Case: El-Hage Construction Pty Ltd v Ku-ring-gai Council

Development Proposed: Construction of a seniors living development: 2 separate buildings comprising 8 dwellings.

Property Address: 140 Pentecost Avenue, Turramurra, NSW 2074

Outcome: Development consent was issued after an Interim Heritage Order placed on the property was revoked. Court approval was achieved through a s34 Agreement.


  • Overshadowing impact on neighbours;
  • Tree removal and construction impacts on remaining trees;
  • Unacceptable landscape alterations and protection of existing award winning garden;
  • Inconsistencies with the deep soil calculations;
  • Stormwater management; and
  • Access to facilities.


  • The Development Application proposed the demolition of existing structures, excavation for basement parking and construction of 2 buildings comprising 5 dwellings in building 1, 3 dwellings in building 2 with basement car parking and storage; and
  • The development is pursuant to the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.

What Happened?

  • The Development Application was lodged with Council on 11 February 2015;
  • McKees were engaged during March 2015 to provide advice in order to maximise the prospect of success and expedite the process with Council;
  • A Class 1 Application was filed with the Land and Environment Court on 2 April 2015 against the deemed refusal of the Development Application;
  • A complication arose on 19 May 2015 when an Extraordinary Council Meeting was held to determine whether an Interim Heritage Order should be placed on the property in order to heritage list the existing dwelling and rock garden. The Interim Heritage Order was gazetted on 22 May 2015;
  • The s34 Conciliation Conference went ahead despite the Interim Heritage Order and McKees engaged in negotiations with Council and responded to feedback from the neighbours. All merit issues were resolved at the conciliation.
  • McKees briefed Senior Counsel for the hearing regarding the Interim Heritage Order and facilitated the preparation of expert evidence in response to Council; and
  • The Court found that the dwelling and garden did not meet the heritage criterion and the Interim Heritage Order was revoked. The Development Application was approved by the Court following that decision.

Our Contribution

  • The conciliation with Council and subsequent amendments to the plans was able to be achieved in such a way that the yield of the development was not negatively impacted;
  • McKees were able to advise the client on which breaches or issues with the plans could be successfully negotiated with Council and which should be modified;
  • We also advised and were involved in the organisation of specialist reports in order to bring greater clarity on points of conflict involving the heritage items; and
  • McKees engaged a heritage expert with extensive experience to advise of the Interim Heritage Order prospects.

Outcome Achieved

  • McKees was able to facilitate the legal proceedings and successfully have the Interim Heritage Order revoked; and
  • McKees coordinated and organised the group of specialists so that the client’s case could be presented persuasively at the s34 Conciliation Conference resulting in the resolution of all merit issues, which the Court ultimately approved.


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