Cumming v Cumberland Council - [2021] NSWLEC 1330

Land and Environment Court

New South Wales

Medium Neutral Citation: Cumming v Cumberland Council [2021] NSWLEC 1330
Hearing dates: 27-28 April 2021
Date of orders: 8 June 2021
Decision date: 08 June 2021
Jurisdiction: Class 1
Before: Walsh C
Decision:
The Court orders:
(1) The appeal is dismissed.
(2) Development application No. 2020/374 for a boarding house at 32 Mary Street, Lidcombe is refused.
(3) The exhibits are returned with the exception of Exhibits 1 and A-Q.

Catchwords:
DEVELOPMENT APPLICATION – boarding house – building height contravention – imminence and certainty of draft LEP – character compatibility – affect on development potential of adjoining land

Legislation Cited:
Auburn Local Environmental Plan 2010, cll 4.3, 4.4, 4.6, 5.10
Draft Cumberland Local Environmental Plan 2020 Environmental Planning and Assessment Act 1979, s 8.7
State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30A
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Cases Cited:
193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13
Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290; [2001] NSWLEC 279
Boyce v Inner West Council [2019] NSWLEC 1521
Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106

Texts Cited:
Apartment Design Guide
Auburn Development Control Plan 2010

Category: Principal judgment
Parties: John Cumming (Applicant)
Cumberland Council (Respondent)
Representation:
Counsel:
A Galasso SC (Applicant)
C McFadzean (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Cumberland Council (Respondent)

File Number(s): 2020/230470
Publication restriction: No

Judgment

COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Cumberland Council’s deemed refusal of Development Application No. DA 2020/374 (DA). The DA is for a boarding house at 32 Mary Street, Lidcombe (site).

Site and setting

I would note here that for the contextual material that follows, I rely considerably on the Statement of Facts and Contentions filed 22 March 2021 (Ex 1) as prepared by Cumberland Council (Council).
The site is legally described as Lot 3 in DP 205554. It is located on the north-western corner of Mary Street and Frederick Street. The site has an area of some 386.2m², with a frontage of 8.66m to Mary Street (excluding splay), a corner splay of 2.095m and a frontage of 39.005m to Frederick Street (excluding splay).
The site falls approximately 1m from the south-western corner to the north-eastern corner at a grade of some 2.4%.
The site currently contains a single storey brick dwelling house and a detached garage, along with low to medium-scale shrubbery and fruit trees.
The locality includes a variety of development types, including:

A residential flat building (RFB) with an effective height of 4 storeys adjoining to the immediate west. Development further west predominantly comprises RFBs of 2-4 storeys, interspersed with 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: [2021] NSWLEC 1330
Decision Date: 08 June 2021

CaseChat Overview and Summary

The case of Cumming v Cumberland Council involved an appeal against the refusal of a development application for a boarding house at 32 Mary Street, Lidcombe. The applicant, Cumming, sought to appeal the decision of Cumberland Council, which had refused the development application on the basis that it did not comply with the relevant local environmental plan. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issue before the Court was whether the Cumberland Council's decision to refuse the development application was lawful and whether the applicant's proposal complied with the requirements of the local environmental plan. The Court had to consider whether the proposal was consistent with the planning scheme and whether any relevant statutory requirements were met. The Court also had to consider whether the Council's decision was based on an error of law or an unreasonable exercise of discretion.

In delivering its judgment, the Court held that the Cumberland Council's decision to refuse the development application was lawful. The Court found that the proposal did not comply with the local environmental plan and that the applicant had not demonstrated that the proposal was consistent with the planning scheme. The Court also found that the Council's decision was not based on an error of law or an unreasonable exercise of discretion. The Court held that the proposal was not consistent with the surrounding character of the area and that it would have a significant impact on the amenity of the neighbourhood. The Court also found that the applicant had not provided sufficient evidence to demonstrate that the proposal would not have an adverse impact on the environment.

In light of the above findings, the Court dismissed the appeal and upheld the decision of the Cumberland Council to refuse the development application. The Court also made an order that the exhibits be returned with the exception of Exhibits 1 and A-Q. The Court's decision provides useful guidance for applicants seeking to develop property in areas subject to local environmental plans and highlights the importance of ensuring that proposals comply with the relevant planning requirements.

Orders

Orders of the court

The Court orders:

(1) The appeal is dismissed.

(2) Development application No. 2020/374 for a boarding house at 32 Mary Street, Lidcombe is refused.

(3) The exhibits are returned with the exception of Exhibits 1 and A-Q.

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:	Cumming v Cumberland Council [2021] NSWLEC 1330
Hearing dates:	27-28 April 2021
Date of orders:	8 June 2021
Decision date:	08 June 2021
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1) The appeal is dismissed. (2) Development application No. 2020/374 for a boarding house at 32 Mary Street, Lidcombe is refused. (3) The exhibits are returned with the exception of Exhibits 1 and A-Q.
Catchwords:	DEVELOPMENT APPLICATION – boarding house – building height contravention – imminence and certainty of draft LEP – character compatibility – affect on development potential of adjoining land
Legislation Cited:	Auburn Local Environmental Plan 2010, cll 4.3, 4.4, 4.6, 5.10 Draft Cumberland Local Environmental Plan 2020 Environmental Planning and Assessment Act 1979, s 8.7 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30A State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Cases Cited:	193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290; [2001] NSWLEC 279 Boyce v Inner West Council [2019] NSWLEC 1521 Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106
Texts Cited:	Apartment Design Guide Auburn Development Control Plan 2010
Category:	Principal judgment
Parties:	John Cumming (Applicant) Cumberland Council (Respondent)
Representation:	Counsel: A Galasso SC (Applicant) C McFadzean (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Cumberland Council (Respondent)
File Number(s):	2020/230470
Publication restriction:	No