adversely impact the Marian Street HCA or adjoining heritage items in my view. In particular, I note the absence of external indications of the internal changes proposed at the lower ground floor level. The existing garage door and bounding walls are retained without opening or amendment. As such the dwelling will retain the presentation to Marian Street consistent with that shown in the historical record (Exhibits 5 and 6)

18. The site is identified on the relevant Acid Sulfate Soils (ASS) Map at cl 6.1(2) of the KLEP as being Class 5 land. However, the site does not adjoin Class 1, 2, 3 of 4 land and it is unlikely that the water table would be lowered by 1m given the extent of excavation proposed and elevation of the site.

19. Likewise, in considering the earthworks proposed at the lower ground floor of the dwelling I have had particular regard to the following:

20. Geotechnical Investigation prepared by White Geotechnical Group dated 12 September 2023 (Exhibit M, Tab 9), and by those agreed conditions of consent at Conditions 1 and 27 requiring conformity with recommendations contained therein.

21. The extent and method of excavation and underpinning proposed within the existing heritage dwelling set out in the Heritage Construction Management Plan prepared by Hydrocor Consulting Engineers Pty Ltd and dated 30 September 2025 Rev 2 (Exhibit M, Tab 3).

22. Amended Stormwater plans prepared by StormCivil (Exhibit M, Tab 2) which address the earthworks to be completed on the Site, including that required for the swimming pool, summer house and gazebo at the rear of the dwelling, the provision of a 5,000L rainwater tank for the reuse of water on the site and first flush systems to manage water quality.

23. Accordingly, I accept that the earthworks proposed adequately address those matters to be considered at cl 6.2(3) of the KLEP.

24. The Amended Stormwater Plans also satisfy me that water sensitive urban design principles are incorporated in the development by the collection of stormwater runoff via first flush devices, its retention and reuse so that potential adverse environmental impacts are likely to be avoided in terms required by cl 6.5 of the KLEP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

22. The site is located within the Sydney Harbor catchment. As such, Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies controls, relevantly, as to water quality and quantity, aquatic ecology, flooding, and total catchment management.

23. On the basis of the amended stormwater plans prepared by Stormcivil, the parties agree that that water conservation is achieved by use of a 5,000L rainwater tank proposed in the rear setback. Given the use of first flush devices connected to the rainwater tank, I am satisfied that the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial impact, in accordance with s 6.6(2)(a), and that water flow in or to a natural waterbody will be minimised, pursuant to s 6.6(2)(b) of the Biodiversity SEPP.

24. For similar reasons I have also considered those matters at s 6.7(1) of the Biodiversity SEPP and am satisfied there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation, and result in no adverse impact on aquatic reserves, or in terms of erosion.

25. I note that the site is not identified as flood liable land to which s 6.8 of the SEPP is directed and so does not apply. Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

State Environmental Planning Policy (Sustainable Buildings) 2022

26. The application is accompanied by a BASIX certificate (Cert No. A1810929_03 dated 29 September 2025) prepared in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

27. On the basis of the report prepared by Frys Building Consultancy Pty Ltd (Exhibit O) the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified as required by s 2.1(5) of the Sustainable Buildings SEPP.

28. In accepting the report above, I note there is no threshold or compliance target required of an applicant in respect of embodied emissions. While the Court is regularly advised of difficulties encountered by parties seeking to quantify embodied emissions using the calculator available on the Department of Planning, the requirement to quantify those emissions is clearly stated in s 2.1(5), notwithstanding those difficulties.

State Environmental Planning Policy (Resilience and Hazards) 2021

29. I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. On the basis of the historical chronology set out in the Heritage Impact Statement prepared by Umwelt dated September 2023, I accept the use of the site has been residential and is unlikely to be contaminated. As such, I am satisfied the site is suitable for the purpose for which development is proposed to be carried out.

Public submissions

30. The Council advises that no public submissions were received in respect of the proposal, other than a submission authored by Sydney Water in respect of works in the vicinity of an easement. The Council took the Court to the Amended Stormwater Plans and identified the change in location of the proposed drainage connection to Council’s stormwater network that is proposed to be under-bored to avoid damage to existing trees on the site, and distant from the Sydney Water easement.

Conclusion

31. I am satisfied that the proposed development warrants the grant of development consent, subject to conditions of consent that are agreed between the parties (Exhibit N), in accordance with s 4.17 of the EPA Act.

32. The Court notes that Ku-ring-gai Council, as the relevant consent authority, under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), approves the amending of development application No.0385/23 by the following amended plans and terms of those conditions of consent agreed between the parties.

33. Amended architectural plans prepared by Gerald Morcombe Residential Architecture comprising drawings numbered 2203.01C (03/2024), 2203.02F (09/2025), 2203.03G (09/2025), 2203.04E (08/2025), 2203.05G (09/2025), 2203.06E (04/12/2024), 2203.07F (08/2025), 2203.08G (09/2025), 2203.09D (09/2025);

34. Stormwater Management Plan CC240133 Dwg. No. C1 – C4 Rev. ‘A’ prepared by Hydracor Consulting Engineers dated 5/12/2024;

35. Heritage Construction Management Plan Dwg No. CM1-CM6 Issue 02 prepared by Hydracor Consulting Engineers dated 30/9/2025; and

36. BASIX Certificate No. A1810929_03 dated 29/9/2025.

Orders

33. The Court orders that:

34. The appeal is upheld.

35. Development Application No. 0385/23 as amended, for alterations and additions to an existing dwelling including new swimming pool, habitable outbuilding, gazebo, landscaping and associated works at 33 Marian Street, Killara NSW 2071 is determined by the grant of consent, subject to the conditions of consent at Annexure A**.**

……………………

T Horton

Commissioner of the Court

Annexure A (317 KB, pdf)

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