Cumming v Cumberland Council (No 3)

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cumming v Cumberland Council (No 3) [2022] NSWLEC 1214

Hearing dates:

11-12 April 2022

Date of orders:

26 April 2022

Decision date:

26 April 2022

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.
(2) Development Application No. 2020/374 for a seven storey boarding house containing 24 boarding rooms and a manager’s room, at 32 Mary Street, Lidcombe, is determined by the grant of consent, subject to the conditions of consent at Annexure A.
(3) The exhibits, other than Exhibits 1 and X, are returned.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – contravention of the height of buildings development standard – bulk and scale – insufficient onsite car parking

Legislation Cited:

Auburn Local Environmental Plan 2010, cll 4.3, 4.4, 4.6
Cumberland Local Environmental Plan 2021, cll 1.8A, 4.3, 4.4
Environmental Planning and Assessment Act 1979 ss 4.15, 8.7, 8.15
Land and Environment Court Act 1979, s 39
State Environmental Planning Policy (Affordable Rental Housing) 2009, Div 3 cll 26, 27, 29, 30
State Environmental Planning Policy (Housing) 2021, cl 2 of Sch 7A, Pt 2 Div 2, cll 10, 23, 24, 25, 26

Cases Cited:

Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61
Cumming v Cumberland Council [2021] NSWLEC 1330
Cumming v Cumberland Council (No 2) [2021] NSWLEC 117

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Friends of Malua Bay Inc v Perkins (2014) 203 LGERA 14: [2014] NSWLEC 95
Gillespies v Warringah Council (2002) 124 LGERA 147; [2002] NSWLEC 224

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130

Shaffer Corp Ltd v Hawkesbury City Council (1992) 77 LGRA 21

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Cumberland Development Control Plan 2021

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

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 2020/374 for a seven storey boarding house containing 24 boarding rooms and a manager’s room (the proposal), at 32 Mary Street, Lidcombe (the site), by Cumberland Council (the Council).

Issues

2. The Council’s contentions can be summarised as:

• The proposal contravenes the height of buildings development standard under the Auburn Local Environmental Plan 2010 (LEP 2010) of 20m with a maximum height of 23.09m and the applicant’s written request justifying the contravention of the development standard has not adequately addressed the matters required to be addressed under cl 4.6(3) of LEP 2010. The proposal’s height is not compatible with the character of locality.

• The size and width…