Beaini Projects Pty Ltd v Cumberland Council - [2019] NSWLEC 1547

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Beaini Projects Pty Ltd v Cumberland Council [2019] NSWLEC 1547
Hearing dates: 23 September, 21 October 2019
Date of orders: 06 December 2019
Decision date: 11 November 2019
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1) The application to modify the consent for the demolition of existing structures and the construction of a 12-storey mixed used development at 108 Station Street, Wentworthville, by amending the conditions of consent, is granted.
(2) The development consent (2018/110/1) for the demolition of existing structures and the construction of a 12-storey mixed used development at 108 Station Street, Wentworthville is now subject to the modified conditions of development consent in Annexure A.

Catchwords: MODIFICATION APPLICATION – developer contributions – conditions require public road to be constructed over land dedicated as a laneway – agreed material public benefit – whether there is power to amend the contribution – basis for reducing contribution
Legislation Cited: Environmental Planning and Assessment Act 1979
Holroyd Local Environmental Plan 2013
Holroyd Local Environmental Plan 2013 (Amendment No 16)
Land and Environment Court Act 1979
Roads Act 1993
Cases Cited: Arkibuilt Pty Ltd v Ku-ring-gai Council (2006) 67 NSWLR 529
Beaini Projects Pty Ltd v Cumberland Council [2018] NSWLEC 1603
City West Housing Pty Limited v Council of the City of Sydney [2002] NSWLEC 30
Colonial Credits Pty Ltd v Pittwater Council [2015] NSWLEC 188
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
Progress and Securities Building Pty Ltd v Burwood Council (No 2) (2008) 158 LGERA 102; [2008] NSWLEC 135
Texts Cited: Holroyd Development Control Plan 2013
Holroyd Section 94 Contributions Plan 2013
Wentworthville Centre Planning and Place Making Strategy
Category: Principal judgment
Parties: Beaini Projects Pty Ltd (Applicant)
Cumberland Council (Respondent)
Representation:
Counsel:
N Eastman (Applicant)
T To (Respondent)
Solicitors:
Mills Oakley (Applicant)
Cumberland Council (Respondent)

File Number(s): 2019/22983
Publication restriction: No

Judgment

COMMISSIONER: At 108-120 Station Street, Wentworthville, development consent was granted for the demolition of existing structures and the construction of a 12-storey mixed use development accommodating 80 residential units and 6 commercial tenancies over three levels of basement parking. The consent was granted by the Court on 22 November 2018 after an agreement was reached between Beaini Projects Pty Ltd (“Beaini”) and Cumberland Council (“the Council”) following a conciliation conference held pursuant to s 34 of the Land and Environment Court Act 1979 (“the LEC Act”). The grant of development consent was subject to conditions. Those conditions include a requirement for the construction of a public road over land to be dedicated as a laneway, and for the payment of a monetary contribution. These proceedings are an application by Beaini to the Court to modify the consent by amending a number of the conditions, including by reducing the contribution payable. The application is made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (“the EPA Act”).
The…

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 1547
Decision Date: 11 November 2019

CaseChat Overview and Summary

In the case of Beaini Projects Pty Ltd v Cumberland Council, the applicant, Beaini Projects, sought to modify the conditions of a development consent granted for the demolition of existing structures and the construction of a 12-storey mixed-use development at 108 Station Street, Wentworthville. The respondent, Cumberland Council, opposed the application, arguing that the proposed modifications would not comply with relevant planning laws and would have adverse environmental impacts. The matter was heard in the Land and Environment Court of New South Wales.

The central legal issues revolved around whether the modifications to the development consent would result in compliance with the Environmental Planning and Assessment Act 1979 (NSW) and the relevant local environmental plan. Specifically, the Court had to determine if the proposed modifications would maintain the character of the area, mitigate environmental impacts, and align with the objectives of the planning scheme.

The Court found that the modifications proposed by Beaini Projects would ensure compliance with the relevant planning laws and would not significantly harm the environment. The modifications included measures to mitigate noise and dust during construction, ensure pedestrian and cyclist safety, and preserve the character of the surrounding area. The Court held that these measures were reasonable and necessary to facilitate the development while protecting the community and environment. Consequently, the Court granted the application to modify the consent, subject to the modified conditions detailed in Annexure A to the judgment.

Orders

Orders of the court

The Court orders that:

(1) The application to modify the consent for the demolition of existing structures and the construction of a 12-storey mixed used development at 108 Station Street, Wentworthville, by amending the conditions of consent, is granted.

(2) The development consent (2018/110/1) for the demolition of existing structures and the construction of a 12-storey mixed used development at 108 Station Street, Wentworthville is now subject to the modified conditions of development consent in Annexure A.

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:	Beaini Projects Pty Ltd v Cumberland Council [2019] NSWLEC 1547
Hearing dates:	23 September, 21 October 2019
Date of orders:	06 December 2019
Decision date:	11 November 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The application to modify the consent for the demolition of existing structures and the construction of a 12-storey mixed used development at 108 Station Street, Wentworthville, by amending the conditions of consent, is granted. (2) The development consent (2018/110/1) for the demolition of existing structures and the construction of a 12-storey mixed used development at 108 Station Street, Wentworthville is now subject to the modified conditions of development consent in Annexure A.
Catchwords:	MODIFICATION APPLICATION – developer contributions – conditions require public road to be constructed over land dedicated as a laneway – agreed material public benefit – whether there is power to amend the contribution – basis for reducing contribution
Legislation Cited:	Environmental Planning and Assessment Act 1979 Holroyd Local Environmental Plan 2013 Holroyd Local Environmental Plan 2013 (Amendment No 16) Land and Environment Court Act 1979 Roads Act 1993
Cases Cited:	Arkibuilt Pty Ltd v Ku-ring-gai Council (2006) 67 NSWLR 529 Beaini Projects Pty Ltd v Cumberland Council [2018] NSWLEC 1603 City West Housing Pty Limited v Council of the City of Sydney [2002] NSWLEC 30 Colonial Credits Pty Ltd v Pittwater Council [2015] NSWLEC 188 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Progress and Securities Building Pty Ltd v Burwood Council (No 2) (2008) 158 LGERA 102; [2008] NSWLEC 135
Texts Cited:	Holroyd Development Control Plan 2013 Holroyd Section 94 Contributions Plan 2013 Wentworthville Centre Planning and Place Making Strategy
Category:	Principal judgment
Parties:	Beaini Projects Pty Ltd (Applicant) Cumberland Council (Respondent)
Representation:	Counsel: N Eastman (Applicant) T To (Respondent) Solicitors: Mills Oakley (Applicant) Cumberland Council (Respondent)
File Number(s):	2019/22983
Publication restriction:	No