Xue v Ku-ring-gai Council

Category: Principal judgment

Parties: Jianqing Xue (First Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
T Poisel (Applicant)
A Rutherford (Solicitor) (Respondent)
Solicitors:
Tyrrell’s Planning Law (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2025/275489

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of development application eREV0002/25 (DA), for a first floor addition to existing dwelling house, a new pool and related landscaping works at 3 Nyora Street, Killara, NSW, legally known as Lot 1 DP 309380 (subject site).

2. The DA was lodged with Ku-ring-gai Council on 1 July 2024, and determined by refusal by Council on 12 December 2024.

3. A s 8.2 application for review of the DA was lodged on 21 February 2025, and the review application was notified between 17-31 March 2025. One submission was received. The review application was determined by refusal on 14 May 2025.

4. The Applicant in these proceedings filed an appeal in Class 1 of the Court’s jurisdiction on 18 July 2025.

5. During the Court-arranged conciliation conference between the parties, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act), and 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. A signed agreement was submitted to the Court on 20 November 2025, in accordance with s 34(10) of the LEC Act.

6. 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.

7. 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.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

9. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent.

10. I have considered the Jurisdictional Statement and its referenced documents, the Class 1 Application and its attachments, and the documents referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

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

Jurisdictional matters

Environmental Planning and Assessment Regulation 2021

12. The DA was made with the consent of the owner of the subject site in compliance with s 23(1)(a) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

13. Pursuant to Ch 2 (Vegetation in non-rural areas) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), and supported by an ecological assessment report and an arboricultural impact assessment report, the parties agree and I am satisfied that the development will not result in the clearing of any vegetation except that authorised by the consent, and that the development does not involve the removal of any significant or protected vegetation on the subject site.

14. The Site is located within the Sydney Harbour Catchment as mapped by the Biodiversity SEPP (Sheet SHC_001).

15. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent Council or the Court on appeal has considered matters including:

(a) whether the development will have a neutral or beneficial effect on the quality of water entering a waterway,

(b) whether the development will have an adverse impact on water flow in a natural waterbody,

(c) whether the development will increase the amount of stormwater run-off from a site,

(d) whether the development will incorporate on-site stormwater retention, infiltration or reuse,

…

16. I am satisfied these matters have been considered and addressed through the Stormwater Management Plans (Amuna Civil Engineering, S1-5, Rev 5, dated 11 February 2025).

Biodiversity Conservation Act 2016

17. The rear of the site is mapped on the Biodiversity Values Map published under the Biodiversity Conservation Act 2016 (Biodiversity Act). The parties confirm, and I am satisfied, that in accordance with s 7.4 of the Biodiversity Act and cl 7.1 of the Biodiversity Conservation Regulation 2017 (NSW), the development does not trigger the Biodiversity Offsets Scheme and therefore a Biodiversity Development Assessment Report is not required.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. On the basis that the subject site has been used for residential purposes for a substantial period of time, with no known records of contaminating activity being conducted on the subject site, I accept that the development does not involve a change of use, and that subject 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

19. The proposed development is a BASIX development as defined in s 27 of the EPA Regulation and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) apply. The development application was accompanied by a BASIX certificate (certificate number A1822115 dated 17 November 2025, prepared by Energy Rating Group).

20. As the DA relates to alterations of a BASIX building, development to which the standards in Schedule 2 of the Sustainable Buildings SEPP apply, I am satisfied that the development is in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Ku-ring-gai Local Environmental Plan 2015

21. Ku-ring-gai Local Environmental Plan 2015 (KLEP) applies to the subject site, which is within the Ku-ring-gai Local Government Area (KLEP, cl 1.3).

22. The subject site is located within the R2 Low Density Residential zone. Development for the purposes of ‘semi-detached dwellings’ is permissible with consent in the R2 Low Density Residential zone. Pursuant to cl 2.3 of the KLEP, regard has been had to the relevant objectives of the zone. The proposal is consistent with these objectives, which are:

• 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.

23. The proposal is within the height standard at cl 4.3 of KLEP. The maximum building height is 9.5 m; the parties agree, and I am satisfied that the proposed development does not exceed 9.5m in height (architectural plan sheet 201, revision F, Playoust Churcher, dated 20 November 2025; survey plan, Pinnacle Land Surveyors Pty Ltd, dated 5 July 2025).

24. The proposal complies with the maximum floor space ratio (FSR) prescribed at cl 4.4 of KLEP. The subject site has a maximum permissible FSR of 0.353:1, which equates to a gross floor area of 391.58 m2; the proposal has a gross floor area of 383.53 m2.

25. The proposed development is located with the Springdale Heritage Conservation Area, identified as ‘C21’ in Schedule 5 of the KLEP, and within the vicinity of several heritage items identified of local significance in KLEP. The amended development includes changes in response to the recommendations of the heritage advisors of Council and the Applicant to address heritage impacts, and I am satisfied that the effect of the proposed development on the heritage significance of the area concerned has been considered in accordance with cl 5.10 of KLEP.

26. The subject site is identified as being in an area of Class 5 Acid Sulfate Soils (ASS) on the ASS Map at cl 6.1 of the KLEP. I accept the advice of the parties that, as the subject works are not within 500 metres of adjacent Class 1, 2, 3, or 4 land that is below 5m Australian Height Datum (AHD), and by which the watertable is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3, or 4 land, an Acid Sulfate Soils management plan is not required, and that the proposed development is consistent with cl 6.1 of the KLEP.

27. The site is mapped on the Terrestrial Biodiversity Map under cl 6.3(2) of the KLEP, which requires consideration of the impact of the development on, inter alia, any native vegetation community. The ecological assessment report (Ecological Constraints Assessment Report, Danny O’Brien) identifies that the site has been classified by the Council as containing plant community type 3616, Sydney Turpentine-Ironbark Forest. The ecological report notes that no trees relevant to this classification remain within the subject site, and the report provides an assessment of the impacts of the development on native vegetation. On this basis, I am satisfied that the development satisfies the requirement of cl 6.3.

Conclusion

28. 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.

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

30. 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.

31. The Court notes that the Respondent, Ku-ring-gai Council as the relevant consent authority, pursuant to s 38(1) of the EPA Regulation, approves the Applicant amending development application No eREV0002/25 in accordance with the documents listed below:

| Plans | | Architectural Plans prepared by Playoust Churcher Architects | | Drawing No. | Title | Revision | Dated | | A001 | BASIX | F | 20 November 2025 | | A100 | Site Analysis Plan | F | 20 November 2025 | | A101 | Existing/Demolition Plan | F | 20 November 2025 | | A102 | GD/FF Plan | F | 20 November 2025 | | A103 | Roof Plan | F | 20 November 2025 | | A200 | Elevations – Existing | F | 20 November 2025 | | A201 | Elevations – Proposed | F | 20 November 2025 | | A201A | Elevations – Proposed | F | 20 November 2025 | | A202 | Sections | F | 20 November 2025 | | A203 | Elevations – Streetscape | F | 20 November 2025 | | A204 | Photos Streetscape | F | 20 November 2025 | | 800 | Floor Area | F | 20 November 2025 | | 801 | Built Upon Area | F | 20 November 2025 | | 900 | Notice Plan | F | 20 November 2025 | | 1000 | Finishes Selections | F | 20 November 2025 | | Landscape Plans prepared by Conzept Landscape Architects | | Page No. | Title | Revision | Dated | | 1 | Site Plan | F | 20 November 2025 | | 2 | Landscape Plan | F | 20 November 2025 | | 3 | Landscape Section | F | 20 November 2025 | | 4 | Details & Specifications | F | 20 November 2025 | | Other s****upporting documents | | Document | Revision | Dated | | Photomontages prepared by Veew Studio | B | 29 August 2025 | | Statement of Environmental Effects | - | 21 June 2024 | | BASIX Certificate prepared by Energy Rating Group | A1822115 | 17 November 2025 |

Orders

32. The Court orders that:

33. The appeal is upheld.

34. Development Application No eREV0002/25, as amended, for a first floor addition to existing dwelling house, a new pool and related landscaping works at 3 Nyora Street, Killara NSW 2071 (Lot 1, DP 309380) is determined by grant of consent, subject to the conditions of consent set out in Annexure A.

N Macken

Acting Commissioner of the Court

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Annexure A (407 KB, pdf)