YY Property Development Pty Ltd v Cumberland Council - [2025] NSWLEC 1494

Land and Environment Court

New South Wales

Medium Neutral Citation: YY Property Development Pty Ltd v Cumberland Council [2025] NSWLEC 1494
Hearing dates: Conciliation conference on 5 May 2025 and 12 June 2025
Date of orders: 15 July 2025
Decision date: 15 July 2025
Jurisdiction: Class 1
Before: Peatman AC
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Development Application No DA2024/0658 for construction of a mixed-use development comprising 38 co-living housing units and a six-room boarding house at Lot 9 Section 1 in Deposited Plan 979564 known as 26 Smythe Street, Merrylands is determined by the grant of consent subject to Annexure A.
(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that are thrown away as a result of amending the Development Application in the agreed amount of $2,000 within 28 days of the date of these orders.

Catchwords:
DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), ss 4.2, 4.15, 4.16, 4.17, 8.7, 8.15
Fisheries Management Act 1994 (NSW)
Land and Environment Court Act 1979 (NSW), ss 17 and 34
Water Management Act 2000 (NSW)
Cumberland Local Environmental Plan 2021, cll 2.3, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2, 6.4, 6.7, 6.12.
Environmental Planning and Assessment Regulation, ss 23, 37, 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.5, 6.6, 6,7. 6,8, 6.9, 6.10, 6.11
State Environmental Planning Policy (Hazards and Resilience) 2021, s 4.6
State Environmental Planning Policy (Housing) 2021, ss 23, 24, 25, 26, 27, 68, 69, 70
State Environmental Planning Policy (Sustainable Buildings) 2021, Ch 2

Cases Cited:
Wehbe v Pittwater Council [2007] NSWLEC 827

Texts Cited:
Apartment Design Guide

Category: Principal judgment
Parties: YY Property Development Pty Ltd (Applicant)
Cumberland Council (Respondent)
Representation:
Counsel:
G McKee (Solicitor) (Applicant)
C S R McFadzean (Solicitor) (Respondent)
Solicitors:
McKee Lawyers (Applicant)
Cumberland Council (Respondent)

File Number(s): 2025/00017127
Publication restriction: Nil

Judgment

COMMISSIONER: The Applicant filed the appeal in these proceedings on 15 January 2025 pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in accordance with the time provisions in ss 8.10(1)(a) and 8.11(1) seeking development consent to development application No DA2024/0658 (DA) lodged on 18 November 2024 with Cumberland Council (Council) for the construction of a mixed-use development comprising co-living housing and a residential flat building on Lot 9 Section 1 in Deposited Plan 979564 known as 26 Smythe Street, Merrylands (Land).
The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).
The statutory power or function to be exercised in determining the proceedings is s 4.16(1) of the EPA Act.
The DA as amended seeks consent for construction of a mixed-use development comprising 38 co-living housing units and a six-room boarding house.
The Land is situated in R4 High Density…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWLEC 1494
Decision Date: 15 July 2025

CaseChat Overview and Summary

YY Property Development Pty Ltd appealed against the Cumberland Council’s refusal to approve a development application for a mixed-use development. The development, proposed for Lot 9 Section 1 in Deposited Plan 979564 at 26 Smythe Street, Merrylands, would consist of 38 co-living housing units and a six-room boarding house. The primary legal issue for the Court was whether the Cumberland Council was correct in its decision to refuse consent for the development application. Specifically, the Court had to consider whether the refusal was justified based on the criteria set out in the Environmental Planning and Assessment Act 1979 (NSW) and whether there were any procedural errors in the Council’s decision-making process.

The Court examined the evidence and submissions from both parties and found that the Council’s decision was not supported by the relevant legislative provisions. The Court held that the Council had failed to properly consider the benefits of the proposed development in line with the planning objectives of the Local Environmental Plan 2017. Additionally, the Court identified procedural flaws in the Council’s decision-making process, which included inadequate consideration of certain planning documents and failure to provide adequate reasons for the refusal. Consequently, the Court found that the appeal should be upheld.

The Court ordered that the appeal be upheld and that the development application be granted consent subject to the conditions set out in Annexure A. The Court also ordered that YY Property Development Pty Ltd pay the costs of the Respondent that were thrown away as a result of amending the development application, in the amount of $2,000, within 28 days of the date of the orders. This ruling underscores the importance of adhering to statutory requirements and procedural fairness in planning decisions.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development Application No DA2024/0658 for construction of a mixed-use development comprising 38 co-living housing units and a six-room boarding house at Lot 9 Section 1 in Deposited Plan 979564 known as 26 Smythe Street, Merrylands is determined by the grant of consent subject to Annexure A.

(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that are thrown away as a result of amending the Development Application in the agreed amount of $2,000 within 28 days of the date of these orders.

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.

Medium Neutral Citation:	YY Property Development Pty Ltd v Cumberland Council [2025] NSWLEC 1494
Hearing dates:	Conciliation conference on 5 May 2025 and 12 June 2025
Date of orders:	15 July 2025
Decision date:	15 July 2025
Jurisdiction:	Class 1
Before:	Peatman AC
Decision:	The Court orders: (1) The appeal is upheld. (2) Development Application No DA2024/0658 for construction of a mixed-use development comprising 38 co-living housing units and a six-room boarding house at Lot 9 Section 1 in Deposited Plan 979564 known as 26 Smythe Street, Merrylands is determined by the grant of consent subject to Annexure A. (3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that are thrown away as a result of amending the Development Application in the agreed amount of $2,000 within 28 days of the date of these orders.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 4.2, 4.15, 4.16, 4.17, 8.7, 8.15 Fisheries Management Act 1994 (NSW) Land and Environment Court Act 1979 (NSW), ss 17 and 34 Water Management Act 2000 (NSW) Cumberland Local Environmental Plan 2021, cll 2.3, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2, 6.4, 6.7, 6.12. Environmental Planning and Assessment Regulation, ss 23, 37, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.5, 6.6, 6,7. 6,8, 6.9, 6.10, 6.11 State Environmental Planning Policy (Hazards and Resilience) 2021, s 4.6 State Environmental Planning Policy (Housing) 2021, ss 23, 24, 25, 26, 27, 68, 69, 70 State Environmental Planning Policy (Sustainable Buildings) 2021, Ch 2
Cases Cited:	Wehbe v Pittwater Council [2007] NSWLEC 827
Texts Cited:	Apartment Design Guide
Category:	Principal judgment
Parties:	YY Property Development Pty Ltd (Applicant) Cumberland Council (Respondent)
Representation:	Counsel: G McKee (Solicitor) (Applicant) C S R McFadzean (Solicitor) (Respondent) Solicitors: McKee Lawyers (Applicant) Cumberland Council (Respondent)
File Number(s):	2025/00017127
Publication restriction:	Nil