ABC Planning Pty Ltd v Cumberland Council [2019] NSWLEC 1278

ABC Planning Pty Ltd v Cumberland Council [2019] NSWLEC 1278

The Court found that while the proposed development does not strictly comply with the indicative layout in Figure 5 of the Auburn Development Control Plan 2010, the circumstances of non-amalgamation were justified due to bona fide but unsuccessful negotiations and absence of an amalgamation obligation in the current LEP. The proposal does not inhibit orderly and economic future development of the neighbouring isolated sites, the absence of on-site stormwater detention is justified due to the sufficiency of the regional stormwater storage, and the street wall height is contextually appropriate and consistent with the planning objectives. Consequently, development consent should be granted...

Parties
Applicant: ABC Planning Pty Ltd; Respondent: Cumberland Council
Jurisdiction
Australia
Judgment Date
13 August 2019
Procedural Posture
Class 1 Appeal / Final Decision and Orders
Outcome
Appeal upheld; development consent granted
Legal Topics
Development Application, Site Amalgamation, Stormwater Detention, Street Wall Height, Urban Design, Development Control Plan
Planning Law Environmental Law Development Application Site Amalgamation Stormwater Detention Street Wall Height Urban Design Development Control Plan

Case Brief

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Parties

ABC Planning Pty Ltd

Applicant

Cumberland Council

Respondent

Procedural Posture

Class 1 Appeal / Final Decision and Orders

Legal Issues

  1. 1 Whether the proposed development should be granted consent despite not all sites being amalgamated as depicted in the development control plan
  2. 2 Whether site isolation of neighbouring properties would result
  3. 3 Whether on-site detention of stormwater is necessary or a direct connection to regional stormwater is sufficient

Ratio Decidendi

The Court found that while the proposed development does not strictly comply with the indicative layout in Figure 5 of the Auburn Development Control Plan 2010, the circumstances of non-amalgamation were justified due to bona fide but unsuccessful negotiations and absence of an amalgamation obligation in the current LEP. The proposal does not inhibit orderly and economic future development of the neighbouring isolated sites, the absence of on-site stormwater detention is justified due to the sufficiency of the regional stormwater storage, and the street wall height is contextually appropriate and consistent with the planning objectives. Consequently, development consent should be granted...

Court Disposition

Appeal upheld; development consent granted

Orders

  • The appeal is upheld.
  • Consent is granted to DA 307/2017 for the demolition of existing structures and construction of a mixed-use development comprising three residential towers, three levels of retail/commercial uses, four levels of basement parking, alterations and additions to the Village Tavern on the corner of Queen Street and...