Land and Environment Court New South Wales Medium Neutral Citation: Ma v Ku-ring-gai Council [2021] NSWLEC 1742 Hearing dates: Conciliation conference on 30 November 2021 Date of orders: 17 December 2021 Decision date: 17 December 2021 Jurisdiction: Class 1 Before: Dixon SC Decision: See [7] for final orders. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979, ss 4.16, 4.55 Ku-ring-gai Local Environmental Plan 2015, cll 6.3, 6.4 Land and Environment Court Act 1979, ss 34, 34AA Texts Cited: Ku-ring-gai Development Control Plan Category: Principal judgment Parties: Vanessa Ma (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: T To (Applicant) C Rose (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2021/227741 Publication restriction: Nil Judgment 1. This appeal concerns an application (MOD0051/21) for the modification of development consent DA0557/18 which approved the construction of a new dwelling at 14 Golf Links Road, Killara (the site). 2. The modifications relate to internal and external changes to the built form and landscaping as detailed in the Vegetation Management Plan dated 15 November 2021. The VMP is necessary because the site, although zoned R2 Low Density Residential under Ku-ring-gai Local Environmental Plan 2015 (KLEP) is mapped Terrestrial Biodiversity under cl 6.3 of KLEP. The vegetation within the mapped area is representative of Sydney Turpentine Ironbark Forest, a critically endangered ecological community under the Biodiversity Conversation Act 2016. 3. The site is also mapped Support for Core Biodiversity and Buffer Corridor for Biodiversity under Part 18 of Ku-ring-gai Development Control Plan (KDCP) and the northern edge of the site is mapped Riparian Land Category 3 under cl 6.4 of KLEP and within the mapped area is the bed and bank of a Category 3 watercourse. The northern edge of the site is also mapped Category 3 – Bed and Bank Stability under Part 17 of KDCP. 4. On 30 November 2021, the Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided over the conciliation conference. During the conference, the parties reached agreement as to the terms of a decision that would be acceptable to them, being a decision the Court could have made in the proper exercise of its functions, within the meaning of s 34(3) of the LEC Act. exercise of its functions, within the meaning of s 34(3) of the LEC Act In this case, the parties' decision involves the Court exercising the function under s 4.55 of the EPA Act to grant consent to the modification application on a conditional basis. 5. Before this function can be exercised, there are jurisdictional prerequisites that must be satisfied. 6. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional note filed with the s34 agreement supported by the documents and plans contained in an accompanying folder which I have marked Exhibit A. I note the application MOD0051/21 was notified to surrounding occupants for 14 days from 25 March 2021. No submissions were received. 7. As I am satisfied on the evidence that the application is within power, I make the following orders: 1. The appeal is upheld. 2. Development Consent No. DA0557/18 is modified in the terms in Annexure A. 3. Development Consent No. DA0557/18 as modified by the Court is Annexure B. ………………………. S Dixon Senior Commissioner of the Court Annexure A (180415, pdf) Annexure B (333382, 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: 17 December 2021