Elcheikh v Cumberland Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Elcheikh v Cumberland Council [2018] NSWLEC 1165
Hearing dates:	7-8 March 2018
Date of orders:	05 April 2018
Decision date:	05 April 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) The development application, numbered 540/2016, for the demolition of an existing single storey dwelling and the construction of a 5-storey boarding house at 15 Cross Street, Guildford, is refused. (3) The exhibits are returned, except for exhibits A and B.
Catchwords:	APPEAL – development application – boarding house – character of the local area – whether apartment design guide can be used to determine future character – compatibility – amenity impacts – overshadowing – internal amenity
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4.15, 8.7 Parramatta Development Control Plan 2011 Parramatta Local Environmental Plan State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited:	Hastings Point Progress Association Incorporated v Tweed Shire Council 168 LGERA 99, [2009] NSWCA 285
Category:	Principal judgment
Parties:	Obeida Elcheikh (Applicant) Cumberland Council (Respondent)
Representation:	Solicitors: Mr G McKee, McKees Legal Solutions (Applicant) Mr A Gough, Storey & Gough (Respondent)
File Number(s):	2017/158784
Publication restriction:	Nil

Judgment

1. Around 100m east of Guildford train station, Cross Street runs parallel to the train line and ends to the north at an intersection with the main shopping and business centre at Guildford Road. Cross Street is currently in a state of transition anticipated by multiple changes to the planning controls. That transition will increase the intensity of the residential development so that many of the remaining single storey dwelling houses may, over time, be developed for residential development with higher densities of varying heights.

2. At 15 Cross Street, Mr Obeida Elcheikh seeks approval to construct a 31 room, 5 storey boarding house with basement car, motorcycle and bicycle parking. The 31 boarding rooms proposed comprise 13 double rooms and 18 single rooms, resulting in a capacity for 44 residents. The development application was lodged with Cumberland Council (“the Council”) on 1 December 2016. Following the expiry of the period after which an application is deemed to be refused, Mr Elcheikh appealed pursuant to the former s 97 of the Environmental Planning and Assessment Act 1979 (“the EPA Act”). Following amendments to the EPA Act which commenced on 1 March 2018, the provisions of the former s 97 have been renumbered to s 8.7(1).

3. At the hearing, Mr Elcheikh sought and obtained leave to rely on further amended plans. Those plans arise following the joint conference of the town planners, and seek to improve the quality of the communal lounge room and the communal open space.

4. The Council oppose the grant of development consent on the basis of a number of contentions, which can be summarised as follows:

• The design of the proposed development is not compatible with the existing or desired future character of the local area, particularly when considered against the envelope controls…