Sydney Project Group Pty Ltd v Cumberland Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sydney Project Group Pty Ltd v Cumberland Council [2017] NSWLEC 1500
Hearing dates:	13 April 2017
Date of orders:	12 September 2017
Decision date:	12 September 2017
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders:  (1) The appeal is dismissed. (2) Development consent is refused for DA 5-2017 for the creation of a stratum subdivision in the airspace above the currently approved development at 34-40 John St, Lidcombe. (3) The exhibits are returned, with the exception of Exhibits 1 and A.
Catchwords:	Development Application - stratum subdivision of airspace above an approved development - whether development is permissible within the proposed subdivision - subdivision requires purpose - Draft Auburn and Lidcombe Town Centres Strategy
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Auburn Local Environmental Plan 2010 Auburn Development Control Plan 2010
Cases Cited:	Parrott v Kiama [2004] NSWLEC 77 Penrith Lakes Development Corporation v Penrith City Council [2015] NSWLEC 1329 Seraphina Bell Pty Ltd v Willoughby Municipal Council (No 2) (1967) 14 LGRA 209
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Sydney Project Group Pty Ltd (Applicant) Cumberland Council (Respondent)
Representation:	Counsel: P Jayne (Applicant) P Clay (Respondent) Solicitors: Madison Marcus Law Firm (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/51349
Publication restriction:	Nil

Judgment

Background

1. COMMISSIONER: Sydney Property Group (the applicant) has appealed the deemed refusal by Cumberland Council (the respondent) of its development application (DA-5/2017) for a stratum subdivision of airspace above its approved development in Lidcombe.

2. The development application proposes the creation through subdivision of a stratum development lot (hereafter referred to as the “Lot 3 stratum subdivision”) comprising two elements:

1. the airspace above an approved mixed use building development to enable development to a height of 55m; and

2. part of the basement car parking in the current approved development. This would consist of an estimated 37 car parking spaces that could be allocated to the proposed strata subdivision and facilitate future car parking requirements associated with a potential future development application within that strata.

3. The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (the ‘EP&A Act’).

4. The Subject Site is located at 36 to 44 John Street, Lidcombe (formally identified as Lot 100 in DP1224834). It has a main frontage to John Street and there are secondary frontages to Ann St and Board Street.

5. The appeal was the subject of a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the ‘LEC Act’) on 20 March 2017. An inspection of the Subject Site was undertaken as part of the conciliation conference.

6. As the parties were unable to resolve the issues during the s 34 conciliation, the conciliation was terminated. The parties consented to me disposing of the proceedings under s 34C of the LEC Act.

Statutory considerations

Environmental Planning and Assessment Act 1979

7. Section 79C(1) of the EP&A Act states:

“79C Evaluation

(1) Matters…