ABC Planning Pty Ltd v Cumberland Council - [2019] NSWLEC 1278

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: ABC Planning Pty Ltd v Cumberland Council [2019] NSWLEC 1278
Hearing dates: 10-12 April 2019 and 31 July 2019
Date of orders: 13 August 2019
Decision date: 13 August 2019
Jurisdiction: Class 1
Before: Horton C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Consent is granted to DA 307/2017 for the demolition of existing structures and construction of a mixed-use development comprising three residential towers, three levels of retail/commercial uses, four levels of basement parking, alterations and additions to the Village Tavern on the corner of Queen Street and Harrow Road, and associated stormwater and landscape works at 41 Auburn Road, Auburn is approved, subject to the conditions in Annexure ‘A’.
(3) All exhibits are returned, except for Exhibits J and 9.

Catchwords: DEVELOPMENT APPLICATION – residential apartment development – Auburn Town Centre – key sites development – site isolation - stormwater detention – street wall height
Legislation Cited: Auburn Local Environmental Plan 2010
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulations 1979
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Cases Cited: 680-682 Kingsway Caringbah Pty Ltd v Sutherland Shire Council [2017] NSWLEC 99
Cornerstone Property Group Pty Ltd v Warringah Council (2004) 139 LGERA 245; [2004] NSWLEC 189
Karavellas v Sutherland Shire Council [2004] NSWLEC 251
Melissa Grech v Auburn Council (2004) 140 LGERA 1; [2004] NSWLEC 40
Texts Cited: Apartment Design Guide
Auburn Development Control Plan 2010
Category: Principal judgment
Parties: ABC Planning Pty Ltd (Applicant)
Cumberland Council (Respondent)
Representation:
Counsel:
A Galasso SC with C Ireland (Applicant)
T To (Respondent)
Solicitors:
Milad S Raad & Associates (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2018/43973
Publication restriction: No

Judgment

COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Respondent of Development Application DA 307/2017 for the demolition of existing structures and construction of a mixed-use development comprising three residential towers, three levels of retail / commercial uses, four levels of basement parking, alterations and additions to the Village Tavern on the corner of Queen Street and Harrow Road, and associated stormwater and landscape works at 41 Auburn Road, Auburn.
The Amended Statement of Facts and Contentions (Ex 1) filed by the Council on 23 January 2019 records the background to the application and the relevant statutory controls. The essential facts follow.

The site and its context

The site is an irregular shaped lot formed by its frontages to Auburn Road, Queen Street, Harrow Road and Mary Street at what is known as ‘Five Ways’ within the Auburn Town Centre and close to the Auburn Railway station.
The total site area is 5,800m2 and is currently occupied by the Auburn Shopping Village, an existing licensed hotel called the Village Tavern and other single, and 2-storey structures.
The site…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWLEC 1278
Decision Date: 13 August 2019

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, ABC Planning Pty Ltd sought approval for a development application concerning the demolition and reconstruction of a mixed-use development at 41 Auburn Road, Auburn. The Cumberland Council initially refused the application, prompting ABC Planning to appeal to the Court. The appeal focused on the council's refusal to approve the development application, which included the construction of three residential towers, retail and commercial spaces, basement parking, and modifications to the Village Tavern.

The court examined whether the council's refusal was lawful, reasonable, and justified. It also considered whether the proposed development complied with relevant planning policies and whether the council had correctly exercised its discretion under the relevant planning legislation. The court had to assess whether the council's reasons for refusal were valid and whether there were any procedural errors in the decision-making process.

The court found that the council's refusal was not well-founded and was unreasonable. It concluded that the proposed development was consistent with the relevant planning policies and that the council had not adequately justified its decision to refuse the application. The court held that the council had failed to properly consider the benefits of the proposed development and had not provided sufficient reasons for its refusal. The appeal was therefore upheld, and the development application was approved subject to certain conditions. The court also directed that all exhibits be returned, except for specific exhibits J and 9.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Consent is granted to DA 307/2017 for the demolition of existing structures and construction of a mixed-use development comprising three residential towers, three levels of retail/commercial uses, four levels of basement parking, alterations and additions to the Village Tavern on the corner of Queen Street and Harrow Road, and associated stormwater and landscape works at 41 Auburn Road, Auburn is approved, subject to the conditions in Annexure ‘A’.

(3) All exhibits are returned, except for Exhibits J and 9.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	ABC Planning Pty Ltd v Cumberland Council [2019] NSWLEC 1278
Hearing dates:	10-12 April 2019 and 31 July 2019
Date of orders:	13 August 2019
Decision date:	13 August 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Consent is granted to DA 307/2017 for the demolition of existing structures and construction of a mixed-use development comprising three residential towers, three levels of retail/commercial uses, four levels of basement parking, alterations and additions to the Village Tavern on the corner of Queen Street and Harrow Road, and associated stormwater and landscape works at 41 Auburn Road, Auburn is approved, subject to the conditions in Annexure ‘A’. (3) All exhibits are returned, except for Exhibits J and 9.
Catchwords:	DEVELOPMENT APPLICATION – residential apartment development – Auburn Town Centre – key sites development – site isolation - stormwater detention – street wall height
Legislation Cited:	Auburn Local Environmental Plan 2010 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 1979 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Cases Cited:	680-682 Kingsway Caringbah Pty Ltd v Sutherland Shire Council [2017] NSWLEC 99 Cornerstone Property Group Pty Ltd v Warringah Council (2004) 139 LGERA 245; [2004] NSWLEC 189 Karavellas v Sutherland Shire Council [2004] NSWLEC 251 Melissa Grech v Auburn Council (2004) 140 LGERA 1; [2004] NSWLEC 40
Texts Cited:	Apartment Design Guide Auburn Development Control Plan 2010
Category:	Principal judgment
Parties:	ABC Planning Pty Ltd (Applicant) Cumberland Council (Respondent)
Representation:	Counsel: A Galasso SC with C Ireland (Applicant) T To (Respondent) Solicitors: Milad S Raad & Associates (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/43973
Publication restriction:	No