Sukari v Ku-Ring-Gai Council

Parties: Lauren Sukari (Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
C Shaw (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s): 2024/302328

Publication restriction: No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No 0193/24 (DA) for the demolition of existing structures and construction of a dwelling house, cabana, tennis court and associated works at 27 Kintore Street, Wahroonga.

2. The subject site is legally described as Lot B in DP 355372.

3. The site currently contains a two-storey brick house with a tiled roof, located towards the southern boundary of the lot. The site also contains outbuildings including a brick garage, a gazebo and a small brick shed, along with an inground swimming pool, all of which are proposed to be demolished as part of the new development.

4. The rear of the site adjoins the Wahroonga Conservation Area (Heritage Conservation Area C1) and the site is near a local heritage item, the dwelling house “Fairacre” at No 10 Wahroonga Avenue, (item I990), identified on schedule 5 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP).

5. The DA was lodged on 5 June 2024, and notified in accordance with the Ku-ring-gai Community Participation Plan, in response to which three public submissions were received, objecting to the proposal on grounds including privacy, extent of tree removal, scale and lack of articulation of development, and overshadowing.

6. The Applicant in these proceedings filed an appeal in Class 1 of the Court’s jurisdiction on 16 August 2024.

7. The Court arranged a conciliation conference between the parties, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act), which was held on 24 February 2025. I presided over the conciliation conference, commencing with an onsite view, at which the Court, in the company of legal representatives, the applicants and experts, heard oral submissions from residents. Following the conciliation conference, on the basis of amended plans and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

8. A signed agreement was submitted to the Court on 25 February 2025, in accordance with s 34(10) of the LEC Act.

9. Generally, the agreement approves the development subject to amended plans and supporting documents that were prepared by the Applicant, along with the agreed conditions of consent annexed to the s 34 agreement.

10. 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.

11. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the Development Application.

12. I formed an opinion of satisfaction, based on the evidence and the submissions of the parties, that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

Jurisdictional matters

Owner’s consent

13. The Development Application was made with the consent of the owner of the site in compliance with s 23(1)(a) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

Planning Framework

Ku-ring-gai Local Environmental Plan 2015

14. The KLEP applies to the Site, which is within the Ku-ring-gai Local Government Area (KLEP clause 1.3).

15. The site is located within the R2 Low Density Residential zone, pursuant to KLEP. ‘Dwelling houses’ are permissible with consent in the R2 Low Density Residential zone. The proposal is consistent with the relevant objectives of the zone, which are:

16. To provide for the housing needs of the community within a low density residential environment.

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

18. To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

19. The proposal is within the height standard at cl 4.3 of KLEP. The maximum building height is 9.5 m; the proposed development has a maximum height of 9.2 m (indicated on architectural plan Q13, ARCM Design, dated 17 February 2025).

20. The proposal is within the floor space ratio (FSR) at cl 4.4 of KLEP. The site has a maximum FSR of 0.3:1, permitting a total floor area of 606.90 m2. The proposed development has an FSR of 0.279:1 with a total floor area of 564.24 m2 (indicated on architectural plan Q4, ARCM Design, dated 17 February 2025).

21. The parties agree and I am satisfied that due consideration has been given to the effect of the development on the heritage significance of the area concerned, in accordance with cl 5.10 (Heritage Conservation) on the basis of the Statement of Heritage Impact (Weir Phillips, February 2025).

22. The site is identified as being in an area of Class 5 Acid Sulfate Soils (ASS) on the relevant map at cl 6.1 of KLEP. I accept the advice of the parties, supported by the addendum to the Statement of Environmental Effects (Minto Planning Services; 18 February 2025), that, as the proposed works are not located within 500m of Class 1-4 land, and not likely to lower the water table below 1m, an Acid Sulfate Soils management plan is not required.

23. I consider that the impact of the proposed earthworks, to be considered at cl 6.2 of KLEP, have been considered in the Geotechnical Investigation Report (Geotechnical Consultants Australia Pty Ltd), in the amended stormwater plans (Hydracor Consulting Engineers Pty Ltd; 20 February 2025), in the amended Flood Investigation Report (Hydracor Consulting Engineers Pty Ltd; 20 February 2025), and in the amended architectural plans (ARCM Design; 17 February 2025), and are adequately addressed in the agreed conditions of consent, and are unlikely to have a detrimental impact on environmental functions and processes, including existing drainage patterns or soil stability.

24. Cl 6.3 (Biodiversity protection) of KLEP applies to the site as a portion of the site is identified on the Terrestrial Biodiversity Map. I am satisfied that the documentation that accompanies the amended DA, including the amended architectural plans (ARCM Design; 17 February 2025), amended landscape plans (Eco Design; 18 February 2025), tree root mapping report (GBG Group; 2 September 2024), amended Arboricultural Impact Assessment (Advanced Treescape Consulting; 19 February 2025) and the amended flora and fauna assessment (Kingfisher Urban Ecology; February 2025 version 4), along with the agreed conditions of consent, adequately address the matters to be considered at cl 6.3 of KLEP in regards to the avoidance of adverse environmental impacts.

25. Cl 6.5 (Stormwater and water sensitive urban design) of KLEP applies to the site. On the basis of the amended flood investigation report (Hydracor Consulting Engineers Pty Ltd; 20 February 2025) and the amended stormwater plans (Hydracor Consulting Engineers Pty Ltd; 20 February 2025), I consider that the proposed development has been designed to minimise and mitigate adverse impacts of stormwater runoff on adjoining properties and that the development has been designed in accordance with typical stormwater measures.

State Environmental Planning Policy (Resilience and Hazards) 2021

23. On the basis that the site has been used for residential purposes for a substantial period of time, with no known records of contaminating activity being conducted on the site, I accept that the site is unlikely to be contaminated and is suitable for the purpose for which development is proposed to be carried out, pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

State Environmental Planning Policy (Sustainable Buildings) 2022

24. The application is accompanied by a BASIX certificate (certificate number 1743263S_06, dated 19 February 2025, prepared by Paul&David Consulting Pty Ltd), in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

25. On the basis that an embodied energy report forms part of the BASIX certificate, the Court can be satisfied that the embodied emissions attributable to the development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Biodiversity Conservation Act 2016

26. The parties agree, and I am satisfied that the proposed development has been assessed against s 7.3 of the Biodiversity Conservation Act 2016 (BC Act), and is not likely to significantly affect threatened species or ecological communities or their habitats.

27. The parties agree, and I am satisfied that the proposal as amended does not trigger the provisions of s 7.7(2) of the BC Act to prepare a biodiversity development assessment report (BDAR) on the basis that the proposed development is not considered likely to impact threatened species or ecological communities or their habitats as set out in s 7.3, and that the proposed development does not exceed the biodiversity offsets scheme threshold and is not within a declared area of outstanding biodiversity value.

28. The parties agree, and I am satisfied, on the basis of the amended Flora and Fauna Assessment (Kingfisher Urban Ecology; February 2025), the amended Arboricultural Impact Assessment (Advanced Treescape Consulting: 19 February 2025), the Tree Root Mapping Report (GBG Group; 2 September 2024) along with the amended architectural and landscape plans, that the applicable provisions of the BC Act have been satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

29. Pursuant to Chapter 2 (Vegetation in non rural areas) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), the parties agree and I am satisfied that the amended DA will not result in the clearing of any vegetation except that authorised by the consent, and that the trees on site have been assessed in accordance with the aims of Chapter 2, based on the amended Arboricultural Impact Assessment (Advanced Treescape Consulting; 19 February 2025), the amended Flora and Fauna Assessment (Kingfisher Urban Ecology; February 2025) and the amended Landscape Plans (Eco Design; 18 February 2025).

Conclusion

30. I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

31. I am required under s 34 (3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.

32. 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.

33. The Court notes that:

34. The Respondent, Ku-ring-gai Council, as the relevant consent authority, approves pursuant to section 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application eDA0193/24 in accordance with the documents listed below:

| Amended Architectural Plans | | Plan name | Drawing ref | Revision | Date | Prepared by | | Roof/Site Analysis Plan | Q4 | Revision Q | 17/02/2025 | ARCM Design | | Roof/Site Analysis Plan | Q5 | Revision Q | 17/02/2025 | ARCM Design | | Roof/Site Analysis Plan | Q6 | Revision Q | 17/02/2025 | ARCM Design | | Basement Floor Plan | Q7 | Revision Q | 17/02/2025 | ARCM Design | | Basement Floor Plan | Q8 | Revision Q | 17/02/2025 | ARCM Design | | Ground Floor Plan | Q9 | Revision Q | 17/02/2025 | ARCM Design | | Ground Floor Plan | Q10 | Revision Q | 17/02/2025 | ARCM Design | | First Floor Plan | Q11 | Revision Q | 17/02/2025 | ARCM Design | | First Floor Plan | Q12 | Revision Q | 17/02/2025 | ARCM Design | | North & South Elevations | Q13 | Revision Q | 17/02/2025 | ARCM Design | | East Elevations | Q14 | Revision Q | 17/02/2025 | ARCM Design | | West Elevations – North Fence Detail | Q15 | Revision Q | 17/02/2025 | ARCM Design | | North Streetscape and 3D perspectives | Q16 | Revision Q | 17/02/2025 | ARCM Design | | Sections – Tree Root Details C | Q17 | Revision Q | 17/02/2025 | ARCM Design | | BUA calculations | Q18 | Revision Q | 17/02/2025 | ARCM Design | | BUA calculations | Q19 | Revision Q | 17/02/2025 | ARCM Design | | GFA calculations – Basement and Ground floor | Q20 | Revision Q | 17/02/2025 | ARCM Design | | GFA calculations – first floor | Q21 | Revision Q | 17/02/2025 | ARCM Design | | Turntable specifications | Q22 | Revision Q | 17/02/2025 | ARCM Design | | Turntable specifications | Q23 | Revision Q | 17/02/2025 | ARCM Design | | Shadows | Q24 | Revision Q | 17/02/2025 | ARCM Design | | Shadows | Q25 | Revision Q | 17/02/2025 | ARCM Design | | Shadows | Q26 | Revision Q | 17/02/2025 | ARCM Design | | Shadows | Q27 | Revision Q | 17/02/2025 | ARCM Design | | Shadows | Q28 | Revision Q | 17/02/2025 | ARCM Design | | Shadows | Q29 | Revision Q | 17/02/2025 | ARCM Design | | Shadows | Q30 | Revision Q | 17/02/2025 | ARCM Design | | Shadows | Q31 | Revision Q | 17/02/2025 | ARCM Design | | Shadows | Q32 | Revision Q | 17/02/2025 | ARCM Design | | Shadows | Q33 | Revision Q | 17/02/2025 | ARCM Design | | Shadows | Q34 | Revision Q | 17/02/2025 | ARCM Design | | Shadows | Q35 | Revision Q | 17/02/2025 | ARCM Design | | Shadows | Q36 | Revision Q | 17/02/2025 | ARCM Design | | Shadows | Q37 | Revision Q | 17/02/2025 | ARCM Design | | Shadows | Q38 | Revision Q | 17/02/2025 | ARCM Design | | Shadows | Q39 | Revision Q | 17/02/2025 | ARCM Design | | Views from the sun | Q40 | Revision Q | 17/02/2025 | ARCM Design | | Views from the sun | Q41 | Revision Q | 17/02/2025 | ARCM Design | | Views from the sun | Q42 | Revision Q | 17/02/2025 | ARCM Design | | Views from the sun | Q43 | Revision Q | 17/02/2025 | ARCM Design | | Views from the sun | Q44 | Revision Q | 17/02/2025 | ARCM Design | | Views from the sun | Q45 | Revision Q | 17/02/2025 | ARCM Design | | Views from the sun | Q46 | Revision Q | 17/02/2025 | ARCM Design | | Views from the sun | Q47 | Revision Q | 17/02/2025 | ARCM Design | | Schedule of materials & finishes | Q48 | Revision Q | 17/02/2025 | ARCM Design | | Amended Landscaping Plans | | Plan name | Drawing Ref | Revision | Date | Prepared by | | Landscape Plan | L-01 | Revision G | 18/02/2025 | Eco Design | | Sections & Elevations | L-02 | Revision G | 18/02/2025 | Eco Design | | Amended Stormwater Plans | | Plan name | Drawing ref | Revision | Date | Prepared by | | Coversheet & Notes | C1 | O | 20/02/2025 | Hydracor Consulting Engineers | | Stormwater Management Plan- Ground Floor No. 1 | C2 | O | 20/02/2025 | Hydracor Consulting Engineers | | Stormwater Management Plan- Ground Floor No. 2 | C3 | O | 20/02/2025 | Hydracor Consulting Engineers | | Stormwater Management Plan- Basement | C4 | O | 20/02/2025 | Hydracor Consulting Engineers | | Stormwater Management Details Sheet No.1 | C5 | O | 20/02/2025 | Hydracor Consulting Engineers | | Stormwater Management Details Sheet No. 2 | C6 | O | 20/02/2025 | Hydracor Consulting Engineers | | Stormwater Management Details Sheet No. 3 | C7 | O | 20/02/2025 | Hydracor Consulting Engineers | | Erosion & Sediment Control Plan | C8 | O | 20/02/2025 | Hydracor Consulting Engineers | | Erosion & Sediment Control Notes & Details | C9 | O | 20/02/2025 | Hydracor Consulting Engineers | | Flood Mitigation Plan- Ground Floor No. 1 | C10 | O | 20/02/2025 | Hydracor Consulting Engineers | | Flood Mitigation Plan- Ground Floor No. 2 | C11 | O | 20/02/2025 | Hydracor Consulting Engineers | | Bulk Earthworks and Vehicle Swept Path Plans | | Plan name | Drawing Ref | Revision | Date | Prepared by | | Coversheet & Notes | D1 | E | 20/02/2025 | Hydracor Consulting Engineers | | Swept Path Plan | D2 | E | 20/02/2025 | Hydracor Consulting Engineers | | Driveway Long Section | D3 | E | 20/02/2025 | Hydracor Consulting Engineers | | Bulk Earthworks Plan | D4 | E | 20/02/2025 | Hydracor Consulting Engineers | | Amended Reports | | Report name | Ref | Revision | Date | Prepared by | | Amended Flood Investigation Report | C230222_FS | Version 6 | 20/02/2025 | Hydracor Consulting Engineers | | Statement of Heritage Impact | C537 | - | February 2025 | Weir Phillips Heritage | | Addendum to Statement of Environmental Effects | 211/2023 | - | 18/02/2025 | Minto Planning Services | | Amended Arboricultural Impact Assessment | - | Issue 4 | 19/02/2025 | Advanced Treescape Consulting | | Amended Flora and Fauna Assessment | - | Version 4 | 18/02/2025 | Kingfisher Urban Ecology | | Tree Root Mapping | GBGA2760 | 1 | 2/09/2024 | GBG Group | | Turntable Specification | - | - | undated | CTX45-PR | | Elevator Specifications | N-22572 | - | 9/12/2025 | Liftshop | | Amended BASIX certificate No. 1743263S_06 | ZKQUK3BJ1X-04 | - | 19/02/2025 | Paul & David Consulting Pty Ltd | | Amended NatHERS Certificate No ZKQUK3BJ1X-04 | - | - | 19/02/2025 | Paul & David Consulting Pty Ltd |

Orders

34. The Court orders that:

35. The appeal is upheld.

36. Development Consent eDA0193/24, as amended, for the demolition of existing structures and construction of a two storey dwelling with basement car parking, swimming pool, cabana, tennis court and front fence at 27 Kintore Street, Wahroonga, is determined by grant of consent, subject to the conditions of consent set out in 'Annexure A'.

Niall Macken

Acting Commissioner of the Court

Annexure A

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