//
[2025] NSWLEC 1889
General information, not legal advice.
Land and Environment Court (NSW)
2025-12-16
Targett 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: Wey Group Pty Ltd v Ku-ring-gai Council [2025] NSWLEC 1889
Hearing dates: 15, 16 September 2025
Date of orders: 16 December 2025
Decision date: 16 December 2025
Jurisdiction: Class 1
Before: Targett C
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted to Development Application eDA0023/25, as amended, for the construction, on each lot, of a two storey dwelling house, swimming pool, tennis court and associated landscaping and stormwater works, on land identified as Lots 17 and 18 in Deposited Plan 8268, known as 30 Wellington Road, East Lindfield, subject to the conditions in Annexure A.
(3) The exhibits are returned except for Ex 5, B, D and G.
Catchwords: APPEAL — residential — development application — s34AA — 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, 34AA, 39
Ku-ring-gai Local Environmental Plan 2022, cll 1.2, 6.1, 6.2, 6.5,
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
Super Studio v Waverley [2004] NSWLEC 91
Texts Cited: Ku-ring-gai Development Control Plan 2024
Category: Principal judgment
Parties: Wey Group Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)
Representation: Counsel:
A Hannam (Applicant)
J Walker (Solicitor) (Respondent)
Solicitors:
McKee Lawyers (Applicant)
Maddocks Lawyers (Respondent)
File Number(s): 2025/184916
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 eDA0023/25 (Development Application). The Development Application sought consent for the construction, on each lot, of a two storey dwelling house, swimming pool tennis court and associated landscaping and stormwater works, on land identified as Lots 17 and 18 in Deposited Plan 8268, known as 30 Wellington Road, East Lindfield (Subject Land).
The appeal was subject to conciliation on 20 August 2024 in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act). As agreement was not reached, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(ii) of the LEC Act.
The Court inspected the Subject Land and part of Wellington Road with the parties and their experts on the first day of hearing.
The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the LEC Act. The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act, having regard to the matters required to be considered in s 4.15 of the EPA Act.
The registered proprietors of the Subject Land provided their consent to the lodgement of the Development Application (see Class 1 Application, tab 1).
The Subject Land is generally rectangular in shape with a total area of 2953.5m2 and located on the western side of Wellington Road, East Lindfield (Statement of Facts and Contentions filed 16 June 2025 (SOFAC) at par 3-5 (Ex 1)).
The Subject Land presently comprises two lots:
Lot 17: 1450.52m2; and
Lot 18: 1503.02m2.
The Subject Land currently accommodates a church which will be demolished via complying development process and demolition subsequently does not form part of this application.
The Subject Land is zoned R2 Low Density Residential under the Ku-ring-gai Local Environmental Plan 2015 (KLEP).
The Development Application was lodged with the respondent on 10 February 2025.
The Development Application was notified from 25 February 2025 and 11 March 2025 with no submissions received.
On 3 April 2025, the Development Application was refused.
On 14 May 2025, the proceedings were commenced, being within the appeal period prescribed by s 8.10 of the EPA Act.
On 16 June 2025, the respondent filed its SOFAC (Ex 1).
During the hearing, the applicant sought, and was granted, leave to amend the Development Application (Amended Development Application) which was not opposed by the respondent. The amendments include:
only relying on tabs 1-3, 11-14 and 17 of the Class 1 Application (Ex A);
updated architectural and landscaping plans (Ex B);
photomontages (Ex D);
updated Basix Certificates for Lots 17 and 18 (Ex C); and
updated photomontage/landscaping document (Ex G).
The amendments primarily related to:
relocating the location of the proposed driveway on Lot 17 to retain Tree 16;
changing the location of the proposed path on Lot 18 to preserve an existing cluster of trees;
amending the proposed fencing;
compliant setbacks for the proposed tennis courts and increased landscaping buffers to neighbours;
further articulation of side walls;
amendments to proposed landscaping;
changes to the front façade of Lot 18 to include horizontal elements to reduce three storey appearance; and
amendments to the proposed stormwater system.
The issues remaining in dispute at the hearing can be distilled as follows:
Whether the Amended Development Application constitutes an unreasonable overdevelopment of the Subject Land, having regard to the proposed built upon area and impacts on streetscape and local character.
Whether the basement garages, driveways and front retaining walls result in a development that should be refused having regard to the local streetscape character.
Whether the Amended Development Application proposes unrelieved walls that warrant the refusal of the proposal.
For the reasons that follow, I have determined to grant consent to the Amended Development Application subject to the conditions at Annexure A.
The applicant relied on the expert evidence of Mr Minto (town planning), Mr Zhao (stormwater engineering), Mr Draper (arboriculture), Mr Brady (landscaping), and Mr Crozier (geotechnical).
The respondent relied on the expert evidence of Ms Alexander (town planning), Ms Askew (arboriculture and landscaping), Mr Ooi (stormwater engineering and geotechnical).
The following joint reports were filed and subsequently tendered at the hearing:
Joint Report by Stormwater Engineers prepared by Mr Zhao and Mr Ooi filed 18 August 2025 (Ex 2) (Joint Stormwater Report).
Supplementary Arborist Joint Expert Report prepared by Mr Draper and Ms Askew filed 18 August 2025 (Ex 3) (Joint Arborist Report).
Landscape Joint Expert Report prepared by Mr Brady and Ms Askew filed 20 August 2025 (Ex 4) (Joint Landscape Report).
Town Planning Joint Report prepared by Mr Minto and Ms Alexander filed 21 August 2025 (Ex 5) (Joint Town Planning Report).
Geotechnical Engineers Expert Witness Joint Report prepared by Mr Crozier and Mr Ooi (Ex 6) (Joint Geotechnical Report).
(a) it has considered whether the land is contaminated, and
(b) if the land is contaminated, it is satisfied that the land is suitable I its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and
(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.
The parties agree that the Subject Land is suitable for its proposed use having regard to s 4.6(1) of the RH SEPP on the basis of the Subject Land’s historical use as a church in a residential setting with no known history of contaminating uses. The applicant further took the Court to the respondent’s Development Assessment Report (Assessment Report) at Ex 9, tab 6 (see p 55).
Having regard to the agreement of the parties and the conclusions in the Assessment Report, I confirm that I have considered the matters listed in s 4.6(1) of the RH SEPP and am satisfied that the Subject Land is suitable for the proposed development. I further accept the agreement of the parties that s 4.6(2) of the RH SEPP does not apply to the proposed development.
Pursuant to the provisions of the State Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP), the Amended Development Application is accompanied by updated BASIX Certificates for Lot 17 and Lot 18 (both of which are contained in Ex C). Pursuant to s 2.1(5) of the SB SEPP, I am satisfied that the BASIX Certificates quantify the embodied emissions attributable to the development. For completeness, I note that a previous contention of the respondent relating to the BASIX certificates was not pressed at hearing following amendments to the application and the provision of updated certificates.
The Subject Land is located within the Sydney Harbour Catchment for the purposes of Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP). The parties agree, and I accept, that the Amended Development Application is consistent with the requirements for developments within the Sydney Harbour Catchment and will not result in any impact on such catchments, having regard to the amended Stormwater Plans prepared by MBC Engineering dated 14 September 2025 (Stormwater Plans) (see Ex B, tabs 7 and 8), agreement of the engineers in the Stormwater Joint Report (see pp 3-5) and Agreed Conditions of consent (in the event that the Court was minded to grant consent).
As set out above, the Subject Land is zoned R1 Low Density Residential under the KLEP. Dwelling houses are permitted with consent in the R2 zone. The aims of the KLEP set out in cl 1.2(2) are as follows:
(2) The particular aims of this Plan are as follows—
(aa) to protect and promote the use and development of land for arts and cultural activity, including music and other performance arts,
(a) to guide the future development of land and the management of environmental, social, economic, heritage and cultural resources within Ku-ring-gai,
(b) to protect, enhance and sustainably manage the biodiversity, natural ecosystems, scenic values, water resources and ecological processes within the catchments of Ku-ring-gai for the benefit of current and future generations,
(c) to maintain and improve water quality within the catchments of Ku-ring-gai,
(d) to facilitate adaptation to climate change,
(e) to manage risks to the community and the environment in areas subject to natural hazards and risks,
(f) to recognize, protect and conserve Ku-ring-gai’s indigenous and non-indigenous cultural heritage,
(g) to ensure that development does not conflict with the hierarchy of commercial centres in Ku-ring-gai,
(h) to encourage a diversity of employment within Ku-ring-gai,
(i) to encourage a variety of housing types within Ku-ring-gai,
(j) to achieve land use relationships that promote the efficient use of infrastructure,
(k) to facilitate good management of public assets and promote opportunities for social, cultural and community activities,
(l) to facilitate development that complements and enhances amenity for residential uses and public spaces,
(m) to establish a hierarchy of commercial centres for Ku-ring-gai,
(n) to facilitate development of the commercial centres to enhance Ku-ring-gai’s economic role and cater to the retail and commercial needs of the local community,
(o) to protect the character of low density residential areas and the special aesthetic values of land in the Ku-ring-gai area.
• 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.
The parties disagreed as to whether the Amended Development Application was consistent with either the aims of the KLEP generally or the objectives of the R2 zone. Consistently with the aims and objectives of the KLEP and R2 zone will be considered in the context of the central issues in dispute later in this judgment.
It was agreed, and I accept, that the Amended Development Application is compliant with all relevant development standards in the KLEP, including, height and floor space ratio (FSR) and minimum lot size and landscaping.
In relation to cl 6.1 of the KLEP relating to acid sulfate soils, I rely on the Assessment Report which states that cl 6.1 of the KLEP does not apply to the proposal “as the works are more than 500m of adjacent Class 1, 2, 3 or 4 land” (see p 58 of Ex 9).
In relation to cl 6.2 of the KLEP relating to earthworks, I accept the agreement of the parties that the matters listed in cl 6.2(3) have been appropriately considered, having regard to the Geotechnical Report prepared by Crozier Geotechnical Consultants dated August 2025 (Geotech Report) and agreement of the engineers in the Engineering Joint Report (see p 3). For completeness, I note that the respondent maintains issue with the extent of proposed excavation at hearing, but this concern is limited to the matter of streetscape impact rather than unacceptable excavation impacts per say having regard to the matters listed for consideration in cl 6.2(3) of the KLEP.
In relation to cl 6.5 of the KLEP relating to stormwater and water sensitive urban design, the applicant submits, which was not refuted by the respondent, that the Amended Development Application satisfies the provisions of cl 6.5(2), having regard to the Stormwater Plans, agreement of the engineers in the Stormwater Joint Report (see pp 3-5) and Agreed Conditions of Consent. On this basis, I accept that the Amended Development Application satisfies the matters listed in cl 6.5(2) of the KLEP.
The Ku-ring-gai Development Control Plan 2024 (KDCP) also applies to the Amended Development Application. Part 4 of the KDCP relating to “dwelling houses” is particularly relevant. The issues set out at [17] above that remained in dispute at the hearing primarily relate to the Amended Development Application’s compliance with the objectives and controls of relevant provisions in Pt 4 of the KDCP. The provisions in dispute have been extracted below:
4A.1 LOCAL CHARACTER AND STREETSCAPE
Objectives
1 To ensure the development is sensitive to the landscape setting, environmental conditions and established character of the street and locality.
2 To ensure the development conserves and enhances the visual character of the street with particular reference to integration of:
i) architectural themes;
ii) building scale and setbacks;
iii) landscape themes; and
iv) fencing styles.
3 To ensure development provides a positive contribution to the public domain and all areas shared by the community.
4 To ensure that the visual, scenic and environmental qualities on visually prominent sites are maintained.
Controls
Visual Character
1 Design components of new development are to be based on the existing predominant and high quality visual character of the local neighbourhood.
2 The appearance of the dwelling is to maintain the local visual character by considering the following elements:
i) visibility of on-site development when viewed from the street, public reserves and adjacent properties; and
ii) relationship to the scale, layout and character of the tree dominated streetscape of Ku-ring-gai.
3 The prominent and high quality characteristics of the neighbourhood are to be identified and considered as part of the site analysis.
Note: Visual character or streetscape is created by many features including: lot sizes, fencing, kerbs, setbacks, building separation and spaces between buildings, separation, access arrangements, street tree planting, tall tree canopy backdrop to the horizon, native vegetation and private gardens, as well the architecture of individual residences and their associated structures.
…
4A.3 BUILT-UPON AREA
Objectives
1 To ensure that development is consistent with the local built and landscape character.
2 Ensure the built form is in scale with the tree canopy.
3 To provide sufficient soft landscaped area for the planting and retention of tall trees.
4 To provide an appropriate balance between the natural and built elements of the site.
5 To retain areas for habitat, connectivity and locally occurring native vegetation.
6 To minimise impervious surfaces generating storm water runoff.
7 To provide useable high quality open space.
8 To provide adequate space for screen planting between buildings.
Controls
1 All sites, except those within the C4 Environmental Living zone and dual occupancy permitted under Schedule 1 of KLEP, are to meet the following standards:
i) sites with the following sizes are to have a maximum built-upon area (BUA) as follows:
ii) for alterations and additions, on sites where the existing BUA is greater than that listed above, the maximum BUA is the existing BUA, however, a reduction in BUA is desirable.
iii) the proposal is to include a reasonable provision of built elements, normally associated with a residential property, such as pathways, and show consideration of these elements at an early stage of the design process
…
4B.3 CARPORTS AND GARAGES
Objectives
1 To encourage the design of functional car parking facilities that are integrated with the built form of the dwelling.
2 Carports and garages are to present as complementary and sympathetic visual elements within the streetscape.
3 To ensure the garages and carports are not the primary built form when viewing the dwelling from the street or public domain.
4 To ensure the location of carports and garages considers existing trees, structures on adjacent sites, streetscape and visual character.
5 To minimise impacts of excavation on the built environment and the streetscape.
6 To minimise 3 storey streetscape building appearances in low density residential areas.
7 To avoid excavation in the front setback area and maintain existing ground levels to the street.
Controls
Design of Carports and Garages
1 The car parking spaces, whether covered or uncovered, are to be located at or behind the required front setback as specified in Part 4A.2(2) & (15) of this DCP, or behind the front building line defined by the existing dwelling where the dwelling is being retained, whichever is the lesser.
2 The scale and design of carport and garage structures are:
i) to be sympathetic to existing development on-site;
ii) to consider adjacent buildings;
iii) to consider proximity to drainage systems;
iv) to be integrated into the building design; and
v) not to dominate the site, dwelling and landscape, or the streetscape.
3 Alterations and additions should not prevent the future ability of the site to accommodate two car spaces behind the building line.
4 Council may consider a reduced setback for parking spaces on steeply sloping sites.
5 Where it is not possible to locate the parking structure space behind the minimum permissible setback or the building line due to topographical constraints or side setback space of less than 3m, structure is to comply with the following:
i) the structure is to be open sided;
ii) the structure is to be located at the maximum possible distance from the front property boundary; and
iii) the design of the structure is be of a scale and form that is compatible with the streetscape character.
6 The width of any detached or attached carport/garage visible from the street is not to be greater than 6m, as measured to the outer face of the exterior walls/column/posts (refer to Fig 4B.3-1).
7 Basement garages are only permitted on sloping land and where no more than 1m excavation is required for driveway access.
…
4C.1 BUILDING ENVELOPES
Objectives
1 To limit the height and bulk of buildings so that they do not dominate the natural landscape or the tree canopy.
2 To ensure that buildings are responsive to the site.
3 To maintain the integrity of the existing streetscape.
4 To provide for quality interior spaces while considering the external building form requirements.
5 To limit the extent of visual and noise intrusion on the private spaces of neighbouring properties.
6 To allow adequate daylight, sunlight and ventilation to habitable rooms and private open spaces for new and neighbouring dwellings of the site and of neighbouring sites.
7 To ensure that significant views from neighbouring dwellings and public reserves are not adversely impacted.
8 To minimise 3 storey streetscape building appearances and maintain a low density domestic scale in residential areas.
9 To avoid excavation outside the building line and ensure deep soil provision.
Controls
…
5 Excavation for a basement garage or other rooms on land that is not steeply sloping is not permitted.
…
4C.2 BUILDING FACADES
Objectives
1 To encourage well designed, attractive and site responsive buildings.
2 To minimise the bulk and scale of the built form.
3 To avoid massive and unrelieved walls to side boundaries.
4 To ensure the integration of alterations and additions into an existing building so that the building continues to appear as a single dwelling.
5 To ensure high impact elements such as noise sources are considered early in the design stage.
Controls
1 Extensive blank or unarticulated walls to street frontages will not be permitted.
2 All external facades are to be articulated to reduce the apparent building mass and present a human scale. This may be achieved through the use of bay window openings, window awnings, chimney and alcove features, verandas, pergolas, balconies, entry porches, staggered wall planes, a combination of materials and finishes, decorative architectural elements including brick corbelling, banding and recesses.
3 The maximum length for an unrelieved wall is 12m. Where walls exceed 4m in height, the maximum length for an unrelieved wall is 8m.
4 Side elevations are to avoid unrelieved walls. This may be achieved by:
i) dividing walls into sections, bays or modules;
ii) separating wall sections with recesses or courtyards.
…
6 Building design is to integrate soft landscaping and natural site features and make provision for tall shrub plantings.
…
This question involves consideration of the objectives of the KLEP, R2 zone and provisions in ss 4A.1, 4A.3 and to a lesser extent 4C.1 of the KDCP.
Although there is some overlap between this issue and the consideration of streetscape impacts due to the basement garage and associated excavation, I have dealt with these contentions separately.
The parties agree that the Amended Development Application proposes a built upon area of 58% per lot, which exceeds the relevant control in s 4A.3(1)(i) of the KDCP of 50%.
The respondent relies on the evidence of Ms Alexander that:
the proposed built upon area is excessive and exceeds the 50% control in the KDCP;
the proposal is trying to fit too much on the site, and in doing so, compromises achieving a built form which is consistent with the streetscape character of the area; and
the proposal is being assessed under the development application process and it is therefore the relevant provisions of the KLEP and KDCP that are primarily relevant to the consideration of the application.
The respondent therefore submits that:
The non compliance with the built upon area control means that the buildings are to be built forward to accommodate the tennis courts at the rear and this means that there is less area for soft landscaping than there otherwise would be and it is driving the loss of seven out of nine trees currently in the front setback (albeit the loss of those specific trees is not relied upon per se as a reason for refusal).
The proposal therefore does not meet objective 3 in s 4A.3 of the KDCP, being “to provide sufficient soft landscaped area for the planting and retention of tall trees” and should be refused.
The applicant relies on the evidence of Mr Minto that although the proposal exceeds the built upon area control in s 4A.3 of the KDCP, the proposal still meets the objectives of that control by providing meaningful landscaping which has been accepted by the respondent as meeting all relevant landscaping controls in the KDCP. Further the proposed tennis courts are currently occupied by a carpark so no vegetation is being removed to facilitate those courts and the landscaping will enhance and increase what is located on the Subject Land currently.
The applicant submits that:
As accepted by Ms Alexander, in terms of built upon area controls, what is critically important is not so much whether or not you strictly meet the 50% control, but rather, whether the environmental impacts that might arise from that built upon area are acceptable (Tcpt, 15 September 2025, p 26(16-28)).
The proposal meets the relevant objectives in s 4A.3 of the KDCP and the environmental impacts are acceptable, notwithstanding over 1m in excavation is proposed to facilitate the basement and the proposal exceeds the 50% built upon area control. The Amended Development Application cannot reasonably be considered to be an overdevelopment of the site in circumstances where the proposal complies with all KLEP development standards and all setback and landscaping requirements in the KDCP.
I accept that the key consideration in construing the built upon area controls in the KDCP, as agreed between the town planning experts, is whether the environmental impacts that might arise from the built upon area are acceptable. In circumstances where the proposal meets all relevant standards and controls in the KLEP and all setback and landscaping controls in the KDCP, I am satisfied that the environmental impacts of the built upon area proposed are acceptable in this case. This is particularly having regard to the extensive landscaping proposed and the conditions of consent requiring the implementation of the approved landscaping plan, the retention of key trees in the front setback including Tree 16, and appropriate setbacks across the sites.
Although I accept that a different proposal could have provided further vegetation and a reduced built upon area, I must determine the application before me. I have placed significant weight on the fact that it is agreed that the proposal complies with all landscaping controls and objectives in the KDCP. I am therefore satisfied that the objectives in s 4A.3, including to provide sufficient soft landscaped area for the planting and retention of tall trees, and to provide an appropriate balance between the natural and built elements of the site have been met.
The respondent relies on the evidence of Ms Alexander that by deleting the pools or tennis courts, there would be scope to set the dwellings back further from the street to enable an at grade garage to be integrated into the design thus requiring less excavation. The respondent further relies on the evidence of Ms Alexander that the extent of excavation required to ramp the driveways downwards is out of character with this streetscape and different to all the other dwellings in the street. Further it is Ms Alexander’s view that the basement driveways will result in a part three storey appearance which is out of character with the streetscape which is characterised by 1-2 storey dwellings.
The respondent submits that there is a very consistent pattern in this neighbourhood of dwellings where parking is provided at grade. Control 7 in s 4B.3 of the KDCP provides that there should not be basement garages except on steeply sloping sites (which this site is not). Mr Minto accepts that there were no basement garages located on this street (Tcpt, 15 September 2025, p 42(17-28)). Examples provided by Mr Minto of dominant driveways and garages on Wellington Road are on properties with a significantly steeper grade than the Subject Land and are not appropriate comparators.
The respondent submits that although there are some viewpoints where the garage and retaining walls are not visually dominant as depicted on the photomontages, there are other viewpoints (not depicted on the photomontages) such as walking along the same side of the street to the Subject Land, where the proposal would present as a three storey dwelling with a dominant and “tunnel like” driveway and retaining walls.
The respondent further submits that the applicant’s significant reliance on landscaping to hide the excavated driveway and retaining walls is misplaced as the applicant is attempting to screen a poor building form rather than propose a positive building form. There is no guarantee that the landscaping proposed will achieve the luxuriant effect the applicant is aiming for, achieve the desired screening or reach the mature heights proposed. The Court should not put material weight on the proposed landscaping in deciding whether the basement excavation is acceptable (Super Studio v Waverley [2004] NSWLEC 91 at [6] (Super Studio)).
The applicant relies on the evidence of Mr Minto that:
The proposed driveways being excavated downwards means that the driveways actually becomes less dominant within the streetscape and the buildings become the focus. This is superior to many other properties on the street where the driveway is ascending upwards and more visually dominant.
The view of the basement from the street for both properties will be limited to the narrow aperture of the driveways when viewed from immediately in front of the driveway crossings.
There are examples of other properties in the street (such as 36 Wellington Road) which present as three storeys and have visually dominant driveways and garages.
The applicant submits that there are examples of dwellings approved under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) on Wellington Road and it is relevant to consider those dwellings and relevant Codes SEPP controls when considering streetscape, consistency of the dwellings in the streetscape, and the concept of “excessiveness”. For example, the complying development pathway under the Codes SEPP allows excavation up to a maximum depth of three metres (as opposed to the one metre allowed for by the KDCP).
Further, the applicant submits that just because there are differences in topography on Wellington Road, it remains the case that both sides of the street and either side of the Subject Land remain relevant when determining streetscape and consistency with that streetscape.
As accepted by Ms Alexander, the proposed basement garages have not compromised the ability of the proposal to provide a soft landscaped setting as demonstrated by the photomontages (Tcpt, 15 September 2025, p 37(44-49)). Further, with respect to the respondent’s submission that landscaping cannot be relied on having regard to Super Studio, the applicant submits that this planning principle is 20 years old and has only ever been applied when considering matters of privacy and is not relevant in the present case. The applicant further submits that in addition to proposed landscaping, the Amended Development Application has gone to some lengths to retain existing trees on the north of Lot 18 and south of Lot 17 and in particular, Tree 16.
Further, it is not disputed that the Amended Development Application complies with all relevant landscaping provisions in the KDCP, notwithstanding either the built form, or basement garages and associated excavation and retaining walls.
I am satisfied that the existing character of the street is that of predominantly one to two storey dwellings, although I accept that some dwellings such as 36 Wellington Road, present as three storeys. I do not consider that the proposal, which only presents as partially three storeys from certain view points and which comply with the height standard in the KLEP, is out of keeping with the streetscape. I therefore do not consider this to be a reason for refusal.
I accept that basement garages are not present on Wellington Road. However, I am of the view that the street contains a variety of different driveway and garage arrangements including both at grade and up slope of the street. In some cases, driveways are significantly upslope and the driveway and/or retaining walls form a dominant feature in the landscape (see for example, 32, 34, 36 and 40 Wellington Road). I am satisfied that the proposal is not out of keeping with this streetscape which contains heterogeneous driveway and garage arrangements. I accept Mr Minto’s evidence that the basement garages proposed will be less visually dominant than some of the other driveways and garages on the street and are not inconsistent with the existing streetscape. Therefore, I am satisfied that the proposal meets the objectives in s 4A.1 of the KDCP.
I accept the applicant’s submission that the excavation proposed is not excessive and that this is particularly apparent when the excavation provisions in the Codes SEPP are considered. I am satisfied that the excavation proposed is reasonable in the circumstances having regard to the fact that:
the engineering experts agree that there are no engineering issues associated with the excavation;
I have determined that the proposed driveway, garage and retaining walls are not inconsistent with the streetscape; and
all setback and landscaping controls in the KDCP are complied with notwithstanding the proposed excavation.
The respondent submits that little weight should be placed on the proposed landscaping to screen the proposed retaining walls, driveway and basement structure given the planning principle espoused in Super Studio (namely that there is no guarantee of landscaping viability when considering matters of privacy). However, the respondent places significant weight, and invites the Court to place significant weight, on objectives and controls in the KDCP regarding landscaping and its importance (for example objective 3 in s 4.3A). It seems to me difficult to place significant weight on landscaping in interpreting objectives and controls and then disregard landscaping in interpreting other objectives and controls. In my view, it is appropriate to consider and give weight to the landscaping proposed by the Amended Development Application, including the retention of Tree 16 which was agreed to be of importance in this matter. I am of the view that the landscaping proposed will largely screen the driveway and basement garage.
I further note it is an agreed condition of consent (were consent to be granted to the proposal) that the Landscaping Plan be complied with prior to the issue of an Occupation Certificate (Conditions 1 and 67 of the Agreed Conditions) and specified existing trees be protected (Conditions 1, 10-15 and 47-50 of the Agreed Conditions). It is reasonable to assume that conditions of consent will be complied with.
I am therefore satisfied that the Amended Development Application should be approved having regard to ss 4A.1, 4B.3 and 4C.1 of the KDCP.
No merit issues other than those considered above were raised by the respondent in the hearing.
I am satisfied that all relevant jurisdictional and merit issues have been addressed and there is no impediment to the grant of consent to the Amended Development Application.
I rely on the documents comprising the Amended Development Application and the views of the relevant experts in the Joint Stormwater Report, Joint Arborist Report, Joint Landscape Report, Joint Town Planning Report and Joint Geotechnical Report.
I also rely on the fact that contentions relating to arboriculture, landscaping, geotechnical engineering, stormwater, floor space ratio, setbacks, BASIX certificates, visual privacy and insufficient information have all been resolved by the Amended Development Application subject to the Agreed Conditions.
Ultimately, having regard to the facts, evidence and submissions in this case, I am satisfied that the Amended Development Application should be approved subject to the conditions in Annexure A, having regard to the matters listed for consideration in s 4.15 of the EPA Act.
The Court orders that:
The appeal is upheld.
Development consent is granted to Development Application eDA0023/25, as amended, for the construction, on each lot, of a two storey dwelling house, swimming pool, tennis court and associated landscaping and stormwater works, on land identified as Lots 17 and 18 in Deposited Plan 8268, known as 30 Wellington Road, East Lindfield, subject to the conditions in Annexure A.
The exhibits are returned except for Ex 5, B, D and G.
**********
Annexure A (498 KB, pdf)
Wey Group Pty Ltd
Ku-ring-gai Council [2025] NSWLEC 1889