MSV Ultima Pty Ltd v Ku-ring-gai Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 37, 38
Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 5.10, 6.3, 6.5
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.9, 6.10
State Environmental Planning Policy (Housing) 2021, Ch 4, Pt 5, Schs 4, 8, ss 79, 81, 82, 84, 85, 88, 93, 95, 97, 108
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Texts Cited: Ku-ring-gai Council Community Participation Plan
NSW Department of Planning and Environment, Seniors Housing Design Guide 2023

Category: Principal judgment

Parties: MSV Ultima Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
A Hannam (Applicant)
J Smith (Respondent)
Solicitors:
Tyrrells Planning Law (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2025/80395

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), brought by MSV Ultima Pty Ltd (the Applicant), against the deemed refusal of Development Application eDA0586/24 (the DA) by Ku-ring-gai Council (the Respondent).

2. At the date of its lodgement on 13 January 2025, the DA sought consent for the demolition of existing structures, lot consolidation, construction of ten independent living units, engineering, landscaping and associated works at 91 and 93 Carrington Road, Wahroonga (the site).

3. The matter was listed for hearing before me over two days on 3 and 4 December 2025, however shortly after the site view at the commencement of the hearing, the parties indicated to me the prospect of an agreement being reached. After returning to Court, I granted a short adjournment to allow the parties to finalise a formal agreement, which was filed with the Court on the afternoon of 3 December 2025.

4. Consequently, the Chief Judge re-allocated the matter as a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) and listed the matter before me later on the afternoon of 3 December 2025.

5. During this resumed conciliation conference, the parties set out for me the terms of their agreement. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

6. Of particular note, after earlier amendments made during the joint conferencing process, the proposal has now been further amended by agreement between the parties to resolve the remaining contentions pressed by the Respondent.

7. The Respondent’s contentions initially included issues of owners consent, a failure to provide universal access, a failure to demonstrate appropriate access to a public transport service, inadequate footpath access, a failure to promote good design, privacy and cross viewing impacts upon neighbouring properties, inadequate landscape amenity, unacceptable impacts upon trees, unacceptable impacts on an adjoining heritage item, and insufficient information, amongst other contentions.

8. By the date of the hearing, these contentions had narrowed significantly to residual issues of access to a public transport service, inadequate footpath access and impacts upon trees. Agreed design amendments have now been made to resolve these issues. These final agreed amendments also include earlier design changes introduced by the Applicant during the joint reporting process, which are agreed to resolve the remaining contentions in the dispute.

9. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

11. In that regard, I am satisfied the DA was made with the consent of the owners of the land, evidenced within the Class 1 Application accompanying this matter.

12. The DA was publicly notified in accordance with the Respondent’s Community Participation Plan between 24 January and 25 February 2025. A total of eight submissions were received by the Respondent raising concerns including:

13. Inadequate, inconsistent and insufficient documentation.

14. Adverse impacts to the nearby heritage item at 98 Junction Road.

15. Stormwater impacts and concerns for sediment and erosion control, and flooding.

16. Concern regarding tree impacts and removal, and associated biodiversity impacts.

17. Privacy and amenity impacts to adjoining properties.

18. Inadequate tree and vegetation replacement.

19. Concerns for noise and vibration associated with excavation, earthworks, and retaining walls, soil stability, planting and associated structural impacts on neighbouring properties.

20. Non-compliance with relevant non-discretionary standards dealing with housing for seniors.

21. Inconsistency with the Respondent’s planning controls.

22. Lack of consultation with neighbouring properties.

23. Non-compliance with the objectives of the land use zone.

24. Inadequate carbon offset and climate mitigation in the local area.

25. Construction phase impacts of dust and pollution.

26. Impacts to stormwater easements and sewer lines benefitting neighbouring properties.

27. Impacts of the proposed footpath upon services and street trees.

28. Traffic, parking and visitor parking impacts, and pedestrian safety impacts.

29. Inconsistency with the existing streetscape character.

30. Impact on property values.

31. Inadequate local infrastructure and services.

32. Inadequate waste collection and storage.

33. Impacts to neighbouring swimming pool compliance.

34. On 10 October 2025, by way of notice of motion, the Registrar of the Court granted leave to the Applicant to amend the DA. The amended DA was re-notified for a period of fourteen days between 14 October and 28 October 2025.

35. The Respondent received a number of further objections in response to this re-notification, generally restating earlier concerns, but also raising a number of additional concerns, including:

36. Acoustic impacts of air conditioning units.

37. Inadequate solar access and cross ventilation to proposed Villa 4.

38. The absence of a new transport report.

39. Encroachments of retaining walls and boundary fencing into neighbouring properties, and clarification required regarding materials of fencing and its relationship with neighbouring properties.

40. Impacts of proposed street lighting.

41. The proposal setting an undesirable precedent.

42. On 27 November 2025, by way of a further notice of motion, the Registrar of the Court granted leave to the Applicant to further amend the DA, which was made returnable at the commencement of the hearing.

43. At the site view on the morning of 3 December 2025, a number of affected local residents addressed the Court to restate their concerns and the Court walked the length of the proposed footpath to directly observe the path of travel, kerb crossings, existing trees, existing bus stop locations, and the location of proposed rest stops.

44. The parties agree, and I am satisfied, that the final amended DA resolves a range of concerns raised by the objectors, primarily by earlier amendments to the proposed building form, its siting, bulk and scale, and by amending the footpath design to ensure no unreasonable impacts upon existing trees.

45. Accordingly, I am satisfied, that the final amended DA and conditions of consent now satisfactorily address the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

46. The parties agree, and I am satisfied, that the Ku-ring-gai Local Environmental Plan 2015 (KLEP) is the relevant local environmental planning instrument. The site is zoned R2 Low Density Residential. The final amended DA - characterised as seniors housing development in the form of ten independent living units - is permissible with consent within the R2 zone.

47. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the KLEP, the final amended DA is consistent with the R2 Low Density Residential zone objectives, which include 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; and to provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

48. The parties agree, and I am satisfied, that all principal development standards of the KLEP have been met by the final amended DA.

49. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the KLEP - Heritage conservation - the site is not an identified heritage item, nor is it situated within a Heritage Conservation Area. It does however share a rear boundary with an adjacent heritage item on Junction Road. The parties agree and I am satisfied that the final amended DA brings with it no unreasonable impacts upon the heritage significance of this item.

50. The parties agree, and I am satisfied, that pursuant to cl 6.3 of the KLEP - Biodiversity protection - the site is mapped as ‘Biodiversity’ on the relevant Terrestrial Biodiversity Map. The Applicant has provided a Flora and Fauna Assessment, prepared by Narla Environmental and dated 17 December 2024. This Assessment concludes that no native vegetation communities are located within the site, and instead the site is characterised by vegetation typical of an urban garden environment.

51. Accordingly, I am satisfied that those matters set out at cl 6.3(3) of the KLEP have been given appropriate consideration and that the Court can be satisfied of the matters set out at cl 6.3(4) of the KLEP.

52. The parties agree, and I am satisfied, that pursuant to cl 6.5 of the KLEP - Stormwater and water sensitive urban design - the final amended DA satisfactorily addresses those matters set out at cl 6.5(2). The Applicant has provided a letter, prepared by Hydracor Consulting Engineers, which addresses each of the requirements of cl 6.5(2).

53. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument.

54. Chapter 4 of SEPP Resilience deals with remediation of land. Pursuant to s4.6 of SEPP Resilience, the parties agree, and I am satisfied, that the long-term pre-existing use of the site has been for residential purposes and is unlikely to be contaminated, and that the proposed use of the land is to remain residential in nature.

55. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

56. Chapter 6 of SEPP BC deals with water catchments. The parties agree, and I am satisfied, that the site is situated within the Sydney Harbour Catchment. The Applicant has provided a letter, prepared by Hydracor Consulting Engineers, which addresses each of the following relevant points.

57. Pursuant to the provisions of s 6.6 of SEPP BC, the parties agree, and I am satisfied, that the final amended DA will not create adverse impacts upon water quality and quantity within the catchment. Agreed conditions of consent are imposed to control erosion and sediment during construction.

58. Pursuant to the provisions of s 6.7 of SEPP BC, the parties agree, and I am satisfied, that the final amended DA will not create adverse impacts upon aquatic ecology within the catchment.

59. Pursuant to the provisions of s 6.9 of SEPP BC, the parties agree, and I am satisfied, that the final amended DA will have no impact upon recreational land or public access to foreshores or natural water bodies within the catchment.

60. Pursuant to the provisions of s 6.10 of SEPP BC, the parties agree, and I am satisfied, that the final amended DA will have no adverse impacts upon adjacent or downstream local government areas within the catchment.

61. The parties agree, and I am satisfied, that the final amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). Consistent with s 2.1 of SEPP Sustainable Buildings and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021, a BASIX certificate, No 1778029M_03, dated 12 November 2025, has been provided with the final amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

62. The parties agree, and I am satisfied, that the final amended DA is subject to the provisions of Ch 4 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). Part 5 of SEPP Housing deals with housing for seniors and people with a disability, and pursuant to ss 79 and 81, applies to land zoned R2 Low Density Residential.

63. Section 82 of SEPP Housing defines the final amended DA as in-fill self-care housing, whereby none of the following services are provided on site - meals, cleaning services, personal care, or nursing care.

64. Section 84 of SEPP Housing sets out general development standards for the purposes of seniors living. I am satisfied that these general development standards - for site area, site frontage and maximum height of building - have all been met by the final amended DA.

65. Further, s 85 of SEPP Housing, by reference to Sch 4, sets out additional standards applicable to each independent living unit within a seniors living development. I am satisfied that the relevant standards for independent living units have been met by the final amended DA.

66. Section 88 of SEPP Housing restricts occupation of accommodation provided by the final amended DA. I am satisfied this restriction on occupation is met.

67. Section 93 of SEPP Housing requires the consent authority (the Court in this instance) to be satisfied that residents will have adequate access to facilities and services, either by a transport service or by their provision on-site. The final amended DA seeks to rely upon existing public transport services to take residents to various locations and facilities. I am satisfied this proposed transport service generally meets the requirements of s 93(2) of SEPP Housing.

68. However, the parties agree, and I am satisfied, that one of the existing public transport services, which provides connections to local facilities on Saturdays and Sundays, is situated further than 400m from the site, and therefore falls outside the parameters of s 93(2).

69. Despite this inconsistency, the parties agree and I accept, that the parameters of a transport service set out at s 93 of SEPP Housing are a mandatory consideration, but not a development standard or prohibition.

70. In any event, to mitigate against this deficiency, agreed conditions of consent are imposed, which include the following compensatory measure:

‘So as to ensure that residents of the development will have adequate access to facilities and services, the owners corporation or in the event that there is no owners corporation, the owner of the development, is at all times to ensure that an on-call transport service (including a taxi service) and which includes accessible transport, if required, is available to residents of the development. The on-call transport service is to be available on a Saturday and Sunday and is to be available to take residents to the Turramurra local centre. The service is to be available both to and from the site at least once between 8am and 12pm and at least once between 12pm and 6pm on Saturdays and Sundays. The cost of this service is to be borne by the owners corporation or in the event that there is no owners corporation, the owner of the development. A restriction as to use is to be placed on the title of the property (prior to the issue of an occupation certificate) detailing the requirement to provide this service.’

44. Section 95 of SEPP Housing requires the consent authority to be satisfied that residents will have adequate access to reticulated water and adequate facilities for the removal of sewage. The final amended DA provides for the existing potable water supply and sewerage infrastructure to be maintained. I am satisfied that the final amended DA meets the requirements of s 95(1) of SEPP Housing.

45. Section 97(1) of SEPP Housing requires the consent authority to consider the Seniors Housing Design Guide, published in December 2023, while s 97(2) requires the consent authority to be satisfied that the design of the final amended DA demonstrates adequate consideration of the design principles set out at Sch 8 of SEPP Housing. Each of these matters has been addressed in the Applicant's statement of environmental effects. I am satisfied that each of the design principles has been satisfactorily addressed.

46. Section 108 of SEPP Housing sets out further non-discretionary standards relevant to the design of independent living units. I am satisfied that, to the extent these standards are relevant, the final amended DA complies with these standards as follows:

47. The maximum building height does not exceed 9.5m.

48. The proposed floor space ratio does not exceed the maximum of 0.5:1.

49. The final amended DA meets the minimum landscaped area of 350sqm (35sqm per dwelling).

50. The final amended DA includes deep soil zones on 23.3% of the site, with 65.4% of the deep soil zone being located at the rear.

51. Compliant solar access is provided to a minimum of 70% of dwellings.

52. Compliant private open space in excess of the minimum requirements is provided.

53. Twenty car spaces are provided, exceeding the minimum requirement for seventeen spaces.

54. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the final amended DA warrants the grant of consent, subject to conditions.

55. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

56. The Court notes that:

57. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant has amended the DA with the approval of the Respondent.

58. The Applicant has lodged the final amended DA with the Court on 3 December 2025.

Orders

50. The Court orders that:

51. Leave is granted to the Applicant to amend Development Application eDA0586/24 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

52. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application as agreed or assessed.

53. The appeal is upheld.

54. Consent is granted to Development Application eDA0586/24 (as amended) for the demolition of two dwellings and other ancillary structures, and the construction of ten seniors living dwellings and associated driveways, parking, landscaping and other associated works at 91 and 93 Carrington Road, Wahroonga, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A (431 KB, pdf)

Architectural Plans_Part1 (30.8 MB, pdf)

Architectural Plans_Part2 (4.05 MB, pdf)

Architectural Plans_Part3 (31.1 MB, pdf)

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