Yuan Hai Pty Ltd v Ku-ring-gai Council

Texts Cited: Ku-ring-gai Community Participation Plan

Category: Principal judgment

Parties: Yuan Hai Pty Ltd ACN 672032290 (Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
G McKee (Solicitor)(Applicant)
C Rose (Solicitor)(Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2025/45178

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application eDA0316/24 (Development Application) seeking consent for the demolition of existing structures, Torrens title subdivision of one lot into two and construction of a new dwelling and associated works (Proposed Development) at 75 Douglas Street, St Ives legally described as Lot C in DP 410104 (the Site).

2. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 30 June and 1 July 2025. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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. 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.

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

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be various terms of the Ku-ring-gai Local Environmental Plan 2015 (KLEP). The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement provided to the Court.

7. The Development Application was made with the written consent of the owner of the land, Yuan Hai Pty Ltd which satisfies s 23 of the Environmental Planning and Assessment Regulation 2021*.*

8. On 27 August 2024, the Proposed Development was notified in accordance with the Ku-ring-gai Community Participation Plan for a period of 14 days between 03 September 2024 and 17 September 2024. No submissions were received.

9. The Site is zoned R2 Low Density Residential under the KLEP. Development for the purposes of “dwelling houses” is permissible with consent in the R2 Low Density Residential zone.

10. Subdivision of the Site is permissible with consent pursuant to cl 2.6 of the KLEP and the proposed Torrens title subdivision of the Site will result in two allotments being Lot 1 which retains an area of 981.98m2 and Lot 2 which retains an area of 930.18m2 (excluding access handle). The size of the new allotments complies with the minimum subdivision lot size development standard of 930m2 (excluding any access handle) pursuant to cl 4.1 of the KLEP.

11. The Site is subject to a maximum floor space ratio (FSR) development standard of 0.3:1 pursuant to the cl 4.4 of the KLEP. However, in accordance with sub-cl 4.4(2A), a variation to the maximum permissible FSR is applicable. In this instance and based upon a site area of 981.98m2, the maximum floor area of 365.495m2 or an FSR of 0.3722:1 development standard applies to the Site. The Proposed Development provides for a total floor area of 365.02m2 or a compliant FSR of 0.3717:1.

12. The Site is identified on the Height of Buildings (HOB) map as “J2” which is restricted to a maximum building height of 9.5 metres under cl 4.3(2) of KLEP. The Architectural plans, prepared by Fyffe Design, Revision 14 dated 7 April 2025, demonstrates that the Proposed Development has a maximum HOB of 9.5 metres and which complies with the development standard.

13. The Site is not identified as comprising a heritage item and is not considered to have any heritage significance. Further, the Site is not located within a Heritage Conservation Area: cl 5.10, KLEP.

14. The Statement of Environmental Effects (SEE) prepared by Minto Planning Services dated 6 August 2024 and filed with the Class 1 Application, provides at p 19 that the Proposed Development is considered to satisfy the terms of cl 6.1 of the KLEP because the Site is not located within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum (AHD) and by which the watertable is likely to be lowered below 1 metre AHD. Accordingly, notwithstanding that the Site is identified as containing ‘Class 5’ Acid Sulfate Soils pursuant to cl 6.1 of the KLEP, consent is not expressly requires under this clause because this clause requires development consent for the carrying out of works described in the Table on land shown on the Acid Sulfate Soils Map as being of the class specified for those works. ‘Class 5’ describes such work as:

Works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land.

15. Pursuant to cl 6.2(2)(b) of the KLEP, development consent is required for earthworks and associated groundwater dewatering unless:

the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given.

16. The earthworks relate to fill associated with the provision of a level building platform and which is wholly contained within the dwelling footprint. As expressed on p 19 of the SEE:

“It is not considered that there will be any detrimental impacts associated with the proposed earthworks and that they will result in development consistent with the objective of this clause”.

17. The Site is not identified as:

18. a flood prone area: cl 5.21, KLEP;

19. containing land of biodiversity significance on Council’s Terrestrial Biodiversity Map and the NSW Biodiversity Values Map: cl 6.3, KLEP; or

20. containing a watercourse or related riparian zone: cl 6.4, KLEP.

21. In relation to water sensitive urban design measures to achieve the Objectives of cl 6.5 ‘Stormwater and water sensitive urban design’ of the KLEP, I accept that the terms of cl 6.5 of the KLEP have been comprehensively addressed in the Stormwater Joint Expert Report, prepared by Mr Bruce Kenny for the applicant and Mr Vincent Ooi for the respondent.

22. The State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 continues to apply to the Development Application by operation of s 4.2(1)(a) of the State Environmental Planning Policy (Sustainable Buildings) 2022. The Development Application is supported by BASIX Certificate No. 1757368S_02 dated 27 June 2025. This certificate confirms that the Proposed Development passes the BASIX requirements. The BASIX Certificate satisfies the requirement in s 27 of the Environmental Planning and Assessment Regulation 2021*.*

23. The site has a history of residential use. Accordingly, the Site is not considered to be at risk of any contamination: s 4.6, State Environmental Planning Policy (Resilience and Hazards) 2021.

24. 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. I adopt the reasons given by the parties as set out in this judgment.

25. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notations:

23. The Court notes that Ku-ring-gai Council as the relevant consent authority has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the Development Application Number eDA0316/24 in accordance with the plans and documents listed below:

| Reference/ DWG No | Title/Description | Revision | Prepared by | Date | | Architectural Plans | | DA01 | Cover Page | 15 | Fyffe Design | 27.06.2025 | | DA02 | Schedule of Changes | 15 | Fyffe Design | 27.06.2025 | | DA03 | Compliance Table | 15 | Fyffe Design | 27.06.2025 | | DA04 | Basix Commitments 1 | 15 | Fyffe Design | 27.06.2025 | | DA05 | Basix Commitments 2 | 15 | Fyffe Design | 27.06.2025 | | DA06 | Demolition Plan | 15 | Fyffe Design | 27.06.2025 | | DA07 | Subdivision Plan | 15 | Fyffe Design | 27.06.2025 | | DA08 | Site Plan | 15 | Fyffe Design | 27.06.2025 | | DA09 | Sediment and Erosion Control Plan | 15 | Fyffe Design | 27.06.2025 | | DA10 | Site Calculation | 15 | Fyffe Design | 27.06.2025 | | DA11 | Ground Floor Plan | 15 | Fyffe Design | 27.06.2025 | | DA12 | First Floor Plan | 15 | Fyffe Design | 27.06.2025 | | DA13 | Roof Plan | 15 | Fyffe Design | 27.06.2025 | | DA14 | North Elevation | 15 | Fyffe Design | 27.06.2025 | | DA15 | South Elevation | 15 | Fyffe Design | 27.06.2025 | | DA16 | East Elevation | 15 | Fyffe Design | 27.06.2025 | | DA17 | West Elevation | 15 | Fyffe Design | 27.06.2025 | | DA18 | Section 01 | 15 | Fyffe Design | 27.06.2025 | | DA19 | Section 02 | 15 | Fyffe Design | 27.06.2025 | | DA20 | Windows and Door Schedules | 15 | Fyffe Design | 27.06.2025 | | DA21 | GFA Calculation | 15 | Fyffe Design | 27.06.2025 | | DA22 | Building envelope and height compliance | 15 | Fyffe Design | 27.06.2025 | | DA23 | Shadow Diagrams 1 | 15 | Fyffe Design | 27.06.2025 | | DA24 | Shadow Diagrams 2 | 15 | Fyffe Design | 27.06.2025 | | DA25 | External Finishes | 15 | Fyffe Design | 27.06.2025 | | DA26 | Notification Plan | 15 | Fyffe Design | 27.06.2025 | | Stormwater Plans | | C1 | Cover Sheet and Notes | F | Hydracor Consulting Engineers | 04.02.2025 | | C2 | Overall Post Development Impervious Area Plan | F | Hydracor Consulting Engineers | 04.02.2025 | | C3 | Stormwater Management Plan – Lot 1 | F | Hydracor Consulting Engineers | 04.02.2025 | | C4 | Stormwater Management Plan – Lot 2 | G | Hydracor Consulting Engineers | 04.06.2025 | | C5 | Inset – Site Discharge and Pavement Details | F | Hydracor Consulting Engineers | 04.02.2025 | | C6 | Stormwater Management Details – Sheet No.1 | F | Hydracor Consulting Engineers | 04.02.2025 | | C7 | Stormwater Management Details – Sheet No.2 | F | Hydracor Consulting Engineers | 04.02.2025 | | C8 | Stormwater Management Details – Sheet No.3 | F | Hydracor Consulting Engineers | 04.02.2025 | | C9 | Stormwater Management Details – Sheet No.4 | F | Hydracor Consulting Engineers | 04.02.2025 | | C10 | Driveway arrangement plan and long section | F | Hydracor Consulting Engineers | 04.02.2025 | | Survey | | Sheet 1 of 1 | Plan Showing Detail and Levels over Lot C in DP41004 | 5 | 3Linx | 28.02.2025 | | BASIX | | | | | 1757368S_02 | BASIX Certificate | | Perez Architectural Services | 27.06.2025 | | Reports | | Aboricultural Impact Assessment Report | Jacksons Nature Works | 27.05.2025 | | Pruning Detail for Tree 4 | Jacksons Nature Works | 30.06.2025 |

Orders:

24. The Court orders:

25. The appeal is upheld.

26. Development Application eDA0316/24 for demolition of existing structures, Torrens title subdivision of one lot into two and construction of a new dwelling, front fence and associated landscaping on Lot C in DP410104 being 75 Douglas Street, St Ives is determined by the grant of consent subject to the conditions set out in Annexure A.

E Espinosa

Commissioner of the Court

Annexure A (357 KB, pdf)

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