Panoyan v Ku-ring-gai Council

Catchwords: APPEAL – building information certificate – dwelling house development in R2 Low Density Residential zone – development control order – conciliation conference – agreement between parties – orders

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 8.7, 8.25
Land and Environment Court Act 1979 (NSW), ss 34AA, 34
Environmental Planning and Assessment Regulation 2021, s 38
Ku-ring-gai Local Environmental Plan 2015, cl 4.3(2)
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Housing) 2021, s 166
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Cases Cited: Panoyan v Ku-ring-gai Council [2025] NSWLEC 1093.

Texts Cited: Tree Canopy Guide for Low and Mid Rise Housing, published by the Department in February 2025
Low Rise Housing Diversity Design Guide July 2020

Category: Principal judgment

Parties: Antranik Panoyan (First Applicant)
Anne Panoyan (Second Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
M Jaku (Solicitor) (Applicant)
J Walker (Solicitor) (Respondent)
Solicitors:
Jaku Legal (Applicant)
Maddocks (Respondent)

File Number(s): 2025/129611
2025/129582

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This appeal concerns two dwellings occupying a parcel of land with a frontage to both Barana Parade and to Griffith Avenue, Roseville Chase. The larger dwelling fronting Barana Parade is located on a portion of the site that is elevated above that portion of the site fronting Griffith Avenue to the north, on which a smaller dwelling was constructed more recently, being the subject of consent granted by Ku-ring-gai Council in October 2016 (2016 Consent), that also included alterations and additions to the existing dwelling fronting Barana Parade. At the time, the dwelling fronting Griffith Avenue was characterised as a secondary dwelling.

2. The 2016 Consent was subsequently modified in February 2019. However, a further modification application, MOD0183/19 seeking consent for alterations to the secondary dwelling was refused by the Council on 7 May 2020.

3. It is commonly held that unauthorised works were carried out in the construction of the secondary dwelling. Between September 2018 and October 2023 five Development Control Orders (DCOs) were issued by the Council that are not relevant to these proceedings beyond the fact that the DCO issued 16 October 2023 was later modified by the Court in its decision Panoyan v Ku-ring-gai Council [2025] NSWLEC 1093, and so is the DCO relevant to these proceedings (the Relevant DCO).

4. On 11 November 2024, the Applicants in this matters, Mr Anitrak Panoyan and Ms Anne Panoyan (together the Panoyan’s), lodged a Building Information Certificate EBCU0129/24 (the BIC) seeking to regularise the unauthorised works to the secondary dwelling that are the subject of the Relevant DCO.

5. On 15 November 2024, the Panoyan’s also lodged development application No eDA0485/24 seeking consent for change of use of the existing dwellings from a dwelling and secondary dwelling, to a dual occupancy (detached) development, including alterations and additions (the DA).

6. On 23 December 2024, the Council refused the BIC.

7. On 17 March 2025, the Ku-ring-gai Local Planning Panel determined to refuse the DA on behalf of the Council.

8. On 4 April 2025, the Panoyan’s filed an appeal against the refusal of the BIC under s 8.25 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) (the BIC appeal) (proceedings 2025/129582), and against the refusal of the DA pursuant to s 8.7 of the EPA Act (the DA appeal) (proceedings 2025/129611).

9. The Court arranged a conciliation conference between the parties on 28 October 2025, pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act), in respect of the DA Appeal, and s 34 of the LEC Act in respect of the BIC Appeal.

10. I presided at the conciliation conference, at which agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the both the BIC Appeal and DA Appeal that was acceptable to the parties.

11. In respect of the BIC Appeal, the decision agreed upon is for certain works to be carried out by the Panoyans, upon completion of which the Council is directed to issue a building information certificate.

12. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions, being the proper test applied by s 34(3) of the LEC Act.

13. I form this state of satisfaction as the decision reached between the parties in respect of the BIC Appeal falls within the broad power of the Court set out in s 8.25(3) of the EPA Act to “direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit” (at subs (a)), and “make any other order that it considers appropriate” (at subs (c)).

14. Section 8.25(3) relevantly provides:

8.25 Appeals with respect to building information certificates

…

(1) An applicant—

(a) who is dissatisfied with a council’s refusal to issue a building information certificate under Part 6, or

(b) who is dissatisfied with a council’s failure to issue a building information certificate within the period prescribed by the regulations, or

(c) who is dissatisfied with a notice from the council to supply information in connection with an application for a building information certificate,

may appeal to the Court.

(2) The appeal may be made only within 6 months after the date on which the person is given notice of the decision appealed against or the end of the deemed refusal period referred to in subsection (1).

(3) On hearing the appeal, the Court may do any one or more of the following—

(a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,

(b) revoke, alter or confirm a notice to supply information,

(c) make any other order that it considers appropriate.

15. In respect of the DA Appeal, the decision is for the grant of development consent subject to amended plans that were prepared on behalf of the Panoyan’s, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

16. For completeness, the DA seeks consent for the following:

17. Change of use of the secondary dwelling fronting Griffith Avenue from a secondary dwelling to one half of a dual occupancy (detached), and alterations and additions to that dwelling comprising:

(a) New garage and storage area at lower ground level (b) Provision of on-site detention of stormwater within the subfloor area at the rear of the garage (c) New window to existing plant room (d) Revised subfloor area (e) New bedroom to the rear of the ground floor with new side window and side door providing access to private open space to the rear (f) Privacy screen to the western side of an external terrace (g) Removal of side concrete awning (h) Amended landscape design and private open space to the rear (i) New laundry and existing bathroom at ground floor level (j) New stair to first floor level (k) New bedroom, front balcony (with privacy screen) and ensuite on the first floor level.

2. In respect of the primary dwelling fronting Barana Parade, the DA seeks consent for change of use to constitute the other half of a dual occupancy (detached), and alterations and additions comprising:

(a) Demolition of the lower ground floor storage area, below the terrace at the rear of the dwelling and fill with soil. (b) Demolition of planter box structures at the top of the rockface and to the rear of the dwelling. (c) Demolition of parts of the existing driveway alongside the dwelling (d) Partial demolition of the front lounge room and associated side windows and front columns. (e) Conversion of the front lounge room to a garage. (f) External changes to existing driveway, removal of water feature, new landscaping and stormwater drainage.

17. 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [39].

Jurisdictional preconditions to the grant of development consent

18. In considering those matters that are of relevance to the DA Appeal, I have taken the following into consideration and formed the requisite opinion of satisfaction where required by the relevant environmental planning instrument.

19. The site is located within an area identified by the Ku-ring-gai Local Environmental Plan 2015 (KLEP) as R2 Low Density Residential, in which development for the purposes of dual occupancy dwellings is not permitted, except by operation of s 166 of the State Environmental Planning Policy (Housing) 2021. The objectives for development in the R2 zone are as follows:

• 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.

20. The maximum height of buildings standard shown on the relevant map at cl 4.3(2) of the KLEP is 9.5m, with which the proposed development complies.

21. As the DA seeks consent for dual occupancy (detached) development by reliance upon s 166 of the Housing SEPP, such development is permitted on the land and the proposal does not exceed the maximum floor space ratio permitted by cl 4.4(2B) of 0.4:1.

22. The site is identified on the relevant Acid Sulfate Soils Map at cl 6.1(2) of the KLEP within an area designated Class 5, however no part of the land is below 5m AHD.

23. A Geotechnical Assessment prepared by Mr Tony Crozier of Crozier Geotechnical Consultants dated 4 August 2025 encloses an earlier assessment prepared by him in August 2015 that satisfies me that earthworks undertaken in relation to the 2016 Consent were the subject of geotechnical assessment at the time. A further Geotechnical Assessment prepared by Crozier Geotechnical Consultants dated 5 September 2025 (September Assessment) assesses the excavation now proposed by the development, including a portion of sandstone of around 600mm in depth that is proposed to be removed to provide for private open space to the rear of the secondary dwelling, the geology evident on the site and fill material likely to be required. Consideration is also given to the likelihood of disturbing relics, the proximity to, and potential for adverse impact on, waterways and recommendations are made as to controlling potential instability and other impacts on adjoining properties. I have considered the matters to be considered at cl 6.2 of the KLEP and I accept the conclusions set out on p 9 of the September Assessment and regard the earthworks proposed by the development to be acceptable.

24. The Amended Stormwater Plans prepared by Quantum Engineers depicts stormwater drainage in the vicinity of the Primary dwelling, at the higher elevation, being collected firstly in a 2,000L rainwater tank onsite detention (OSD) fitted with a first flush diverter, before being directed to the western side of the southern portion of the lot and connecting to Council’s network in Griffith Avenue via an existing pit to be fitted with a filter.

25. Stormwater in the vicinity of the secondary dwelling is proposed to be directed to an onsite detention tank (OSD) located to the rear of the garage on the lower ground floor. The OSD is proposed to be fitted with filtration cartridges with the resultant MUSIC modelling indicating an improvement in water quality.

26. Additionally, rainwater is directed to an existing 5,000 L rainwater tank located within a subfloor area of the lower ground floor, identified for reuse in toilet, laundry and garden irrigation.

27. Landscape Plans prepared by Conzept states the landscape area on the site to be 418m2 or 40% of the site.

28. On this basis, I am satisfied 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.

29. Relatedly, on the basis of the same amended stormwater plans prepared by Quantum, the parties agree that that water conservation is achieved by use of a two rainwater tanks and OSD. Given the use of first flush devices and filtration proposed to stormwater pits located between the site’s stormwater drainage and Council’s network, 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 State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP).

30. 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.

31. I note that the site is not identified as flood liable land to which s 6.8 of the Biodiversity 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 (Resilience and Hazards) 2021

32. I have considered whether the site is contaminated pursuant to cl 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021*.* On the basis of the historical chronology of the site set out in the September Assessment cited at [23], I am satisfied that the site is suitable for the development.

State Environmental Planning Policy (Sustainable Buildings) 2022

33. The application is accompanied by BASIX certificates (Cert No 1818198M_02 and A1818123_02 dated 22 October 2025) prepared by Chapman Environmental Services Pty Ltd in accordance with the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

34. On the basis of the BASIX certificates, 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.

Conclusion

35. 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.

36. 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.

37. The Court notes that the effect of the approval of Building Information Certificate Application No eBCU0129/24 (Proceedings No 2025/129582) and Development Application No eDA0485/24 (PAN-484928) (Proceedings No 2025/129611) is that Modified Development Control Order No EPA0130/23 issued by the Court on 20 February 2025 in Proceedings No 2023/347008 will not take effect.

38. The Court also notes that, in respect of proceedings 2025/129611:

39. Ku-ring-gai Council, as the relevant consent authority for the purposes of s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), approves the Applicant amending Development Application No eDA0485/24 in accordance with the following plans and documents:

Architectural Plans prepared by Casafabrica:

| Drawing No. | Drawing Name | Date | | DA01, Issue U | BUA | 29.10.2025 | | DA01A, Issue U | GFA | 29.10.2025 | | DA01B, Issue U | GFA | 29.10.2025 | | DA01C, Issue U | GFA | 29.10.2025 | | DA01D, Issue U | Demolition Plan | 29.10.2025 | | DA02, Issue U | Basement Layout Griffith Avenue | 29.10.2025 | | DA03, Issue U | Ground Floor Layout Griffith Avenue | 29.10.2025 | | DA04, Issue U | First Floor Layout Griffith Avenue | 29.10.2025 | | DA05, Issue U | Roof Layout Griffith Avenue | 29.10.2025 | | DA06, Issue U | Existing & Proposed Lower Ground Floor Level Plan Barana Parade | 29.10.2025 | | DA06A, Issue U | Existing And Proposed Ground Floor Plan Barana Parade | 29.10.2025 | | DA06B, Issue U | First Floor Plan Barana Parade | 29.10.2025 | | DA07, Issue U | Existing House North And East Elevations Barana Parade | 29.10.2025 | | DA07A, Issue U | Existing House South And West Elevation Barana Parade | 29.10.2025 | | DA07B, Issue U | Proposed West Elevation Barana Parade | 29.10.2025 | | DA07C, Issue U | 12 Barana Parade Demolition Plan | 29.10.2025 | | DA08, Issue U | East Elevation Griffith Avenue | 29.10.2025 | | DA09, Issue U | North Elevation Griffith Avenue | 29.10.2025 | | DA10, Issue U | South Elevation Griffith Avenue | 29.10.2025 | | DA11, Issue U | West Elevation Griffith Avenue | 29.10.2025 | | DA12, Issue U | Section AA Griffith Avenue | 29.10.2025 | | DA13, Issue U | Section CC Griffith Avenue | 29.10.2025 | | DA14, Issue U | Section BB Griffith Avenue | 29.10.2025 | | DA16, Issue U | Material Schedule Griffith Avenue | 29.10.2025 |

(a) BASIX Certificate No 1818198M_02 and A1818123_02 prepared by Chapman Environmental Services Pty Ltd dated 22 October 2025. (b) Nationwide House Energy Rating Scheme Certificate No 0012311247. (c) The Applicants filed the amended development application with the Court.

Orders

39. The Court orders that:

In respect of proceedings 2025/129582:

1. The appeal is upheld.
2. The Applicants are directed to do the following identified in Annexure A within 7 days of the Court’s Orders:

(a) The broken tile at the front stairs is to be repaired. (b) The bedroom front glass sliding door (SD2) is to be blocked to prevent access to the unprotected front balcony. (c) The rear glass door (D4) at the gallery is to be blocked or a barrier installed to prevent access to the unprotected drop on the ground level at the rear yard. (d) A balustrade/barrier is to be installed to prevent access to the unprotected drop on the ground level at the rear yard from the side passageway, either at location 1 or 2 marked on the plan.

3. Within 7 days from the date the Respondent receives notice that the matters identified in Order 2 have been completed:

(a) The Respondent is to carry out an inspection of those works, or alternatively if the Respondent considers that a site inspection is not required in the circumstances, it may be satisfied by photographic evidence or certification provided by the Applicants. (b) If the Respondent is not satisfied in relation to those works, the Respondent is to provide reasons that are sufficiently detailed to inform the Applicants of what needs to be done to enable the Respondent to be satisfied. (c) If the Respondent is satisfied in relation to those works, then pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Respondent is directed to issue a building information certificate in respect of Building Information Certificate Application number eBCU0129/24, for the dwelling fronting Griffith Avenue, Lot 10 in Deposited Plan 14083, identified in the plans at Annexure B.

In respect of proceedings 2025/129611:

4. The appeal is upheld.
5. Development consent is granted to Development Application No eDA0485/24 (PAN-484928), for the change of use of existing buildings for the purposes of a dual occupancy (detached) development, including alterations and additions at 12 Barana Parade, Roseville Chase (Lot 10 in Deposited Plan 14083), subject to the conditions of consent in Annexure C.

T Horton

Commissioner of the Court

Annexure A (166 KB, pdf)

Annexure B (679 KB, pdf)

Annexure C (358 KB, pdf)

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