AHG Homebush Pty Ltd v Ku-ring-gai Council [2026] NSWLEC 1248

Catchwords: DEVELOPMENT APPLICATION — residential apartment building development — in-fill affordable housing — cl 4.6 written request — height of buildings — floor space ratio — agreement between the parties — orders Land and Environment Court New South Wales Medium Neutral Citation: AHG Homebush Pty Ltd v Ku-ring-gai Council [2026] NSWLEC 1248 Hearing dates: Conciliation conference held 15 December 2025, 20 February, 27 March and 13 April 2026 Date of orders: 07 May 2026 Decision date: 07 May 2026 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application eDA0170/25 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent ’ s costs thrown away as a result of amending the Development Application as agreed or assessed . (3) The appeal is upheld. (4) Consent is granted to Development Application eDA0170/25 (as amended) for the demolition of existing structures and construction of a residential apartment building consisting of 34 apartments, including eight affordable housing apartments, over seven storeys with basement parking at 130 Killeaton Street, St Ives, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION — residential apartment building development — in-fill affordable housing — cl 4.6 written request — height of buildings — floor space ratio — agreement between the parties — orders Legislation Cited: Biodiversity Conservation Act 2016 (NSW), ss 6.3A, 6.5, 7.2, 7.7, 7.13 Environmental Planning and Assessment Act 1979 (NSW), ss 4. 15 , 4.16, 8.7, 8.15 Land and Environment Court Act 1979 (NSW), s 34 Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 29, 37, 38 State Environmental Planning Policy (Housing) 2021 Chs 2, 4, Pt 2, Div 1, ss 15 C, 16, 19, 20, 21, 147, Sch 9 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1 Ku-ring-gai Local Environmental Plan 2015, cll 2.1, 2.3, 2.7, 4.3, 4.4, 4.6, 6.1, 6.2, 6.5, 6.6 Texts Cited: NSW Department of Planning and Environment , Apartment Design Guide ( July 2015) Ku-ring-gai Council, Ku-ring-gai Community Participation Plan (2025) Category: Principal judgment Parties: AHG Homebush Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: J Reid (Applicant) N Ferguson (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2025/274459 Publication restriction: Nil JUDGMENT COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by AHG Homebush Pty Ltd (the Applicant), against the deemed refusal of Development Application eDA0170/25 (the DA) by Ku-ring-gai Council (the Respondent). At the date of its lodgement on 11 April 2025, the DA sought consent for the demolition of existing structures and construction of a residential apartment building comprising 37 apartments, including eight affordable housing apartments, over seven storeys with basement parking, at 130 Killeaton Street, St Ives (the site). The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 15 December 2025, and 20 February, 27 March and 13 April 2026. I presided over the conciliation conference. During the conciliation conference, the parties reached agreement to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions raised by the Respondent. These contentions included issues of exceedance of the relevant height of building and floor space ratio (FSR) controls, inadequate side setbacks and excessive building bulk, inconsistency with the existing and desired future character, a failure to provide a required Biodiversity Development Assessment Report (BDAR), unacceptable impacts on remnant landscapes, unacceptable tree removal, insufficient deep soil provision, inappropriate vehicular access configuration, unacceptable privacy impacts upon neighbouring properties, and the provision of insufficient information to complete assessment, amongst other contentions. Agreed design amendments have now been made to improve the proposed building’s relationship with the site and its context. Changes have been made to improve tree retention outcomes on the site. A series of more minor changes have been made to the architectural plans to eliminate off-site privacy impacts and to improve amenity within the proposal. Additional information, including an amended BDAR, has been provided to the satisfaction of the Respondent. These amendments and additional information, working with agreed conditions of consent, have the effect of resolving each of the Respondent’s contentions. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. The DA was publicly notified in accordance with the Respondent’s Community Participation Plan between 24 April and 20 May 2025. A total of fifty-five submissions were received by the Respondent raising concerns including, in summary: Exceedance of the maximum building height control. Exceedance of the maximum FSR control. Unacceptable impacts on the streetscape and local character. Overdevelopment of the site. Excessive distance from public transport services. Resultant increased burden on local infrastructure. Traffic and parking impacts. View affectation. Overshadowing impacts. Excessive bulk and associated impacts. Acoustic privacy and cross viewing. Impact to significant native trees, including impacts to Blue Gum High Forest and Sydney Turpentine-Ironbark Forest. Biodiversity impacts, including impacts to identified species of flying-fox. The parties agree that the amended DA addresses and mitigates against a range of concerns raised by objectors, primarily by resolving privacy impacts, improving the tree retention outcomes, and through the provision of additional information in the form of an amended BDAR. The parties agree, and I am satisfied, that the amended DA and agreed conditions of consent have satisfactorily considered the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed. The parties agree, and I am satisfied, that the Ku-ring-gai Local Environmental Plan 2015 (KLEP) is the relevant local environmental planning instrument. Pursuant to cl 2.1 of the KLEP - Land use zones - the site is zoned R4 High Density Residential. The amended DA - characterised as residential apartment development - is permissible with consent within the R4 zone. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the KLEP - Zone objectives and Land Use Table - the amended DA is consistent with the R4 High Density Residential zone objectives, which relevantly include - to provide for the housing needs of the community within a high density residential environment; to provide a variety of housing types within a high density residential environment; and to provide for high density residential housing close to public transport, services and employment opportunities. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the KLEP - Demolition requires development consent - the amended DA proposes demolition of the existing structures occupying the site. Height of Buildings Pursuant to cl 4.3 of the KLEP - Height of buildings - the site benefits from a development standard for building height of 17.5m. However, certain provisions set out within Ch 2 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing), dealing with affordable housing, make up to an additional 30% building height available in exchange for the provision of at least 15% of the proposed gross floor area (GFA) as in-fill affordable housing. The amended DA seeks to rely upon 30% additional building height - an amount determined by the quantum of total GFA proposed as in-fill affordable housing - taking the resultant building height development standard to 22.75m. The amended DA proposes a maximum height of building of 23.787m, which exceeds the development standard by 1.037m or approximately 4.6%. Clause 4.6(3) of the KLEP requires the consent authority (the Court in this instance) to be satisfied the Applicant has demonstrated that compliance with the relevant development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. Accordingly, the Applicant has provided a written document seeking to vary the relevant development standard for height of building, prepared by Boston Blyth Fleming Town Planners and dated 17 March 2026. The parties agree, and I am satisfied, that the written document adequately justifies the proposed variance to the height of buildings development standard for the following reasons: The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality. The amended DA generally presents to Killeaton Street as a seven-storey residential apartment building with the upper three floors differentiated and set back from the primary street frontage, which is agreed to be compatible with nearby development. The area and extent of the building height exceedance is relatively minor and is generally associated with the building core and lift overrun, which is centrally located within the site and has been consolidated and oriented to minimise its visibility from public vantage points . The proposed height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties. The parties agree, and I am satisfied that, the amended DA is consistent with the relevant objectives of the KLEP R4 High Density Residential land use zone. The parties agree, and I am satisfied that, the amended DA is consistent with the relevant objectives of cl 4.3 of the KLEP - Height of buildings, which include - to ensure that the height of buildings is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai centres ; to establish a transition in scale between the centres and the adjoining lower density residential and open space zones to protect local amenity; and to enable development with a built form that is compatible with the size of the land to be developed. Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the relevant height of building development standard, and I find to uphold the written request. Floor Space Ratio Pursuant to cl 4.4 of the KLEP - FSR - the site benefits from a development standard for FSR of 1.3:1. Again, certain provisions set out within Ch 2 of SEPP Housing, make up to an additional 30% FSR available in exchange for the provision of a minimum 15% of the resultant GFA as in-fill affordable housing for a period of fifteen years. The amended DA seeks to rely upon this 30% additional FSR, taking the resultant maximum FSR development standard to 1.69:1, equivalent to approximately 4,737sqm of GFA. The amended DA seeks consent for a total FSR of 1.77:1, equivalent to 4,961.5sqm of GFA and representing an exceedance of the development standard of 224.43sqm, or approximately 4.7%. Clause 4.6(3) of the KLEP requires the Court to be satisfied the Applicant has demonstrated that compliance with the relevant development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. Accordingly, the Applicant has provided a written document seeking to vary the FSR development standard, prepared by Boston Blyth Fleming Town Planners and dated 17 March 2026. The parties agree, and I am satisfied, that this written document adequately justifies the proposed variance to the FSR development standard for the following reasons: The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape and anticipated future character of the immediate locality. The amended DA seeks to access FSR bonuses available within Ch 2 of SEPP Housing in exchange for the provision of in-fill affordable housing for a period of fifteen years consistent with the policy objectives of SEPP Housing. The amended DA generally presents to the surrounding street frontages as a seven-storey residential apartment building, with its three uppermost floors set back from the street and differentiated from the typical floors below. A component of the FSR exceedance (approximately 615sqm) is attributable to 29 car parking spaces situated below grade in basement structures where this GFA does not contribute to perceptible building form or bulk. The amended DA does not give rise to unreasonable adverse overshadowing impacts or cross viewing with neighbouring properties. The parties agree, and I am satisfied that, the amended DA is consistent with the relevant objectives of the KLEP R4 High Density Residential land use zone. The parties agree, and I am satisfied that, the amended DA is consistent with the relevant objectives of cl 4.4 of the KLEP - FSR, which include - to enable development with a built form and density that is compatible with the size of the land to be developed, its environmental constraints and its contextual relationship; to provide for floor space ratios compatible with a range of uses; to ensure that development density is appropriate for the scale of the different centres within Ku-ring-gai; and to ensure that development density provides a balanced mix of uses in buildings in the employment and mixed use zones. Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the FSR development standard, and I find to uphold the written request. The parties agree, and I am satisfied, that all remaining principal development standards of the KLEP have been met by the amended DA. The parties agree, and I am satisfied, that pursuant to cl 6.1 - Acid sulfate soils - of the KLEP, the site is mapped as Class 5 on the Acid Sulfate Soils Map, however the proposal does not involve works within 500 metres of any adjacent Class 1, 2, 3 or 4 land, and therefore no acid sulfate soils management plan is required. The parties agree, and I am satisfied, that pursuant to cl 6.2 - Earthworks - of the KLEP, the amended DA will not have ‘a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.’ The Applicant has provided a Geotechnical Investigation Report, prepared by EI Australia and dated 28 January 2025, which is agreed to satisfactorily consider the matters set out in cl 6.2(3). Agreed conditions of consent are imposed to regulate excavation and construction phase works. The parties agree, and I am satisfied, that pursuant to cl 6.5 of the KLEP - Stormwater and water sensitive urban design - the Applicant has provided amended stormwater management plans prepared by SGC Consultants dated 4 February 2026. The amended DA is agreed to satisfactorily address those matters set out at cl 6.5(2) and the proposal is designed to avoid or minimise the adverse impacts of urban stormwater on the site, adjoining properties, native bushland, waterways and groundwater systems. The parties agree, and I am satisfied, that pursuant to cl 6.6 of the KLEP - Requirements for multi dwelling housing and residential flat buildings - the site has the required minimum area of at least 1,200sqm and minimum dimension of at least 30m. The parties agree, and I am satisfied, that the Biodiversity Conservation Act 2016 (NSW) (BC Act) is a matter for consideration in the assessment of the amended DA. Accordingly, the Applicant has provided a BDAR, prepared by SLR and dated 13 March 2026 as required by s 7.7 of the BC Act. It is agreed that the site is not mapped on the NSW Biodiversity Values Map. The amended DA proposes to clear 0.13 Ha of native vegetation, which is below the threshold that would otherwise trigger the Biodiversity Offsets Scheme (at 0.25 Ha). The BDAR concludes that, for the purposes of s 7.2 of the BC Act, the amended DA is agreed likely to significantly affect the Threatened Ecological Community (TEC) Sydney Turpentine-Ironbark Forest in the Sydney Basin Bioregion, which is listed as a Critically Endangered Ecological Community (CEEC). The BDAR assumed the presence of the Large Eared Pied Bat. The BDAR sets out the efforts to avoid and minimise impacts, consistent with s 6.3A of the BC Act. The BDAR confirms that the TEC is an entity at risk of serious and irreversible harm and undertakes an assessment pursuant to s 6.5 of the BC Act to determine that the impacts of the amended DA will not have a serious and irreversible impact on biodiversity values. Pursuant to s 7.13(2) and (3) of the BC Act, the BDAR h as been taken into consideration and agreed conditions of consent are imposed to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the BDAR. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. Chapter 4 of SEPP Resilience deals with remediation of land. Pursuant to s 4.6 of SEPP Resilience, the Applicant has provided a Preliminary Site Investigation prepared by EI Australia and dated 28 January 2025. The parties agree, and I am satisfied, that the long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated, and that the proposed use of the land is to remain residential in nature. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). Consistent with s 2.1 of SEPP Sustainable Buildings and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg), a BASIX certificate, No 1788973M_03, dated 7 April 2026, has been provided with the amended DA. Pursuant to s 2.1(5), the BASIX certificate quantifies embodied emissions attributable to the development. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate. The parties agree, and I am satisfied, that SEPP Housing is an additional relevant environmental planning instrument. Chapter 2 of SEPP Housing deals with Affordable Housing, and the amended DA is subject to the relevant provisions for in-fill affordable housing set out at Pt 2, Div 1. Pursuant to s 15C of SEPP Housing, I am satisfied that development for the purposes of residential apartment buildings is permitted with consent in the R4 High Density Residential Zone pursuant to the KLEP, and all of the proposed development is located within a defined ‘accessible area’. Pursuant to s 16(1) of SEPP Housing, the relevant FSR development standard is calculated by adding the base FSR for the land (1.3:1 pursuant to the KLEP) to an additional FSR of 30%, based on the proposed affordable housing component. For the subject site and amended DA, this equates to a total incentive FSR of 1.69:1. Consistent with s 16(2) of SEPP Housing, the amended DA allocates 718.6sqm of GFA as the in-fill affordable housing component, in the form of eight apartments, which is equivalent to 15.2% of the maximum FSR. Section 19(2) of SEPP Housing provides a number of relevant non-discretionary development standards. The amended DA complies with all relevant non-discretionary development standards. Section 20 of SEPP Housing sets out certain design requirements. The parties agree, and I am satisfied, that the amended DA is compatible with the desired character of the local area, noting that the operation of SEPP Housing means that the local area is a precinct undergoing transition. Section 21(1)(a) of SEPP Housing requires that, commencing at occupation certificate, the development will provide the in-fill affordable housing component for a period of 15 years. Further, s 21(1)(b) requires the consent authority (the Court in this instance) to be satisfied that the affordable housing component will be managed by a registered Community Housing Provider (CHP). Accordingly, agreed conditions of consent are imposed requiring these details to be confirmed prior to issuance of an occupation certificate. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of Ch 4 of SEPP Housing. Pursuant to the relevant provisions of SEPP Housing, the EPA Reg, the Applicant's architect, PBD Architects (and its nominated architect Mr Paul Buljevic - NSW registered architect 7768) has prepared a Design Verification Statement, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design principles set out in Sch 9 of SEPP Housing. This statement also sets out how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved in the design of the amended DA. Accordingly, I am satisfied the amended DA meets the requirements of s 147 of SEPP Housing. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. The Court notes that: Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant has amended the DA with the approval of the Respondent. The Applicant has lodged the final amended DA with the Court on 13 April 2026. Orders The Court orders that: Leave is granted to the Applicant to amend Development Application eDA0170/25 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application as agreed or assessed. The appeal is upheld. Consent is granted to Development Application eDA0170/25 (as amended) for the demolition of existing structures and construction of a residential apartment building consisting of 34 apartments, including eight affordable housing apartments, over seven storeys with basement parking at 130 Killeaton Street, St Ives, subject to the conditions of consent at Annexure A. M Pullinger Acting Commissioner of the Court ********** Annexure A (422 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2026