Ram Chhabra v Ku ring gai Council; Dalgliesh Ward & Assoc. Pty Ltd v Ku ring gai Council

Catchwords: DEVELOPMENT APPLICATION — conciliation conference — amended plans and documents —agreement between the parties — orders made
BUILDING INFORMATION CERTIFICATE — conciliation conference — agreement between the parties — orders

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.14, 4.15, 8.7, 8.10, 8.11, 8.25
Land and Environment Court Act 1979 (NSW), ss 17, 34
Environmental Planning and Assessment Regulation 2021 (NSW), s 23
Ku ring gai Local Environmental Plan 2015, cll 2.7, 4.3, 6.1, 6.3, 6.5
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure 2021), s 2.119

Texts Cited: Ku ring gai Development Control Plan 2024

Category: Principal judgment

Parties: In matter 2025/221240:
Ram Chhabra (Applicant)
Ku ring gai Council (Respondent)
In matter 2024/423339:
Dalgliesh Ward & Associates Pty Ltd (Applicant)
Ku ring gai Council (Respondent)

Representation: Counsel:
M Staunton (Applicants)
P Clarke (Solicitor) (Respondent)
Solicitors:
Uther Webster & Evans Pty Ltd (Applicants)
Hones Lawyers (Respondent)

File Number(s): 2025/221240
2024/423339

Publication restriction: No

JUDGMENT

1. COMMISSIONER: this judgment deals with the following two appeals:

2. Proceedings 2025/221240 (DA proceedings) – an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of DA eDA0592/2024 (development application) which seeks consent for the use of the carport at land identified as Lot 1 DP 347049, known as 218 Bobbin Head Road, North Turramurra (the site).

3. Proceedings 2024/423339 (BIC proceedings) – an appeal pursuant to s 8.25(1) of the EPA Act against the refusal of Building Information Certificate eBCU0017/24 (BIC Application) being an application by the applicant in the BIC Proceedings to regularise unauthorised works including a carport at the subject site.

4. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

Background

3. The site is zoned C4 Environmental Living zone under the Ku ring gai Local Environmental Plan 2015 (LEP 2015).

4. On or about November 2022 a carport was constructed at the subject site without development consent (unauthorised works).

5. On 14 February 2024, Dalgliesh Ward and Associates Pty Ltd (DWA) lodged a BIC Application on behalf of the owner of the land seeking to regularise the unauthorised works. This initial application was refused by the Respondent on 25 June 2024.

6. On 14 January 2025 the owner of the land lodged the Development application seeking the use of the unauthorised works.

7. On 14 November 2024, DWA commenced the BIC Proceedings as agent for the owner of the land, being within the time period specified in s 8.25 of the EPA Act. On 10 June 2025, the owner of the land commenced the DA Proceedings, being within the time period specified in ss 8.10 and 8.11 of the EPA Act.

8. On 1 July 2025 the parties participated in a s 34 conference in respect of the two matters, which was adjourned on multiple occasions but ultimately the matter was terminated and listed for a hearing. However, the parties continue discussions and ultimately reached an agreement in both matters.

9. The agreement reached is for:

10. the respondent to approve the Development Application; and

11. a BIC to be issued in respect of the portion of the carport agreed to be retained.

12. The parties agree that the works subject of the Amended Development Application, in conjunction with the works to be authorised by the BIC, resolve the respondent’s concerns in relation to the Unauthorised Works.

DA Proceedings

11. To make orders in accordance with the parties’ agreement in the DA Proceedings, I must be satisfied that the decision to grant development consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act).

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 for the reasons that follow.

13. Owner’s consent was given to the Applicant for the lodgement of the Development Application as required by s 23(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021).

14. The development application was notified to adjoining properties for a period of 14 days from 21 January 2025. No submissions were received.

15. The site is mapped as bushfire prone land. Pursuant to s 4.14 of the EPA Act, the consent authority cannot grant consent to development on bushfire prone land unless the consent authority is satisfied of either of two matters. Firstly, that the development conforms to the specifications and requirements of Planning for Bush Fire Protection (PFBP). Or secondly that the consent authority has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements of PFBP. The application is accompanied by such a certificate. The requirements of s 4.14 of the EPA Act are satisfied.

16. The Site is located within the Sydney Harbour Catchment in accordance with the maps in State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). The provisions of Ch 6 of SEPP BC include jurisdictional prerequisites to be satisfied that relate to the water catchment. In particular those contained in ss 6.6(2), 6.7(2), 6.8(2) and 6.9(2) relating to water quality and quantity; aquatic ecology; flooding; recreation and public access; and total catchment management. The scope of the development proposed under the development application is limited in scope, being partial demolition of an existing structure, landscaping and use of the remaining portion of the carport. The jurisdictional requirements of SEPP BC detailed above are engaged in the current development application in a limited way given the limited scope of the works. The parties agree, and I accept, that the Court can be satisfied these preconditions are met.

17. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) precludes the granting of development consent unless the consent authority has considered whether the land is contaminated. The Respondent and the Applicant agree, and I accept, that the site has a long history of residential use with no known records of contaminating activity being conducted on the site. This history is detailed in the Statement of Environmental Effects (SEE). I find that s 4.6(1) of SEPP RH is satisfied.

18. The site has frontage to Bobbin Head Road which is a classified road. The provisions of State Environmental Planning Policy Transport and Infrastructure 2021 (SEPP TI) apply. Pursuant to s 2.119 of SEPP TI the consent authority must not grant consent to development on land that has frontage to a classified road unless it is satisfied of the matters listed at cl 2.119(2), which are:

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

7. I accept the agreement of the parties and I find that the requirements of s 2.119(2) are met. The development application proposes the use of the carport structure and as such does not alter the existing impacts of traffic noise or vehicle emissions on the residential use of the site. I note that the site only has frontage to Bobbin Head Road, and vehicular access is not able to be provided from another road. The development application does not propose a new vehicular access to the site and relies on the existing cross over and driveway. The safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development application.
8. The site is zoned C4 – Environmental Living pursuant to LEP 2015. Residential dwellings (to which the use of the carport is ancillary) are permissible with consent in the zone. In determining the development application, I have given consideration to the objectives of the zone, which are:

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To ensure development does not result in further fragmentation of ecological communities, biodiversity corridors or other significant vegetation or habitat.

• To minimise direct and indirect risks to life, property and the environment from bushfire events.

• To ensure that development in this zone on land that adjoins land in Zone C1 National Parks and Nature Reserves or Zone C2 Environmental Conservation is compatible with the objectives of those zones.

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

9. The proposal also involves demolition of a portion of the existing carport structure on the Site. Development for the purposes of demolition is permissible with consent pursuant to cl 2.7 of LEP 2015.
10. The development application is compliant with the development standards for Maximum Building Height at cl 4.3 of LEP 2015.
11. Clause 6.1 (Acid Sulfate Soils) provides that development consent is required for the carrying out of works described in the Table at cl 6.1(2) on land shown on the Acid Sulfate Soils Map as being of the class specified for those works. The Site is identified as containing Class 5 acid sulfate soils. However, the proposed development is not located within 500m of class 1, 2, 3 or 4 land and is not likely to lower the water table below 1m Australian Height Datum. Therefore, I accept the agreement of the parties that an acid sulfate soils management plan is not required. The proposed development complies with cl 6.1 of LEP 2015.
12. The site is identified as “Biodiversity” on the Terrestrial Biodiversity Map under LEP 2015. The development application is for demolition, use of the carport and landscaping. I accept the agreement of the parties that the development minimises impacts on the diversity and condition of native vegetation, fauna and habitat and meets the requirements of cl 6.3 in LEP 2015.
13. Clause 6.5 (Stormwater and water sensitive urban design) in LEP 2015 requires the consent authority to be satisfied of the matters identified in cl 6.5(2). Stormwater drainage from the carport connects to the existing stormwater drainage system, satisfying the requirements of this clause.
14. Ku ring gai Development Control Plan 2024 (DCP 2024) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2024. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

BIC Proceedings

13. To make orders in accordance with the parties’ agreement in the BIC Proceedings, I must be satisfied that the decision to make orders directing the respondent to issue a BIC in the terms proposed by the parties is a decision that the Court can make in the proper exercise of its functions. 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.

14. On hearing an appeal in connection with a BIC under s 8.25(1) of the EPA Act, pursuant to s 8.25(3), 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. The parties have agreed that the Court should direct the Council to issue a BIC for that portion of the carport to be retained. I am satisfied that the respondent should be directed to issue a BIC in the terms proposed by the parties on the basis that:

16. The applicant is the registered proprietor of the Subject Land upon which the works the subject of the BIC Application were carried out and provided consent to the BIC Application when it was lodged with the respondent.

17. The works the subject of the BIC comprise works to, or ancillary to, a dwelling house. Dwelling houses are permissible with consent in the C4 – Environmental Living zone.

18. I accept the parties’ submission that there is no impediment to the Court directing the respondent to issue the BIC on the terms proposed.

19. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to, “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

20. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Conclusion

19. The Court notes that the Respondent as consent authority has approved pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), the applicant amending development application no. eDA0592/24 for use of an existing carport at 218 Bobbin Head Road, North Turramurra as follows:

(a) to carry out landscaping in accordance with the BIC landscape plans numbered H301_LP_03 to H301_LP_05 all revision A prepared by Creative Planning Solutions and all dated 20 June 2025; (b) to demolish the front portion of the carport notated as being “existing portion of carport to be demolished” on BIC landscape plan no. H301_LP_03 Revision A prepared by Creative Planning Solutions dated 20 June 2025; (c) to use the rear portion of the carport notated as being “existing portion or carport to be retained” on BIC landscape plan no. H301_LP_03 Revision A prepared by Creative Planning Solutions dated 20 June 2025

Orders

In matter 2025/221240:

20. The Court orders that:

(1) The appeal is upheld.

(2) Development application No eDA0592/24 as amended for demolition of a portion of the existing carport, landscaping and use of the remaining portion of the existing carport at 218 Bobbin Head Road, North Turramurra is determined by the grant of consent subject to the conditions in Annexure A.

In matter 2024/423339:

21. The Court orders that:

(1) The appeal is upheld.

(2) The respondent is directed pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979 (NSW) to issue a Building Information Certificate in respect of the portion of the carport nominated as being “extension portion of carport to be retained” on BIC landscape plan no. H301_LP_03 Revision A prepared by Creative Planning Solutions dated 20 June 2025 within 14 days of these orders.

C Dickson

Commissioner of the Court

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Annexure A.133 KB.pdf