Scott v Ku-ring-gai Council [2026] NSWLEC 1556

Catchwords: DEVELOPMENT APPLICATION — alterations and additions to dwelling house in C4 Environmental Living zone — conciliation conference — agreement between parties — orders Land and Environment Court New South Wales Medium Neutral Citation: Scott v Ku-ring-gai Council [2026] NSWLEC 1556 Hearing dates: Conciliation conference on 14 August 2026 Date of orders: 28 August 2026 Decision date: 28 August 2026 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application eDA0545/25, as amended, is determined by the grant of consent, subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION — alterations and additions to dwelling house in C4 Environmental Living zone — conciliation conference — agreement between parties — orders Legislation Cited: Biodiversity and Conservation Act 2016 (NSW), ss 6.5, 6.12, 6.15, 7.7, 7.13 Environmental Planning and Assessment Act 1979 (NSW) , ss 4.14, 4.16, 8.7, 10.3 Land and Environment Court Act 1979 (NSW) , s 34 Biodiversity Conservation Regulation 2017 (NSW) , s 6.7 Environmental Planning and Assessment Regulation 2021 (NSW), s 38 Ku-ring-gai Local Environmental Plan 2015 , cll 4.3, 4.4, 4.6, 6.1, 6.2, 6.3, 6.4, 6.5 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4, Ch 6, ss 4.9, 6.6, 6.7, 6.8, 6.9, 6.10 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Texts Cited: NSW Rural Fire Service, Planning for Bush Fire Protection (November 2019) Category: Principal judgment Parties: Danielle Scott (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: S Siv (Solicitor) (Applicant) K Arthur (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Shaw Reynolds (Respondent) File Number(s): 2026/139423 Publication restriction: Nil JUDGMENT COMMISSIONER : This appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) following the refusal by Ku-ring-gai Council of development application eDA0545/25 that seeks consent for construction of a detached car parking and storage structure with a rooftop tennis court to the rear of the existing residential dwelling at 5-7 Lonsdale Avenue Pymble . On 14 August 2026, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), at which I presided. At the conciliation conference, the parties reached in-principle agreement on the matters in contention, subject to an adjournment that would permit the parties to settle the agreed form of conditions of consent. I granted the adjournment. A signed agreement was filed with the Court on 14 August 2026 , in accordance with s 34(10) of the LEC Act. 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 development application. There are jurisdictional prerequisites, with respect to the following environmental planning instruments that are satisfied for the reasons that follow. The site is located within an area designated C4 Environmental Living under the Ku-ring-gai Local Environmental Plan 2015 (Ku-ring-gai LEP), in which development of the kind for which consent is sought is considered ancillary to the existing dwelling and is permitted with consent, where consistent with the objectives of development in the C4 zone, that are: • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. • To ensure development does not result in further fragmentation of ecological communities, biodiversity corridors or other significant vegetation or habitat. • To minimise direct and indirect risks to life, property and the environment from bushfire events. • To ensure that development in this zone on land that adjoins land in Zone C1 National Parks and Nature Reserves or Zone C2 Environmental Conservation is compatible with the objectives of those zones. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. The height standard applicable on the relevant map at cl 4.3(2) of the Ku-ring-gai LEP is 9.5m. A portion of the fence enclosure surrounding the rooftop tennis court exceeds the height standard and the Applicant relies on a written request prepared by Minto Planning Services in accordance with cl 4.6 of the Ku-ring-gai LEP dated 24 June 2026 (Height Request) to justify the contravention. The relevant objective at cl 4.3 of the Ku-ring-gai LEP is: (c) to enable development with a built form that is compatible with the size of the land to be developed. I am satisfied that the Height Request serves to demonstrate that compliance with the standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention for reasons summarised as follows: Firstly , I am satisfied that the objectives of the height standard are achieved notwithstanding the non-compliance , primarily because the built form proposed is compatible with the size of the land to be developed. The site area is 5,047.8m 2 , 60% of which remains landscaped area and where the exceedance equates to 0.97m 2 or 0.167% of the proposed building footprint. Furthermore, the exceedance is itself a section of black powder-coated open - weave fencing that does not , by virtue of the height exceedance, impose any unreasonable arboricultural or ecological impact, or impact whatsoever on the streetscape. Next I am also satisfied , for virtually identical reasons as those summarised above, that the grounds advanced in the Height Request are environmental planning grounds sufficient to justify the contravention. In particular, I accept that the steep slope of the site ’ s topography is a reason for the non-compliance to what equates to 30% of the p erimeter of the development, and where the exceedance is by a virtually transparent component that is largely imperceptible from surrounding properties. The floor space standard applicable to the site on the relevant map at cl 4.4(2 D ) of the Ku-ring-gai LEP is derived by a formula that is 0.1995:1 . The proposed development results in a floor space ratio (FSR) of 0.2682:1 and the Applicant relies on a written request prepared by Minto Planning Services in accordance with cl 4.6 of the Ku-ring-gai LEP dated 24 June 2026 ( FSR Request) to justify the contravention. The relevant objectives of cl 4. 4 of the Ku-ring-gai LEP are as follows: (a) 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, (b) to provide for floor space ratios compatible with a range of uses, I am satisfied that the FSR Request serves to demonstrate that compliance with the standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention for reasons summarised as follows: First, the proposal complies with setback requirements and does not impose unreasonable impacts on the amenity of adjoining properties so that it is compatible with its context. It is also compatible with the relevant e nvironmental constraints by virtue of the proposed stormwater drainage and any significant arboricultural or ecological impacts that are not otherwise mitigated for the reasons set out in the Biodiversity Development Assessment Report (BDAR) authored by McIvor Environmental dated 12 July 2026 , or impacts on the streetscape or character of the area. Next I am also satisfied, for virtually identical reasons as those summarised above, that the grounds advanced in the FSR Request are environmental planning grounds sufficient to justify the contravention. In particular, I accept that the FSR is located within a void space under a tennis court that would otherwise be open space and without need for excavation The site is within an area designated on the relevant map at cl 6.1(2) to be classified Class 5 acid sulfate soil . However, t he s ite is not within 500m of land comprising another class and does not require excavation that would lower the water table below 1m AHD. The development proposes excavation and retaining walls. A Geotechnical Investigation report prepared by White Geotechnical Group dated 13 July 2026 (Geotechnical Report) c onsiders drainage patterns and groundwater , soil stability , excavation support and foundations following an auger and dynamic cone penetrometer tests on the site to a depth of 0.4m where rock was encountered . On the basis of the Geotechnical Report, the Stormwater Plans prepared by Engineering Studio dated 8 July 2026 (Stormwater Plans) and the Landscape Plans prepared by Rolling Stone Landscapes , I am satisfied those matters at cl 6.2(3) of the Ku-ring-gai LEP in respect of earthworks are satisfactorily addressed. The land is designated ‘ Biodiversity ’ on the relevant map at cl 6.3(2) of the Ku-ring-gai LEP . The BDAR calculates the biodiversity credit obligations, including the retirement of credits for the removal of trees and the potential impact on identified fauna species. A Vegetation Management Plan also authored by McIvor Environmental (VMP) sets out monitoring and management of retained native vegetation . On the basis of the BDAR and VMP , I am satisfied that the development is consistent with the objectives of the provision at cl 6.5 of the Ku-ring-gai LEP, and that measures have been considered to maintain native vegetation that will provide adequate biodiversity protection, avoid clearing steep slopes so that no net loss of significant vegetation or habitat is likely to result, pursuant to cl 6. 3 (4) of the Ku-ring-gai LEP. The site also adjoins riparian land, identified on the relevant map at cl 6.4(2) of the Ku-ring-gai LEP with the designation ‘ Riparian Land Category 2 ’ due to the proximity to Avondale Creek. I have considered those matters at cl 6.4(3) of the Ku-ring-gai LEP and note the Stormwater Plans denote the extent of onsite detention of around 27,000L of stormwater , a 5,000L rainwater tank and location of a 10m spreader tha t I am satisfied demonstrates the integration of stormwater measures that, when read with the provisions of the VMP at [ 15 ], satisfy me that the objectives of cl 6.4(1) are achieved and that the development is designed, sited and will be managed to avoid any potential adverse environmental impacts. Relatedly, for the reasons set out at [ 15 ]-[ 16 ] above, I am also satisfied that water sensitive urban design principles such as stormwater detention and retention of water are incorporated in to the design of the development ; that stormwater measures are integrated and that the proposed stormwater management system is designed to avoid adverse impacts on native bushland, waterways and groundwater systems, being matters about which the Court must be satisfied at cl 6.5( 2) of the Ku-ring-gai LEP. State Environmental Planning Policy (Biodiversity and Conservation) 2021 Additionally in respect of water management, it is relevant to note that t he site falls steeply from the frontage to Lonsdale Street to the rear in proximity to Avondale Creek that is located within the Sydney Harbour Catchment area. As such, Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies. In respect of s 6.6 of the Biodiversity SEPP, I have considered those matters at s 6.6(1), and I am satisfied that the stormwater drainage system will firstly result in the quality of water entering Sydney harbour catchment being as close as possible to neutral or beneficial because of first flush device s fitted to the 5,000L rainwater tank and gross pollutant mesh located in both the discharge control pit and pit associated with the level spreader, and that the onsite detention of stormwater will reduce the discharge from the site notwithstanding the increase in impervious area as a result of the development , as evidenced by the design calculations for permissible discharge on Stormwater dwg No. C0.201 . For similar reasons I have also considered those matters at ss 6.7 and 6.8 of the Biodiversity SEPP and I am satisfied there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and no adverse impact on aquatic reserves, or in terms of erosion, or flooding. In particular, I note the level spreader should ensure stormwater entering the watercourse is designed, sited and managed to minimise adverse impacts on the waterbody. Neither will the proposed development have an impact on recreational land uses or access to public land , in terms set out in s 6.9 of the Biodiversity SEPP. Accordingly, I also accept and am satisfied that consult ing with each of the adjacent or downstream local government area s is not required in accordance with s 6.10 of the Biodiversity SEPP. I note here that the provisions at Ch 4 of the Biodiversity SEPP in respect of Koala habitat protection do not apply in the circumstances of this case because the site is less than 1 hectare in size, and because the Council has not adopted a k oala plan of m anagement applying to the land and so does not meet the test for application at s 4.9(1) of the Biodiversity SEPP. Biodiversity and Conservation Act 2016 (NSW) The parties agree that the site is identified on the relevant map to have Biodiversity values such that the BDAR cited at [ 9(1) ] is required in accordance with s 7.7 of the Biodiversity and Conservation Act 2016 (NSW) ( BC Act ). The BDAR satisfies the requirements at s 6.15 of the BC Act and contains an assessment in accordance with the biodiversity assessment method in terms required by s 6.12 of the BC Act , including the number and class of biodiversity credits required to be retired to offset the residual impacts on Sydney Turpentine Ironbark Forest and the potential impact on the Large-Eared Pied Bat by the removal of four trees identified in the Arboricultural Impact Assessment Report prepared by Urban Arbor dated 10 July 2026. The retirement of the biodiversity credits is incorporated into agree d conditions of consent in accordance with s 7.13(5) of the BC Act. The BDAR includes assessment of the steps taken to minimise or mitigate the Serious and Irreversible Impacts at Annexure E in accordance with s 6.5 of the BC Act and the relevant principles at s 6.7 of the Biodiversity Conservation Regulation 2017 (NSW) , concluding the development is not likely to directly impact identified species or habitat. On the basis of the above, I have considered the likely impact of the proposed development on biodiversity values as assessed in the BDAR , in accordance with s 7.13(2) of the BC Act and I am satisfied that the agreed conditions of consent are consistent with the requirements of s 7.13(3) of the BC Act. Bushfire prone land The site is identified as bushfire prone land in accordance with s 10.3 of the EPA Act . As such, the document prepared by NSW Rural Fire Service, ‘ Planning for Bush Fire Protection ’ must be considered, pursuant to s 4.14 of the EPA Act. On the basis of the following documents, I am satisfied the Council has considered Planning for Bush Fire Protection: Defendable Area Statement prepared by Bushfire Planning Services dated 22 June 2026 ; Landscape Plan Compliance Statement prepared by Bushfire Planning Services dated 22 June 2026 ; Supplementary Bushfire Letter prepared by Bushfire Planning Services Pty Ltd dated 10 July 2026 ; and Bushfire Compliance Report prepared by Bushfire Planning Services dated 4 July 2026. State Environmental Planning Policy (Resilience and Hazards) 2021 I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 . On the basis of the statement made in the Statement of Environmental Effects, and the agreed position of the parties stated in the jurisdictional statement prepared to assist the Court, I am satisfied the site is suitable for the purpose for which development is proposed to be carried out. Conclusion 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. 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. The Court notes that : Ku-ring-gai Council, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 the Applicant ’ s application to amend Development Application eDA0545/25 in accordance with the documents listed below. Amended Landscape Plans Plan name Drawing ref Revision Date Prepared by Cover Page & Design Intent D.A.7-1 - 7.07.2026 Rolling Stone Landscapes Site Plan for DA D.A.7-2 - 7.07.2026 Rolling Stone Landscapes Site Analysis for DA D.A.7-3 - 7.07.2026 Rolling Stone Landscapes Landscape Plan – Level 1 for DA D.A.7-4 - 7.07.2026 Rolling Stone Landscapes Landscape Plan – Level 0 for DA D.A.7-5 - 7.07.2026 Rolling Stone Landscapes Planting Plan for DA D.A.7-6 - 7.07.2026 Rolling Stone Landscapes Sections / Elevations for DA D.A.7-7 - 7.07.2026 Rolling Stone Landscapes Sections / Elevations for DA D.A.7-8 - 7.07.2026 Rolling Stone Landscapes Sections / Elevations for DA D.A.7-9 - 7.07.2026 Rolling Stone Landscapes Building Height Plan for DA M.H.2-1 - 18.06.2026 Rolling Stone Landscapes Floor Space Ratio for DA FSR.3-1 - 7.07.2026 Rolling Stone Landscapes Shadow Plan for DA S.H.3-1 - 7.07.2026 Rolling Stone Landscapes Shadow Plan with Vegetation for DA S.H.3-2 - 7.07.2026 Rolling Stone Landscapes Construction Environmental Management Plan for DA CEMP.1-1 - 7.07.2026 Rolling Stone Landscapes Demolition Plan for DA DEMO.1-1 - 7.07.2026 Rolling Stone Landscapes 3D Presentation for DA 3D.3-1 - 7.07.2026 Rolling Stone Landscapes Schedule of Materials - - 7.07.2026 Rolling Stone Landscapes Amended Stormwater Plans Plan name Drawing ref Revision Date Prepared by General Notes C00.01 J 8.07.2026 Engineering Studio Sediment & Erosion Control Plan C01.01 J 8.07.2026 Engineering Studio Stormwater Drainage Plan C02.01 J 8.07.2026 Engineering Studio Stormwater Drainage Plan 2 C02.02 J 8.07.2026 Engineering Studio Ground Stormwater Details C02.03 J 8.07.2026 Engineering Studio Pre-Post Development Areas C02.04 J 8.07.2026 Engineering Studio Civil Plans Plan name Drawing ref Revision Date Prepared by General Notes C10.01 B 13.07.2026 Engineering Studio Driveway Layout Plan C11.01 B 13.07.2026 Engineering Studio Driveway Longitudinal Section 1 C11.02 B 13.07.2026 Engineering Studio Driveway Longitudinal Section 2 C11.03 B 13.07.2026 Engineering Studio Amended Documents Document name Ref Revision Date Prepared by Schedule of Changes - - 13.07.2026 Rolling Stone Landscapes Amended Arboricultural Impact Assessment Report 260710_5-7 Lonsdale_AIA 6 10.07.2026 Urban Arbor Defendable Space Justification Statement - - 22.06.2026 Bush Fire Planning Services Pty Limited Landscape Plan Compliance Statement - - 22.06.2026 Bush Fire Planning Services Pty Limited Landscape Plan Compliance Assessment – Supplementary Letter (Revised Plans) - - 10.07.2026 Bush Fire Planning Services Pty Limited Amended Biodiversity Development Assessment Report - D 12.07.2026 McIvor Environmental Amended Vegetation Management Plan - E 12.07.2026 McIvor Environmental Amended Clause 4.6 for Height - - 24.06.2026 Minto Planning Services Amended Clause 4.6 for Floor Space Ratio - - 10.07.2026 Minto Planning Services Addendum to the Statement of Environmental Effects MPS Ref: 17/2025 - 10.07.2026 Minto Planning Services Geotechnical Statement in response to clause 6.2 of the LEP J5669E - 13.07.2026 White Geotechnical Group Engineering Response to Statement of Facts and Contentions 240705-001-l - 19.06.2026 Engineering Studio Statement to Address Stormwater Provisions in the State Environmental Planning Policy (Biodiversity and Conservation) 2021 and Ku-ring-gai Local Environmental Plan 2015 240705-003-I - 15.07.2026 Engineering Studio Compliance Certificate – Design Ref.: 240705-002-ccd - 14.07.2026 Engineering Studio Letter from RFS - 3.11.25 RFS Stormwater Letter in relation to 6.6 and 6.7 of the Biodiversity SEPP and 6.5 of the LEP 240705-004-l - 14.08.2026 Engineering Studio Ecological Letter in relation to section 6.7(2)(a), State Environmental Planning Policy (Biodiversity and Conservation) 2021. - - 14.08.2026 McIvor Environmental The Applicant filed the amended plans and other documents listed above with the Court on 3 August and 14 August 2026. Orders The Court orders that: The appeal is upheld. Development Application eDA0545/25, as amended, is determined by the grant of consent, subject to the conditions set out in Annexure A . T Horton Commissioner of the Court ********** Annexure A (416 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: 28 August 2026