Zhao v Ku-ring-gai Council

Category: Principal judgment

Parties: Wen Jing Zhao (First Applicant)
Mark Zhang (Second Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
R Bonic (Solicitor) (Applicant)
C Shaw (Solicitor) (Respondent)
Solicitors:
Hall and Wilcox (Applicants)
Shaw Reynolds (Respondent)

File Number(s): 2024/00320410

Publication restriction: Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the refusal of Development Application No. eDA0114/24 by Ku-ring-gai Council on 23 August 2024. This appeal concerns a development application for construction of a tennis court including associated fencing, stormwater and landscaping works, in conjunction with the Complying Development Certificate Number FB2023-/00254 at 70 Warrangi Street, Turramurra NSW 2074 (as Lot 1 of DP 1271384).

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 February 2025. I presided over the conciliation conference. Over the course of the conciliation conference, the parties came to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. The terms of the agreement between the parties involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. As part of this agreement the Council agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application. These amendments included Amended Architectural Plans prepared by Fyffe Design and an updated Landscaping Plan prepared by iScape Landscape Architecture.

6. 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.

Jurisdiction

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application, however there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites they saw as of relevance in these proceedings and explained how they have been satisfied. Mindful of this advice I make the following findings in relation to jurisdiction.

8. I accept the parties’ advice that Ku-ring-gai Local Environmental Plan 2015 (KLEP) applies to the site and that the proposed development is permissible with consent under cl 2.3.

9. The site is within the R2 Low Density Residential zone and is not listed as a heritage item or in a Heritage Conservation Area. The proposal is permissible under the applicable zonings.

10. The site currently contains a single storey brick dwelling with tiled roof. An inground swimming pool is located to the rear of the dwelling. The existing dwelling and swimming pool are to be demolished as part of an already approved Complying Development Certificate FB2023-/00254 which was issued on 8 December 2023.

Owner’s consent

11. Pursuant to s 23 of the Environmental Planning and Assessment Regulations 2021, owner’s consent has been provided and included in the Class 1 Application filed on 29 August 2024.

Ku-ring-gai Local Environmental Plan 2015 (KLEP)

12. I am satisfied the development complies with the KLEP as outlined in the joint expert report of Mr Andrew Minto for the Applicant and Ms Asmaa Rabiee for the Respondent submitted on 18 November 2024.

13. Clause 2.3 of the KLEP requires me to have regard to the objectives of the R2 Low Density Residential Zone. The objectives are provided for in the Land Use Table as:

• 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.

14. I am satisfied with the advice of the parties and the joint expert report of Mr Andrew Minto for the Applicant and Ms Asmaa Rabiee for the Respondent submitted on 18 November 2024 to the extent that the zone objectives are relevant, the Proposed Development is consistent with them.

Demolition

15. Clause 2.7 of the KLEP permits demolition with development consent but requires further consideration under cl 5.10. I am satisfied with the advice of the parties and the agreed conditions of consent that demolition has been considered.

Earthworks

16. Clause 6.2(3) of the KLEP requires earthworks to be considered. I am satisfied with the advice of the parties and the agreed conditions of consent that matters under cl 6.2 have been considered.

Stormwater and water sensitive urban design

17. Clause 6.5 of the KLEP require the Development Application to be accompanied by a Stormwater Management Plan that addresses those matters at clause 6.5(2). I am satisfied with the advice of the parties and the agreed conditions of consent (including an assurance that the minimum volume of the above-ground detention tank will be 23.6m3) and that the matters at cl 6.5(2) of the KLEP 2015 have been satisfied.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX 2004)

18. Section 27 of the EPA Regulations alongside the operation of the SEPP BASIX 2004 requires the submission of a BASIX certificate in relation to the proposed development. I am satisfied that the amended BASIX Certificate was provided.

Remaining matters in section 4.15(1) of the EPA Act

19. I am satisfied with the advice of the parties and the agreed conditions of consent that the Development Application, as amended, can be approved taking into consideration the matters in section 4.15(b) – (e) of the EPA Act.

20. I am satisfied with the advice of the parties that the Development Application, as amended, and the conditions of consent are in the public interest.

State Environmental Planning Policy (Resilience and Hazards) 2021

21. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the land is contaminated, and if the land is contaminated ensure that they are satisfied that the land is suitable in its contaminated state for the purposes for which the development is proposed to be conducted. Based on the parties’ submissions regarding previous residential use of the land, I accept that the subject site is suitable for the intended use, subject to the implementation of the relevant conditions of consent.

22. I note and accept the parties’ advice that the Development Application was notified in accordance with the Ku-ring-gai Community Participation Plan. No submissions objecting to the proposal were received.

Conclusion

23. Having reached the state of satisfaction that the decision is one that the Court could make in the proper exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders I make below have this effect.

24. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Notes

25. The Court notes that:

26. The Ku-ring-gai Council, as the relevant consent authority, has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application eDA0114/24 to rely upon the plans and documents in Condition 1 of Annexure A.

27. The Applicant filed the amended development application with the Court on 22 January 2025.

Orders

26. The Court orders that:

27. The appeal is upheld.

28. Development Application eDA0114/24, for the construction of a tennis court including associated fencing, stormwater and landscaping works in conjunction with the Complying Development Certificate Number FB2023-/00254 at 70 Warrangi Street, Turramurra NSW 2074 (as Lot 1 of DP 1271384) is determined by the grant of development consent subject to the conditions included at Annexure A.

……………………….

P Nichols

Acting Commissioner of the Court

Annexure A

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Amendments

28 April 2025

Application pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”) seeks to strike out and delete Order 3 made on 02 April 2025.