Modern Building Development Pty Ltd v Cumberland Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Modern Building Development Pty Ltd v Cumberland Council [2025] NSWLEC 1070

Hearing dates:

18, 19, 22 July 2024. Further submissions received 25 July 2024.

Date of orders:

11 February 2025

Decision date:

11 February 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development application number 2023/0118, as amended, for the removal of trees, demolition of existing structures and construction of a centre based child care facility at 12 Florence Street, South Wentworthville, is refused.

(3) The Exhibits are returned, except for Exhibits A, C, 1.

Catchwords:

DEVELOPMENT APPEAL – centre based child care facility – site amalgamation – genuine offers - variation to consolidation plan – concept plans - impacts on adjoining property – likely impacts of development

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 3.43, 4.15

Land and Environment Court Act 1979, s 39

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.26. 3.27

Cumberland Local Environmental Plan 2021

Cases Cited:

Statewide Planning Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1210

Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472

Texts Cited:

Cumberland Development Control Plan 2021

Category:

Principal judgment

Parties:

Modern Building Development Pty Ltd (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
M Fozzard (Applicant)
C McFadzean (Solicitor) (Respondent)

Solicitors:
DG Briggs and Associates (Applicant)
Cumberland Council (Respondent)

File Number(s):

2023/435684

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: These proceedings are about the suitability of a child care centre in an employment zone where high density residential is also permitted. One of the key issues is the variation of the site consolidation plan and the impacts to the remaining sites.

2. This is a Class 1 appeal by Modern Building Development Pty Ltd (Modern Building) of Cumberland Council’s (Council) actual refusal of DA No. 2023/0118 for the removal of trees, demolition of existing structures and construction of a centre-based child care facility at 12 Florence Street, South Wentworthville.

3. For the reasons set out, the proposed development has not demonstrated that it has made genuine efforts to consolidate with the surrounding properties to permit a variation to the site consolidation plan for the Finlayson Transitway Precinct. The environmental impacts to the adjoining properties warrants refusal of the amended DA.

Amended Application

4. During the hearing the Applicant sought to amend their DA. Council partly opposed the amendments in relation to the further valuation report and engineering statement regarding the easement at 14 Florence Street.

5. The Court granted leave to amend the DA pursuant to s 39 of the Land and Environment Court Act 1979, however did not allow evidence in relation to the engineering evidence regarding the easement on the basis that the evidence was not directly relevant to the stated issues in dispute. The other amendment opposed by Council was the introduction of a further valuation report. The further valuation report was allowed on the basis that the town planners had dealt…