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[2026] NSWLEC 1149
General information, not legal advice.
Land and Environment Court (NSW)
2026-03-24
Targett C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Rudder Development Pty Ltd v Ku-ring-gai Council [2026] NSWLEC 1149
Hearing dates: Conciliation Conference 16 March 2026
Date of orders: 24 March 2026
Decision date: 24 March 2026
Jurisdiction: Class 1
Before: Targett C
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development Application No eDA0444/25 seeking consent for demolition works, removal of trees, construction of a dual occupancy (attached) and associated works, and subdivision of one lot into two lots on land at Lot 59 in Deposited Plan 6494, known as 28 Gilroy Road, Turramurra, is determined by the grant of consent subject to the conditions contained in Annexure A.
Catchwords: APPEAL – residential development application – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.10, 8.14
Land and Environment Court Act 1979 (NSW), ss 17, 34, 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Ku-ring-gai Local Environmental Plan 2015, cll 1.8, 4.1, 4.3, 4.4, 6.1, 6.2, 6.5,
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6
State Environmental Planning Policy (Housing) 2021, ss 166, 167, 168, 169
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Sustainable Buildings) 2022
Texts Cited: Ku-ring-gai Community Participation Plan
Category: Principal judgment
Parties: Rudder Development Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)
Representation: Counsel:
H Kahagalle (Solicitor) (Applicant)
D Taylor (Solicitor) (Respondent)
Solicitors:
Thomson Geer (Applicant)
Finn Roache Lawyers (Respondent)
File Number(s): 2025/390191
Publication restriction: Nil
This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application No eDA0444/25 (Development Application) seeking consent for demolition works, removal of trees, and construction of a dual occupancy (attached) and associated works, and subdivision of one lot into two lots on land identified as Lot 59 in Deposited Plan 6494 and known as 28 Gilroy Road, Turramurra (Subject Land).
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).
The Development Application was lodged with the respondent on 20 August 2025.
The Development Application was publicly notified from 29 August 2025 in accordance with the Ku-ring-gai Community Participation Plan. Nine submissions were received during the notification period objecting to the proposal.
On 10 October 2025, the proceedings were commenced by the applicant, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.
The matter was listed for a conciliation conference and hearing under s 34AA(2)(a) of the LEC Act on 16 and 17 March 2026.
During the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
Amended plans and documents were provided to the Court on 16 March 2026 and (Amended Development Application) (cited at [42]). The key amendments relevantly include:
reducing the size of the rooftop terraces and re-positioning them at the front of the proposed lots;
reducing excavation to the rear of the property; and
clarifying the architectural and landscaping plans to confirm that all works are contained within the Subject Land.
The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent.
A signed s 34 agreement and supporting jurisdictional statement were filed with the Court on 16 March 2026.
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.
Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the Amended Development Application as the Subject Land is located in the “Hawkesbury-Nepean Catchment”. The following documents provide supporting information for consideration of this development under general controls for development in this catchment set out in Pt 6.2, Div 2:
Stormwater Plans by JCO Consultants dated 26 February 2026 (Stormwater Plans); and
Landscape Plans prepared by Zenith Landscape Designs dated 18 February 2026 (incorrectly noted as 18 February 2025) (Landscape Plans);
agreed conditions of consent.
Having regard to the above, the parties submit, and I accept that:
The effect on the quality of water entering a natural waterbody will be as close as possible to neutral, and the development will have negligible and satisfactory water flow impacts on a natural water body (s 6.6).
The impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development, and further, there will be no impact on aquatic reserves, natural waterbodies or wetlands (s 6.7).
The development will have no impact on periodic flooding that benefits wetlands and other riverine ecosystems and in the event of flood, will not release pollutants that will have an adverse impact on the water quality of a natural waterbody (s 6.8).
The development will not have any impact on recreation and public access (s 6.9) nor downstream local government areas (s 6.10).
The relevant requirements of Pt 6.2 of the BC SEPP are therefore satisfied in respect of the Amended Development Application.
The parties agree that Ch 6 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) relating to low and mid rise housing applies to the Amended Development Application as the Subject Land is relevantly located within the “low and mid rise inner area” for the purposes of the chapter.
Pursuant to s 166 of the Housing SEPP, dual occupancies are permitted with development consent in land zoned R2 Low Density Residential. As the Subject Land is zoned R2 Low Density Residential under the Ku-ring-gai Local Environmental Plan 2015 (KLEP), development for the purposes of a dual occupancy is permissible with consent on the Subject Land.
Pursuant to s 167(2) of the Housing SEPP, before granting development consent to a development to which this section applies, the consent authority must consider the Tree Canopy Guide for Low and Mid Rise Housing. The parties submit, and I accept, that the Tree Canopy Guide has been considered, having regard to the Landscape Plans.
Section 168 of the Housing SEPP sets out non-discretionary development standards for dual occupancies. In this regard, the parties submit, and I accept that the proposed development complies with all relevant standards including minimum lot size, minimum lot width, maximum floor space ratio and maximum height.
Section 169 of the Housing SEPP sets out non-discretionary development standards for subdivision for dual occupancies. In this regard, the parties submit, and I accept that, the proposed development complies with all relevant standards.
As set out above, the Subject Land is zoned R2 Low Density Residential under the KLEP. Although dual occupancies are an innominate prohibited use in the R2 zone under the KLEP, Ch 6 of the Housing SEPP prevails to the extent of the inconsistency. I have had regard to the zone objectives which are extracted below:
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.
For completeness, the parties submit, and I accept that, the version of the KLEP in force as at 20 August 2025 (being the date the Development Application was lodged) is the version which applies to the Amended Development Application. This is because, pursuant to cl 1.8A(1A) and (2) of the KLEP, a development application made, but not finally determined, before the commencement of the Mosman Local Environmental Plan Amendment (Exempt and Complying Development Codes and Housing – Dual Occupancies) 2025 and State Environmental Planning Policy Amendment (Ku-ring-gai Station Precincts) 2025, respectively (together, the Amendments), must be determined as if the Amendments had not been made.
The Amended Development Application does not comply with cl 4.1 of the KLEP relating to minimum lot size, however, as set out above, Ch 6 of the Housing SEPP prevails to the extent of the inconsistency and the proposal is compliant with the minimum lot size requirement in s 168(2)(a) of the Housing SEPP.
Pursuant to cl 4.3 of the KLEP relating to height of buildings, the maximum building height permissible for the Subject Land is 9.5m. The parties agree that the Amended Development Application complies with this standard (being consistent with the height standard in s 168(2)(e) of the Housing SEPP.
The Amended Development Application does not comply with cl 4.4 of the KLEP relating to FSR which prescribes a maximum FSR of 0.4:1 for the Subject Land. However, as set out above, Ch 6 of the Housing SEPP prevails to the extent of the inconsistency and the proposal is compliant with the maximum floor space ratio of 0.65:1 in s 168(2)(a) of the Housing SEPP.
Pursuant to cl 6.1 of the KLEP relating to acid sulfate soils, the Subject Land is identified as Class 5 land. As the development does not propose any works relevantly identified in cl 6.1(2) of the KLEP, an acid sulfate management plan is not required.
Pursuant to cl 6.2 of the KLEP relating to earthworks, a consent authority must consider various matters in deciding whether to grant development consent for earthworks. Having regard to Stormwater Plans and agreed conditions of consent, I confirm that I have considered the matters listed in cl 6.2(3) of the KLEP.
Pursuant to cl 6.5 of the KLEP relating to stormwater and water sensitive urban design, before granting development consent, a consent authority must be satisfied of the matters listed in cl 6.5(2). The parties agree, and I accept, that the matters listed in cl 6.5(2) of the KLEP are satisfied having regard to the Stormwater Plans and agreed conditions of consent.
The matters set out in s 4.15(1)(a) of the EPA Act are considered generally above.
In relation to s 4.15(1)(b) of the EPA Act, the likely impacts of the proposal have been considered (see SEE, pp 15-21).
In relation to s 4.15(1)(c) of the EPA Act, the suitability of the site for the proposed development has been considered (see SEE, p 21).
In relation to s 4.15(1)(d) of the EPA Act, as set out at [4], the Development Application, as lodged, was publicly notified from 29 August 2025 in accordance with the Ku-ring-gai Community Participation Plan. Nine submissions were received in response to the notification raising concerns including:
solar access impacts;
privacy impacts including from roof terraces;
excessive bulk and scale;
the proposal is out of character with the area;
building setback non compliances and lack of planting;
acoustic impacts;
use of basement;
tree removal and neighbouring tree impacts;
location of air conditioning, rainwater tanks, solar panels and pool equipment; and
lack of mechanical ventilation to basement.
In addition, the Court heard from five residents at the site view associated with the conciliation conference raising concerns largely consistent with those noted above. In respect of the resident’s concerns, I note the following:
The two large trees on the neighbouring property to the rear of the Subject Land have been considered and it is agreed by the parties’ respective landscaping experts that there will be an acceptably minimal encroachment into the root zone of those trees (ie less than 1%).
The plans include a 1.8m high picket fence to the rear of the Subject Land.
Relevant mechanical equipment will be housed in the basement and not on the rooftop terraces.
Solar access impacts to the adjoining properties to the south of the Subject Land would be similar from a KLEP compliant two storey dwelling development.
I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.
In relation to s 4.15(1)(e) of the EPA Act, the proposal is considered to be in the public interest (see SEE, p 21).
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.
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.
The Court notes that:
The respondent, as the relevant consent authority, has agreed under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the applicant amending Development Application No eDA0444/25 to incorporate the amended plans and additional plans listed below:
| TAB | DOCUMENT | DATE | | 1 | Architectural Plans prepared by Texco Design: (a) 001 Cover Page (b) 002 BASIX Commitments (Rev. D) (c) 003 Site Analysis (Rev. C) (d) 004 Survey Plan (Plan No. 9000803_A) prepared by ISA Surveyors (e) 005 Demolition Plan (Rev. C) (f) 006 Subdivision Plan (Rev. C) (g) 007 Tree Removal Plan (Rev. C) (h) 008 Tree Protection Plan (Rev. C) (i) 009 Neighbourhood Setback Analysis (Rev. C) (j) 010 Streetscape Elevation (Rev. C) (k) 011 Site Plan - Ground Floor (Rev. C) (l) 012 Site Plan - Level 1 (Rev. C) (m) 013 GFA Calculation (Rev. C) (n) 014 Landscape & Deep Soil Calculation (Rev. C) (o) 015 Sun Eye Diagram - Existing (Rev. C) (p) 016 Sun Eye Diagram - Existing (Rev. C) (q) 017 Sun Eye Diagram - Proposed (Rev. C) (r) 018 Sun Eye Diagram - Proposed (Rev. C) (s) 019 Shadow Diagram - Existing (Rev. C) (t) 020 Shadow Diagram - Existing (Rev. C) (u) 021 Shadow Diagram - Proposed (Rev. C) (v) 022 Shadow Diagram - Proposed (Rev. C) (w) 023 9.5m Height Limit Diagram (Rev. C) (x) 024 Excavation Plan (Rev. C) (y) 101 Basement Plan (Rev. C) (z) 102 Ground Floor Plan (Rev. C) (aa) 103 Level 1 Plan (Rev. C) (ab) 104 Roof Plan (Rev. C) (ac) 105 Roof Top Plan (Rev. C) (ad) 201 North & South Elevations (Rev. C) (ae) 202 West & East Elevations (Rev. C) (af) 203 Front Fence Elevation (Rev. C) (ag) 301 Section A & B (Rev. C) (ah) 302 Section C, D & E (Rev. C) (ai) 303 Section F - Sightline (Rev. C) (aj) 401 Material Schedule (Rev. C) (ak) 402 Window Schedule (Rev. D) (al) 403 Door Schedule (Rev. D) | Undated Undated 3 March 2026 18 March 2025 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 3 March 2026 Undated Undated | | 2 | Schedule of Amendments prepared by Texco Design | Undated | | 3 | Design Verification Statement prepared by Hiu Ching Chan | Undated | | 4 | Notification Plans (Rev. C) prepared by Texco Design: (a) 501 Site Plan (b) 502 Elevations | 3 March 2026 | | 5 | Landscape Plans (Rev. C) prepared by Zenith Landscape Designs: (a) 1 of 5 Landscape Set Out Plan (b) 2 of 5 Ground Floor Landscape Plan (c) 3 of 5 First Floor Landscape Plan (d) 4 of 5 Existing Tree Plan, LMR Tree Canopy and Deep Soil Plan, Landscape Area Calculation Plan (e) 5 of 5 Detail | 18 February 2026 | | 6 | Stormwater Concept Design (Rev. 3) prepared by JCO Consultants: (a) DA-SW100 Cover Sheet (b) DA-SW101 General Notes and Specifications (c) DA-SW200 Stormwater Concept Design - Basement (d) DA-SW201 Stormwater Concept Design - Ground Floor (e) DA-SW202 Stormwater Concept Design - Roof (f) DA-SW203 Stormwater Concept Design - Roof Top (g) DA-SW300 Details Sheet 1 of 2 (h) DA-SW301 Details Sheet 2 of 2 (i) DA-SW400 Stormwater Catchment Plan (j) DA-SW600 Erosion and Sediment Control Plan & Details | 25 February 2026 | | 7 | BASIX Certificate - Multi Dwelling No. 1803416M_02 prepared by Eco Certificates | 11 March 2026 | | 8 | NatHERS Certificate - Class 1 Summary No. HR-1OVMSQ-02 prepared by Eco Certificates | 10 March 2026 | | 9 | NatHERS Certificate No. HR-BHDX0B-02 (Unit 28A) prepared by Eco Certificates | 10 March 2026 | | 10 | NatHERS Certificate No. HR-3JGMCQ-02 (Unit 28B) prepared by Eco Certificates | 10 March 2026 |
The Court orders that:
The appeal is upheld.
Development Application No eDA0444/25 seeking consent for demolition works, removal of trees, construction of a dual occupancy (attached) and associated works, and subdivision of one lot into two lots on land at Lot 59 in Deposited Plan 6494, known as 28 Gilroy Road, Turramurra, is determined by the grant of consent subject to the conditions contained in Annexure A.
Annexure A (377 KB, pdf)
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Rudder Development Pty Ltd
Ku-ring-gai Council [2026] NSWLEC 1149