Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 Hearing dates: 12 October 2021 Date of orders: 2 November 2021 Decision date: 02 November 2021 Jurisdiction: Class 1 Before: Moore J Decision: See orders and directions at [92]
Catchwords: APPEAL - refusal of development application for boarding house - proposal exceeds the permitted height in local environmental plan - application for dispensation to comply with height requirement - dispensation application rejected on the basis insufficient planning grounds established - appeal against refusal on a question of law - tests for dispensation application confined to consideration of the breach of the height standard - Commissioner's refusal of dispensation request based on grounds not related to the proposed height breach - appeal upheld
REMITTER - exclusionary remitter sought - exclusionary remitter appropriate
COSTS - submitting appearance from consent authority except as to costs - costs ordinarily follow the event - early submitting appearance and lack of contradictor on appeal - no order for costs unless applicant applies within 14 days to order otherwise
Legislation Cited: Auburn Local Environmental Plan 2010, cl 4.6
Land and Environment Court Act 1979, s 56A
Standard Instrument (Local Environmental Plans) Order 2006
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 4(4)
Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339
Brimbella Pty Ltd v Mosman Municipal Council (1993) 79 LGERA 367
Cumming v Cumberland Council [2021] NSWLEC 1330
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Category: Principal judgment Parties: John Cumming (Applicant)
Cumberland Council (Respondent)Representation: Counsel:
Solicitors:
Mr A Galasso SC (Applicant)
Submitting appearance (Respondent)
Mills Oakley (Applicant)
Cumberland Council (Respondent)
File Number(s): 193307 of 2021 Publication restriction: No Decision under appeal
- Court or tribunal:
- Land and Environment Court
- Jurisdiction:
- Class 1
- Citation:
- Date of Decision:
- 08 June 2021
- Before:
- Walsh C
- File Number(s):
- 230470 of 2020
TABLE OF CONTENTS
Introduction
Mr Cumming’s proposed development
The appeal
The orders originally sought
The Amended Summons
The appeal grounds
The relevant statutory provisions
Introduction
State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development
The Auburn Local Environmental Plan 2010
State Environmental Planning Policy (Affordable Rental Housing) 2009
Representation
The evidence
Introduction
The Joint Expert Town Planning Report
The hearing
The case for Mr Cumming on appeal
The relevant element of the cl 4.6 request
The Commissioner’s judgment
Ground 2
Ground 3
Consideration
An exclusionary remitter?
Costs
Orders
Directions
Judgment
Introduction
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On 26…
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- Case
- [2021] NSWLEC 117
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the Council owed a duty of care to the plaintiffs, whether that duty was breached, and whether the breach caused the injuries suffered by the child. The court also had to consider whether the Council could be held vicariously liable for the actions of the obstetrician. The parents argued that the Council was vicariously liable for the obstetrician's negligence because he was an employee of the hospital which was under the control of the Council. The Council argued that the obstetrician was an independent contractor and not an employee, and therefore it could not be held vicariously liable for his actions.
The court found that the Council did owe a duty of care to the plaintiffs, but that duty was not breached. The court held that the obstetrician was an independent contractor and not an employee of the Council, and therefore the Council could not be held vicariously liable for his actions. The court also found that even if the Council had been vicariously liable, the obstetrician's breach of duty did not cause the child's injuries. The court dismissed the appeal and affirmed the primary judge's decision.
The final orders of the court were that the appeal be dismissed with costs. The parents were ordered to pay the Council's costs of the appeal on an indemnity basis. The obstetrician was ordered to pay his own costs of the appeal.
Orders
Orders of the court
See orders and directions at [92]
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.