//
[2025] NSWLEC 1832
General information, not legal advice.
Land and Environment Court (NSW)
2025-11-28
Washington C
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Vakili v Ku-ring-gai Council [2025] NSWLEC 1832
Hearing dates: Conciliation conference on 18-19 November 2025
Date of orders: 28 November 2025
Decision date: 28 November 2025
Jurisdiction: Class 1
Before: Washington C
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application No. eDA0123/25 for alterations and additions to the existing dwelling house, construction of a swimming pool, outdoor structures and associated landscape works at 44 Shirley Road, Roseville NSW 2069, also known as Lot 11 of DP 6329, is determined by the grant of consent subject to the conditions of consent at Annexure A.
Catchwords: DEVELOPMENT APPLICATION – alterations and additions to dwelling house – heritage conservation area – conciliation conference – agreement between the parties – orders
Legislation Cited: Biodiversity Conservation Act 2016, Pt 7
Environmental Planning and Assessment Act 1979 (NSW), ss 4.14, 4.16, 8.7,
Land and Environment Court Act 1979 (NSW), ss 34, 34AA
Biodiversity Conservation Regulation 2017 (NSW), s 7.1
Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9, 6.10, Ch 6
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
the Ku-ring-gai Local Environmental Plan 2015, cll 2.7, 4.3, 4.4, 5.10, 6.1, 6.2, 6.3, 6.4, 6.5
Category: Principal judgment
Parties: Sam Vakili (Applicant)
Ku-ring-gai Council (Respondent)
Representation: Counsel:
N Eastman SC (Applicant)
A Hannam (Respondent)
Solicitors:
Hones Lawyers (Applicant)
Shaw Reynolds (Respondent)
File Number(s): 2025/234742
Publication restriction: Nil
COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Ku-ring-gai Council, of Development Application eDA0123/25 which seeks consent for alterations and additions to an existing dwelling house including addition of a first floor level, swimming pool, construction of outdoor structure and associated landscape works at 44 Shirley Road, Roseville, Lot 11 DP 6329.
These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 18-19 November 2025.
At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions, and accordingly, the matter concluded in conciliation and did not proceed to a hearing.
As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address their contentions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained. From this I note the following points.
The development application was made with the written consent of the owner of the land.
The application was adequately notified from 21 April to 19 May 2025. Two submissions were received, and one resident made oral submissions at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions. The parties agree that the amended application does not necessitate renotification as the environmental impacts are reduced.
The site has been mapped as containing plant community type PCT 3176 Sydney Enriched Sandstone Moist Forest, and is mapped as ‘Biodiversity Values’ pursuant to the Biodiversity Conservation Act 2016 (BC Act). Accordingly, a Biodiversity Development Assessment Report prepared by SIA Ecological and Environmental Planning dated 11 November 2025 (BDAR) accompanies the development application. Pursuant to s 7.1 of the Biodiversity Conservation Regulation 2017, the proposed development exceeds the biodiversity offsets scheme threshold for the purposes of Pt 7 of the BC Act.
Pursuant to s 7.13(2) of the BC Act, and from the parties’ submission and the information in the BDAR, I accept that the likely impact of the proposed development on biodiversity values has been considered, and that biodiversity credits are suitably required to be retired to offset the impacts on biodiversity values.
The site is located within the Sydney Harbour Catchment, which is a regulated catchment pursuant to Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). From the parties’ submission, the agreed conditions of consent and the Engineering Report by Martens and Associates dated 12 November 2025, I accept that the requirements of Ch 6 of SEPP B&C relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met by the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).
For the purposes of Ch 2 of the State Environmental Planning Policy (Sustainable Buildings) 2022, and pursuant to s 27 of the EPA Regulation, a BASIX certificate that relates to the development as amended accompanies the application.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. From the parties’ submission and the Statement of Environmental Effects by In House Town Planning Studio dated February 2025 (SEE), I accept that the site has been historically used for residential purposes, which continues. Further, there is no record of any contaminating activity, and I therefore accept that the site is suitable for its continued residential use.
The rear portion of the site is mapped as bushfire prone land, and pursuant to s 4.14(1)(a) of the EPA Act, the Bush Fire Assessment Report by Bushfire Consultancy Australia dated 14 November 2025 confirms that the development conforms to the specifications and requirements of the relevant version of Planning for Bush Fire Protection.
The subject site is zoned C4 Environmental Living under the Ku-ring-gai Local Environmental Plan 2015 (KLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.
Demolition is permitted with consent pursuant to KELP cl 2.7.
Pursuant to KLEP cl 4.3, a maximum building height of 9.5m applies to the subject site, with which the proposed development complies.
KLEP cl 4.4(2D) establishes a maximum floor space ratio (FSR) for the site of 0.212:1. The proposed development again complies with this development standard.
The site is not identified as a heritage item but is located within a heritage conservation area (HCA). From the Heritage Impact Statement by In House Town Planning Studio dated February 2025, and the submission of the parties, I accept that the impact of the development on the heritage significance of the HCA is acceptable pursuant to KLEP cl 5.10.
Pursuant to KLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, however the works are not likely to lower the water table below 1 metre Australian Height Datum and subsequently, the requirements of this clause are met.
The proposed development includes earthworks. From the parties’ submissions and the information contained in the Geotechnical Investigation by AscentGo dated 23 September 2025, I accept that the proposed earthworks are acceptable when considered against the matters listed in KLEP cl 6.2(3).
Pursuant to the biodiversity protection requirements of KLEP cl 6.3, from the parties’ submission and the information within the BDAR, conditions of consent and Site Environmental Management Plan by Harper Lane dated 19 August 2025, I accept that the matters listed in cl 6.3(3) have been considered. I further accept that the proposed development is both consistent with the objectives of this clause, and has been sited and managed to avoid any potentially adverse impact, or if a potentially adverse impact cannot be avoided, compliance with cl 6.3(4)(b) is achieved.
Pursuant to KLEP cl 6.4, the site is located on Riparian Land Category 2. Form the parties’ submissions, the letter from SIA Ecological & Environmental Planning Pty Ltd dated 17 November 2025, and the relevant conditions of consent, I accept that the development meets the requirements of cl 6.4(4).
Based on the parties’ submissions and the Engineering Report by Martens & Associates dated November 2025, I accept that the stormwater and water sensitive urban design of the proposed development meets the requirements of KLEP cl 6.5.
For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
The Court notes:
Ku-ring-gai Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending the development application to rely upon the following amended plans and documents:
| Document | Date | | 1. | Architectural plans prepared by Harper Lane Architects: | 18 November 2025 | | Plan | Name | Rev | Date | | A100 | Project Title | Rev Q | 18 November 2025 | | A101 | Material and Finish Schedule | Rev Q | 18 November 2025 | | A201 | Lower Ground Floor Existing + Demolition | Rev Q | 18 November 2025 | | A202 | Ground Floor Existing + Demolition | Rev Q | 18 November 2025 | | A203 | Roof Plan Existing + Demolition | Rev Q | 18 November 2025 | | A204 | Landscape Plan Existing + Demolition | Rev Q | 18 November 2025 | | A221 | Lower Ground Floor | Rev Q | 18 November 2025 | | A222 | Ground Floor | Rev Q | 18 November 2025 | | A223 | First Floor | Rev Q | 18 November 2025 | | A224 | Roof Plan Proposed | Rev Q | 18 November 2025 | | A225 | Landscape Concept Plan | Rev Q | 18 November 2025 | | A231 | Site Analysis Plan | Rev Q | 18 November 2025 | | A232 | Stormwater, Erosion and Sediment Control Plan | Rev Q | 18 November 2025 | | A233 | Built Upon Area Calculation Plan | Rev Q | 18 November 2025 | | A234 | Gross Floor Area Calculation Plan | Rev Q | 18 November 2025 | | A235 | Cut and fill plan | Rev Q | 18 November 2025 | | A301 | North-West Elevation | Rev Q | 18 November 2025 | | A302 | South-East Elevation | Rev Q | 18 November 2025 | | A303 | South-West Elevation | Rev Q | 18 November 2025 | | A304 | North-East Elevation | Rev Q | 18 November 2025 | | A305 | Shirley Rd Streetscape Elevation | Rev Q | 18 November 2025 | | A401 | Sections | Rev Q | 18 November 2025 | | A402 | Garage and driveway slab sections | Rev Q1 | 19 November 2025 | | A501 | Shadow diagram 21 June 9am proposed | Rev Q | 18 November 2025 | | A502 | Shadow diagram 21 June 10am proposed | Rev Q | 18 November 2025 | | A503 | Shadow diagram 21 June 11am proposed | Rev Q | 18 November 2025 | | A504 | Shadow diagram 21 June 12am proposed | Rev Q | 18 November 2025 | | A505 | Shadow diagram 21 June 3pm proposed | Rev Q | 18 November 2025 | | A506 | Shadow diagram 21 June 9am existing | Rev Q | 18 November 2025 | | A507 | Shadow diagram 21 June 10am existing | Rev Q | 18 November 2025 | | A508 | Shadow diagram 21 June 11am existing | Rev Q | 18 November 2025 | | A509 | Shadow diagram 21 June 12 noon existing | Rev Q | 18 November 2025 | | A510 | Shadow diagram 21 June 3pm existing | Rev Q | 18 November 2025 | | A601 | LEP Max Building Height Limit | Rev Q | 18 November 2025 | | A602 | Streetscape perspective | Rev Q | 18 November 2025 | | A603 | Pool details | Rev Q | 18 November 2025 | | A604 | Driveway details | Rev Q | 18 November 2025 | | A605 | Podium details | Rev Q | 18 November 2025 | | 2. | Landscape plans prepared by Sitedesign+studios | 18 November 2025 | | Plan | Name | Rev | Date | | L-00 | Title Page | Rev F | 18 November 2025 | | L-01 | Site Plan + Existing Planting | Rev F | 18 November 2025 | | L-02 | Site Plan + Proposed Planting | Rev F | 18 November 2025 | | L-03 | Ground Floor Landscape Plan | Rev F | 18 November 2025 | | L-04 | Lower Ground Floor Landscape Plan | Rev F | 18 November 2025 | | L-05 | Rear Landscape Plan | Rev F | 18 November 2025 | | L-06 | Landscape Calculation Plan | Rev F | 18 November 2025 | | L-07 | Landscape Sections A | Rev F | 18 November 2025 | | L-08 | Landscape Sections B | Rev F | 18 November 2025 | | L-09 | Landscape Sections C | Rev F | 18 November 2025 | | L-10 | Planting Schedule & Details | Rev F | 18 November 2025 | | 3. | Stormwater Management Plans prepared by Martens & Associates | 19 November 2025 | | 4. | Updated Engineering Report prepared by Martens & Associates | 11 November 2025 | | 5. | Arboricultural Impact Assessment Report prepared by Blues Bros Arboricultural | 13 November 2025 | | 6. | Biodiversity Development Assessment Report prepared by SIA Ecological & Environmental Planning | 11 November 2025 | | 7. | Bushfire Assessment Report prepared by Bushfire Consultancy Australia | 14 November 2025 | | 8. | BASIX Certificate No. A1821778 | 13 November 2025 | | 9. | Pre-construction Cost Estimate prepared by QPC&C Pty Limited | 29 September 2025 |
The Court orders:
The appeal is upheld.
Development Application No. eDA0123/25 for alterations and additions to the existing dwelling house, construction of a swimming pool, outdoor structures and associated landscape works at 44 Shirley Road, Roseville NSW 2069, also known as Lot 11 of DP 6329, is determined by the grant of consent subject to the conditions of consent at Annexure A.
**********
Annexure A (400 KB, pdf)
Corrected a typographical error on the cover sheet.
Errors at Condition 1 and 41 of Annexure A amended
Vakili
Ku-ring-gai Council [2025] NSWLEC 1832