Scott v Ku-ring-gai Council — Court approves rooftop tennis-court development after conciliation

Case
Scott v Ku-ring-gai Council
Court
Land and Environment Court of New South Wales (Australia)
Judge
Horton C (of New South Wales, 2018)
Date Decided
28 August 2026
Citation
[2026] NSWLEC 1556
Topics
planning appeals, development consent, biodiversity, bushfire

Background

Danielle Scott appealed Ku-ring-gai Council’s refusal of Development Application eDA0545/25. The application concerned a detached parking and storage structure, topped by a tennis court, behind an existing dwelling at 5–7 Lonsdale Avenue, Pymble. The land is in the C4 Environmental Living zone and is subject to biodiversity, riparian-land and bushfire considerations.

The parties attended a Court-facilitated conciliation conference on 14 August 2026 and reached in-principle agreement. They subsequently filed a signed agreement and agreed conditions of consent. The amended proposal included measures addressing stormwater, vegetation, biodiversity offsets, earthworks and bushfire planning.

The Court’s Holding

Commissioner Horton upheld the appeal and granted development consent for the amended application, subject to the conditions in Annexure A. Under section 34 of the Land and Environment Court Act 1979 (NSW), the Court was required to give effect to the parties’ agreement if it was a decision the Court could properly make.

The Court found the relevant planning prerequisites were met. It accepted clause 4.6 requests to vary the applicable building-height and floor-space-ratio standards: the height exceedance was limited to a small, open-weave fence component around the rooftop court, while the additional floor space was within a void beneath the court. The Court also found that the proposed biodiversity, stormwater, riparian, earthworks and bushfire measures satisfied the applicable statutory and planning controls.

The Commissioner emphasised that, in making orders implementing the conciliated agreement, the Court did not undertake a merits assessment of the issues originally disputed between the parties.

Key Takeaways

  • A Class 1 planning appeal may be resolved through conciliation where the agreed outcome is one the Court could lawfully make.
  • Clause 4.6 variations were supported by site-specific environmental planning grounds and limited practical impacts.
  • Conditions requiring biodiversity-credit retirement and mitigation measures enabled consent on environmentally constrained land.

Why It Matters

The decision illustrates the Court’s role in converting a negotiated planning outcome into binding orders after confirming statutory prerequisites. It also shows how detailed expert material and conditions can address biodiversity, riparian and bushfire constraints for substantial residential ancillary development.

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