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[2026] NSWLEC 1107
General information, not legal advice.
Land and Environment Court (NSW)
2026-03-13
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: Salerno v Ku-ring-gai Council [2026] NSWLEC 1107
Hearing dates: Conciliation Conference 2, 3 March 2026
Date of orders: 13 March 2026
Decision date: 13 March 2026
Jurisdiction: Class 1
Before: Targett C
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted to development application DA200/25, as amended, for alterations and additions to an existing dwelling including demolition works to the existing dwelling and construction of a two storey rear addition, basement, swimming pool and associated works at 15 Braeside Street, Wahroonga (Lot A DP329505), subject to the conditions contained in Annexure A.
Catchwords: APPEAL — residential development application — conciliation conference — agreement between the parties — orders
Legislation Cited: Biodiversity Conservation Act 2016 (NSW), Pt 7, ss 6.12, 6.15, 7.13
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.10
Land and Environment Court Act 1979 (NSW), ss 17, 34, 34AA
Biodiversity Conservation Regulation 2017, cll 7.1, 7.3
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Ku-ring-gai Local Environmental Plan 2015, cll 4.3, 4.4, 5.10, 6.1, 6.2, 6.3, 6.5
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Sustainable Buildings) 2022
Texts Cited: Ku-ring-gai Development Control Plan 2024
Category: Principal judgment
Parties: Renee Salerno (Applicant)
Ku-ring-gai Council (Respondent)
Representation: Counsel:
J Cole (Solicitor) (Applicant)
A Seeton (Solicitor) (Respondent)
Solicitors:
Messenger Cole Solicitors (Applicant)
Marsdens Lawyers (Respondent)
File Number(s): 2025/365291
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 refusal of the applicant’s development application No e.DA0200/25 (Development Application) seeking consent for demolition works to the existing dwelling and construction of a two storey rear addition, basement, swimming pool and associated works on land identified as Lot A in Deposited Plan 329505 and known as 15 Braeside Street, Wahroonga (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 2 May 2025.
The Development Application was publicly notified from 19 May to 17 June 2025. No submissions were received during the notification period.
On 8 August 2025, the Development Application was determined by way of refusal.
On 23 September 2025, the proceedings were commenced by the applicant, being within the appeal period prescribed by s 8.10 of the EPA Act.
On 14 October 2025, the respondent filed its statement of facts and contentions.
The matter was listed for a conciliation conference and hearing under s 34AA(2)(a) of the LEC Act on 2 and 3 March 2026.
Prior to the conciliation conference, the parties’ experts completed joint conferencing, and the following joint reports were prepared and filed with the Court:
Joint Town Planning Report prepared by Mr Daniel Barber and Ms Shanika Kappagoda filed 10 February 2026 (Joint Planning Report);
Joint Biodiversity/Ecology Report prepared by Mr Clayton Woods and Mr John Whyte filed 18 February 2026 (Joint Biodiversity Report);
Joint Landscaping Report prepared by Mr Paul Scrivener (landscape architect), Mr Russel Kingdom (arborist) and Ms Fiona Ambrosino (landscape architect) filed 3 February 2026 (Joint Landscaping Report); and
Joint Heritage Report prepared by Mr Michael Edwards and Ms Leona Goldstein filed 3 February 2026 (Joint Heritage Report).
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 filed with the Court on 3 and 5 March 2026 (Amended Development Application) (cited at [42]). The key amendments relevantly include:
retaining Tree 27;
moving the swimming pool further west to reduce encroachment on Tree 27;
reducing the built form to the south east to reduce encroachment on Tree 27;
extending the built form on the first floor of the south western corner, including balcony; and
reducing height of the roof by 900 mm.
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 3 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.
The Subject Land is mapped on the Biodiversity Values Map published under cl 7.3 of the Biodiversity Conservation Regulation 2017 (BC Regulation).
As part of the Subject land is included in this mapping, the clearing of native vegetation on the Subject Land is declared to exceed the threshold under cl 7.1(1)(b) of the BC Regulation. Part 7 of the Biodiversity Conservation Act 2016 (NSW) (BC Act) is therefore enlivened which requires the proposal to be accompanied by a Biodiversity Development Assessment Report (BDAR).
The Amended Development Application is therefore accompanied by an amended BDAR prepared by ESEA dated 2 March 2026 (Amended BDAR). The Amended BDAR:
Was prepared by a suitably accredited person for the purposes of the BC Act who has certified that the report has been prepared on the basis of the requirements of (and information provided under) the biodiversity assessment method as of 2 March 2026 (being the date the Amended BDAR was prepared) as required by s 6.15 of the BC Act.
Sets out in Part 7 the measures that the proponent has taken to avoid or minimise, and mitigate, respectively, the impacts of the proposed development on biodiversity values as required by s 6.12(c) of the BC Act.
Concludes that one ecosystem credit is required to offset the proposed loss of vegetation.
The parties agree, and I accept, that the impacts of the proposal are acceptable. Further, Condition 6 of the Agreed Conditions requires the relevant retiring of one biodiversity credit consistent with the Amended BDAR.
Accordingly, the parties agree, and I accept that, having regard to the Amended BDAR and Agreed Conditions, the applicable provisions of the BC Act (particularly s 7.13) and the BC Regulation have been considered and satisfied.
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.
Pursuant to cl 4.3 of the KLEP relating to height of buildings, the maximum building height permissible for the Subject Land is 9.5 m. The parties agree that the Amended Development Application complies with this standard.
Pursuant to cl 4.4 of the KLEP relating to floor space ratio (FSR), a maximum FSR development standard of 0.3:1 applies to the Subject Land. The parties agree that the Amended Development Application complies with this standard.
The Subject Land is located within the Wahroonga Heritage Conservation Area (WHCA) and cl 5.10 of the KLEP relating to heritage therefore applies. Following design amendments including lowering the height of the roof of the extension and having regard to the Agreed Conditions, the parties agree, and I accept, that the Amended Development Application is capable of approval having regard to cl 5.10 of the KLEP.
Pursuant to cl 6.1 of the KLEP relating to acid sulfate soils, the Subject Land is not in proximity to land classified in classes 1-4, therefore, this provision is satisfied and 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 the SEE (p 20), Stormwater Plans prepared by TDC dated 2 February 2026 (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 6.3 of the KLEP relating to biodiversity protection, the parties agree that the Subject Land is identified as “Biodiversity” on the Terrestrial Biodiversity Map and that the consent authority must therefore consider the matters listed in in cl 6.3(2) and be satisfied of the matters listed in cl 6.3(4) before determining a development application to which the provision applies. The parties agree, and I accept, that:
The amended plans propose retention of the trees identified as significant and propose an improved outcome in terms of managed areas of Blue Gum High Forest (BGHF) species. The proposed landscaping incorporates BGHF species and significant areas that are to be managed in perpetuity pursuant to a vegetation management plan.
Whilst two BGHF species trees are to be removed, the development minimises disturbance and adverse impacts on remnant vegetation communities on the Subject Land and measures have been incorporated in the development to achieve no net loss of significant vegetation or habitat.
Having regard to the Updated BDAR, agreement of the parties and Agreed Conditions, I confirm that I have considered the matters listed in cl 6.3(2) and am satisfied of the matters listed in cl 6.3(4) 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 that include onsite stormwater detention (OSD) and the Agreed Conditions regarding stormwater discharge and the location and operation of the OSD.
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 51-52).
In relation to s 4.15(1)(c) of the EPA Act, the suitability of the Subject for the proposed development has been considered (see SEE, p 53).
In relation to s 4.15(1)(d) of the EPA Act, as set out at [4], the Development Application, as lodged, was notified from 19 May to 17 June 2025. No submissions were received in response to the notification.
The parties agree that the Amended Development Application did not require re-notification as the environmental impacts of the amendments will be the same or lesser than the original proposal.
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 53).
Conclusion
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 approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), the amendment of Development Application No. DA200/25 to include:
| Plan no. | Drawn by | Dated | | Architectural Plans | | 001, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 101, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 102, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 103, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 203, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 204, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 205, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 206, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 207, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 208, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 303, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 304, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 305, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 306, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 403, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 404, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 405, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 406, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | 407, Rev N | AG Design Projects Pty Ltd | 02/03/26 | | Landscape Plans | | 1 of 4, Issue H | Paul Scrivener Landscape | 03.03.26 | | 2 of 4, Issue H | Paul Scrivener Landscape | 03.03.26 | | 3 of 4, Issue H | Paul Scrivener Landscape | 03.03.26 | | 4 of 4, Issue H | Paul Scrivener Landscape | 03.03.26 | | Stormwater Management Plans | | C010, Rev D | TDC | 02.02.26 | | C020, Rev D | TDC | 02.02.26 | | C021, Rev D | TDC | 02.02.26 | | C030, Rev D | TDC | 02.02.26 | | C031, Rev D | TDC | 02.02.26 | | C040, Rev D | TDC | 02.02.26 | | C060, Rev D | TDC | 02.02.26 | | C061, Rev D | TDC | 02.02.26 | | C070, Rev D | TDC | 02.02.26 | | C071, Rev D | TDC | 02.02.26 | | Document(s) | Dated | | Basix certificate No. A1783505_04 | 4 March 2026 | | Structural Management Plan prepared by IHS Consulting Engineers | 18.02.2026 | | Streamlined Assessment (BDAR) – Small Area | March 2026 |
The Court orders that:
The appeal is upheld.
Development consent is granted to development application DA200/25, as amended, for alterations and additions to an existing dwelling including demolition works to the existing dwelling and construction of a two storey rear addition, basement, swimming pool and associated works at 15 Braeside Street, Wahroonga (Lot A DP329505), subject to the conditions contained in Annexure A.
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Annexure A (355 KB, pdf)
Salerno
Ku-ring-gai Council [2026] NSWLEC 1107