Ku-ring-gai Council – when can I subdivide my property and build a dual occupancy?

In a significant shift driven by the NSW Government’s push to increase housing supply across Sydney, dual occupancies are now permissible in Ku-ring-gai Council, whether council likes it or not. Whilst Ku-ring-gai has traditionally been known for its strict planning controls and resistance to increasing density, these statewide planning reforms are aimed at tackling the housing crisis. For investors, developers and home owners, this opens the door for valuable development opportunities in one of Sydney’s most desirable areas.

Permissibility of Dual Occupancies:

Dual occupancies have been and still are listed as a prohibited development under the Ku-ring-gai Local Environmental Plan except for a small number of properties listed in Schedule 1 for historical reasons. They are now however permissible generally across the R2 zone by Section 166 of the State Environmental Planning Policy (Housing) 2021, which states “Development for the purposes of dual occupancies or semi-detached dwellings is permitted with development consent on land to which this chapter applies in Zone R2 Low Density Residential.” It should be noted that State Environmental Planning Polices override Local Environmental Plans. Section 164 should be referred to confirm that the chapter applies to your land. Exclusion of your land from this chapter includes, but is not limited to:

• Bushfire prone land
• Heritage item
• Land which Transport Oriented Development applies
• Land identified as Accelerated TOD Precinct

How are they assessed:

The relevant controls in the Ku-ring-gai Local Environmental Plan 2015 and Ku-ring-gai Development Control Plan are still applicable and will be considered in the assessment of dual occupancies. For example, the floor space ratio permitted on your land remains as an applicable development standard.

Clause 4.4 Floor Space Ratio

The following clauses are found within the Ku-ring-gai LEP at Clause 4.4.

(2)  The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

(2A)  Despite subclause (2), the floor space ratio for a building on land in Zone R2 Low Density Residential where the site area is within a specified range in Column 1 of the table to this subclause must not exceed the ratio specified opposite in Column 2 of the table.

Column 1	Column 2
More than 1,700 square metres	0.3:1
More than 1,000 square metres but not more than 1,700 square metres	((170 + (0.2 × site area)) / site area):1
More than 800 square metres but not more than 1,000 square metres	((120 + (0.25 × site area)) / site area):1
800 square metres or less	0.4:1

(2B)  Despite subclause (2A), if a dual occupancy (detached) is permissible on the land, the floor space ratio for the dual occupancy (detached) must not exceed 0.4:1.

See the following link to access Clause 4.4 of the KLEP 2015

Subclause (2A) applies to all buildings in the R2 zone, including attached dual occupancies. Subclause (2B) was intended to be applied to dual occupancies permissible under Schedule 1 of the LEP. Now that dual occupancies are permissible, one could argue that the wording of this clause implies that all detached dual occupancies can benefit from an FSR of 0.4:1. However, this is all likely to be updated in the near future.

There are anticipated changes that are expected to come into force that will impact on the assessment of dual occupancies. According to Ku-ring-gai Council’s website, the current status is:

1. Council is awaiting the gazettal by the NSW government for the minimum lot size of 1,015sqm for dual occupancy development.
2. Council is preparing controls to guide the development of dual occupancies to be included in their DCP.
3. Council is preparing a planning proposal to include a maximum floor space ratio for dual occupancies.

There is no confirmation or information available to understand the expected timeframes of these changes. However, at present, dual occupancies can only be assessed against the current applicable controls.

Where the DCP is silent and does not include controls to guide the development of dual occupancies, the controls of the Low-Rise Housing Diversity Design Guide for Development Applications should be considered. This guide helps the council to assess the DAs, until they develop their own specific controls within the DCP. In designing a dual occupancy, the controls included in this guide should also be considered. The guide can be accessed at the following link.

 

Low and Mid-Rise Housing

The recently introduced Low and Mid-Rise Housing Policy – SEPP (Housing) 2021 enables a greater variety of housing development across the state. Low rise development includes dual occupancies, terraces and manor houses and mid-rise development included 3 and 4 storey residential flat buildings. The policy enables Low Mid-Rise housing types within the NSW Government Local Housing Areas, which are areas within 800 meters walking distance from the edge of the mapped town centres or the entrance to a nominated train station. In Ku-ring-gai Council, the nominated town centres include:

• Roseville Station
• Lindfield Station and town centre
• Gordon Station and town centre
• Pymble Station
• St Ives Shopping Village shopping centre
• Turramurra station and town centre
• Wahroonga Station

The Low and Mid-Rise Housing Policy Indicative mapping, showing indicative LMR housing areas can be viewed at the following link.

If your lot falls within an LMR housing area, there are non-discretionary development standards which apply for dual occupancies, listed in Section 168 of the Housing SEPP. Essentially, this means that a DA lodged for a dual occupancy on this land cannot be refused on the basis of any of the following:

1. a minimum lot size of 450m2,
2. a minimum lot width at the front building line of 12m,
3. if no environmental planning instrument or development control plan that applies to the land specifies a maximum number of car parking spaces per dwelling—a minimum of 1 car parking space per dwelling,
4. a maximum floor space ratio of 0.65:1,
5. a maximum building height of 9.5m.

Despite the above mentioned non-discretionary standards, dual occupancies within the LMR areas will be assessed by council under the LEP, DCP and Low-rise Housing Diversity Design Guide for Development Applications until Council’s own controls are in force or complying development becomes available.

Dual occupancies may be subdivided by Torrens Title after an Occupation Certificate is issued.

Section 169(3) of the Housing SEPP provides the non-discretionary development standards for subdivision:

1. each resulting lot must contain no more than 1 dwelling,
2. each resulting lot must be at least 6m wide at the front building line,
3. each resulting lot must have lawful access and frontage to a public road,
4. each resulting lot must have an area of at least 225m² ,
5. each resulting lot must not be a battle-axe lot.

Subsection (4) provides that this section does not apply to strata subdivision.

Difficulties to achieving a dual occupancy

Achieving approval for a dual occupancy in Ku-ring-gai council is far from straightforward. Like all forms of development, there are site constraints that can complicate the process—and in some cases, derail it entirely. Without proper due diligence, the dream of a profitable or practical dual occupancy can quickly become unfeasible.

Topography and Drainage

The slope of the land is a major consideration in any development, and this is especially true in Ku-ring-gai, where many sites feature undulating terrain. One of the most common challenges arises when a site lacks adequate fall toward the street. In these cases, gravity-fed stormwater drainage may not be possible.

Alternative drainage solutions such as on-site absorption systems or tapping into an existing stormwater easement may need to be explored. However, securing access to an easement, particularly one that crosses a neighbour’s property, can be both time-consuming , complex and expensive. It often involves legal negotiations, detailed engineering plans, and the cooperation of adjoining landowners. Without an existing easement or the ability to establish one, lodging a dual occupancy development application may not even be viable.

Tree Preservation and Protection

Ku-ring-gai’s established character is defined by its abundant tree canopy, and as such, tree preservation is strictly enforced. Native species and mature trees, both on the subject site, neighbouring properties and on the street, are protected under local controls. Developers must take care to preserve these trees throughout the design and construction process.

In many cases, a tree root investigation may be required, especially if a new driveway or building is proposed within proximity to a protected tree. These investigations can influence the layout of a development or even prevent certain works from proceeding. Preservation of canopy cover is not just encouraged, it’s essential and enforced!

Access and Driveway Design

Providing vehiclular access to two dwellings on one lot is often more complicated than it initially appears. While utilising an existing driveway and splitting it between the dwellings is ideal, this isn’t always possible. If a new driveway is required, a number of physical and regulatory challenges may emerge.

Street trees, stormwater pits, power poles, and other existing infrastructure can all obstruct driveway placement. Relocating services such as Ausgrid power poles or stormwater pits can be extremely costly and time consuming—and only with council consent. In some cases, these obstacles alone can make a dual occupancy design unworkable.

Building on Major Roads

Sites located on major roads present another layer of complexity. Council and Transport for NSW are often more cautious with developments on busier thoroughfares due to safety concerns. To meet design standards, wider driveways may be required and vehicles must enter and exit the site in a forward direction. This can trigger the need for swept path analysis by a qualified traffic engineer, adding both cost and complexity to the design process.

Documents required for lodgement of the DA

Before submitting a development application for a dual occupancy to the local council, it is essential to ensure that all required documentation is complete and ready for submission. There are nine core documents that must accompany every new dual occupancy application (listed below). In addition to these, further documentation may be required depending on the specific circumstances of the development or unique characteristics of the site. 

Required documents

1. Architectural Plans – including a site analysis plan, site plan, floor plans, elevations, sections, shadow diagrams, schedule of colours and materials
2. BASIX Certificate
3. Landscape Plans
4. Owners Consent
5. Quantity Surveyors Report
6. Statement of Environmental Effects
7. Stormwater Plans
8. Survey Plan
9. Waste Management Plan

Additional documents

1. Arborist’s Report – if proposed works are within the canopy or drip line of protected trees under the Ku-ring-gai DCP
2. Biodiversity Development Assessment Report – if the amount of native vegetation being cleared exceeds the threshold area or the impacts of the development occur on an area mapped on the Biodiversity Values Map
3. Civil Plans – if you have a steep driveway a civil plan may be required to establish the driveway design and grades
4. Clause 4.6 Variation – if the proposed works result in a non-compliance with a development standard
5. Flood Management Plan – if land is identified as flood prone land
6. Geotechnical Report – if the proposed works result in excavation to a depth of two metres or more below the existing ground level
7. Heritage Impact Assessment – if the site is located within a heritage conservation area
8. Noise Assessment Report – for any development adjacent to a rail corridor or near a busy road
9. Subdivision plan – if Torrens title subdivision or Strata subdivision is proposed
10. Vegetation Management Plan – if the proposed works will impact either directly or indirectly on areas of remnant native vegetation or riparian areas.

For further detail, we recommend you review Ku-ring-gai Council’s Development Application Guide, accessible at the following link.

Conclusion

Ultimately, while the new planning framework creates exciting opportunities, not every property in Ku-ring-gai is suitable for a dual occupancy. Detailed feasibility assessments are essential before committing to design or purchase decisions. From drainage and access to trees and traffic, each site presents its own unique combination of constraints that must be resolved to achieve approval. Investors and homeowners considering a dual occupancy should engage experienced professionals early—planners, designers, engineers, and surveyors—to understand the full scope of site constraints and avoid costly surprises down the line.