Case: Ghazi Al Ali Architect Pty Ltd v Ku-ring-gai Council

Development Proposed: The construction of a 7 storey residential flat building comprising of 50 units with a proportion of the units dedicated to affordable housing under the State Environmental Planning Policy (Affordable Rental Housing) 2009.

Property Address: 20-24 McIntyre Street, Gordon, NSW 2072

Outcome: Land and Environment Court approval through a s34 Agreement.


  • Floor space ratio;
  • Height, number of storeys and bulk and scale;
  • Building setbacks;
  • Site coverage;
  • Local character and streetscape;
  • Overshadowing;
  • Apartment mix of housing types;
  • Accessibility for residents and other services;
  • Amenity;
  • Waste management and water management;
  • Landscaping; and
  • Topography


  • The Development Application proposes the demolition of the existing structures and the construction of a 7 storey residential flat building comprising 50 units and includes affordable housing;
  • The proposed building comprised:-
    • 5 x 1 bedroom units;
    • 45 x 2 bedroom units;
    • 2 basement levels and 1 level partially above ground which includes parking;
    • Communal open space; and
    • Associated landscape and stormwater works.
  • The site had a south-westerly cross-fall (towards the rear boundary);
  • The locality consists of a mixture of predominantly residential development of mixed density and several other land uses; and
  • Riparian and biodiversity-significant land is identified within the rear south-eastern corner of the site

What Happened?

  • McKees became involved with the Development Application in April 2017, 5 months after the applicant lodged the Development Application;
  • The Class 1 Application was filed with the Land and Environment Court on 7 August 2017;
  • During the s34 Conciliation Conference a number of minor amendments to the plans were agreed upon in order to resolve the majority of the issues set out by Council in its Statement of Facts and Contentions; and
  • McKees were also able to negotiate a way in which to resolve Council’s major concern relating to the height of the building by increasing the width of the building. Consequently, the overall floor area and profitability of the development was unaffected.

Our Contribution

  • McKees were able to accelerate the Development Application process by responding quickly to Council’s contentions and advising the client to file a Class 1 Application;
  • By liaising closely with Council throughout the process a number of issues were able to be resolved before the s34 Conciliation Conference, which simplified the proceedings promoting a positive and focused discussion with Council on the day;
  • McKees were able to facilitate a constructive and fruitful conversation with Council during the s34 Conciliation Conference by collaborating with the team of experts in order to persuasively present the case to the Council; and
  • McKees were actively involved in negotiating a settlement with Council over the following weeks. Approval was successfully achieved in October 2017, by way of s34 Agreement.

Outcome Achieved

  • An accelerated development approval of a 7 storey residential flat building consisting of 50 units; and
  • Maximum yield for the client while taking into account the height restrictions for the area.


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