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Siddiqui v Ku-ring-gai Council [2025] NSWLEC 1739 | Case summary | Zoe

NSWNSWLEC

Siddiqui v Ku-ring-gai Council

[2025] NSWLEC 1739

Land and Environment Court (NSW)|2025-10-14|Before: O’Neill C

View on NSW CaselawOr email me a plain-English summary of this case

General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2025-10-14

Before

O’Neill C

Catchwords

DEVELOPMENT APPLICATION – attached dual occupancy development –
conciliation conference – agreement between the
parties –
orders

Source

Original judgment source is linked above.

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Catchwords

DEVELOPMENT APPLICATION – attached dual occupancy development –conciliation conference – agreement between theparties –orders

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Siddiqui v Ku-ring-gai Council [2025] NSWLEC 1739

Hearing dates: Conciliation conference on 2 October 2025

Date of orders: 14 October 2025

Decision date: 14 October 2025

Jurisdiction: Class 1

Before: O’Neill C

Decision: The orders of the Court are:
(1) The appeal is upheld.
(2) Development Application No eDA0115/25, as amended, for alterations and additions to an existing building to create an attached dual occupancy development at 24 Larchmont Avenue, East Killara, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords: DEVELOPMENT APPLICATION – attached dual occupancy development – conciliation conference – agreement between the parties – orders

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7
Land and Environment Court Act 1979 (NSW), ss 34, 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Ku-ring-gai Local Environmental Plan 2015, cll 4.3, 4.4, 4.6
State Environmental Planning Policy (Biodiversity and Conservation) 2021, 6.6
State Environmental Planning Policy (Housing) 2021, ss 164, 166, Ch 6 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction.
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]:
the objectives of the development standard are achieved notwithstanding non-compliance with the standard;
the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;
the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;
the development standard has been abandoned by the council;
the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).
The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).
The applicant’s written request justifies the contravention of the FSR development standard on the bases that compliance is unreasonable or unnecessary because the exceedance is de minimis, and therefore imperceptible in terms of the proportion of the bulk and scale of the building envelope on the site.
The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).
I am satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). I am satisfied that justifying the aspect of the development that contravenes the development standard as de minimis and therefore imperceptible in terms of the proportion of the bulk of the building envelope on the site can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].