Broadview Group Pty Ltd v Cumberland Council [2017] NSWLEC 1467

Broadview Group Pty Ltd v Cumberland Council [2017] NSWLEC 1467

The Court upheld the appeal because the applicant's cl 4.6 written request justified contravention of the 36m height standard, the Council's actions and strategic work had effectively abandoned that standard for the site, the proposed 45m height for Precinct 9 had not been sufficiently analysed or adopted as a new standard, and the proposal was consistent with the B4 zone objectives and height objectives because it achieved appropriate development density within the 5:1 FSR framework and was compatible with the emerging character of Auburn Town Centre as tower forms over podiums.

Jurisdiction
Australia
Judgment Date
29 August 2017
Procedural Posture
Class 1 Appeal Under S 97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 48/2017 / Principal Judgment After Mandatory Conciliation Under S 34 of the Land and Environment Court Act 1979 Was Terminated Without Agreement
Outcome
Appeal upheld; Development Application No. 48/2017 approved subject to conditions of consent at Annexure A.
Legal Topics
['development Application Appeal' 'height of Buildings Development Standard' 'clause 4.6 Variation' 'auburn Town Centre Strategic Planning' 'residential Apartment Development']
['planning and Environment' 'development Consent'] ['development Application Appeal' 'height of Buildings Development Standard' 'clause 4.6 Variation' 'auburn Town Centre Strategic Planning' 'residential Apartment Development']

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Procedural Posture

Class 1 Appeal Under S 97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 48/2017 / Principal Judgment After Mandatory Conciliation Under S 34 of the Land and Environment Court Act 1979 Was Terminated Without Agreement

Legal Issues

  1. 1 ["Whether the proposal's contravention of the 36m height of buildings development standard could be justified under cl 4.6 of Auburn Local Environmental Plan 2010." "Whether the height of buildings development standard had been effectively abandoned by the Council's own actions." 'Whether the proposed 45m maximum height for Precinct 9 in the Draft Auburn and Lidcombe Town Centres Strategy was the new standard to be applied.' 'Whether the additional levels would have an adverse impact on the character of the locality by adding significantly to the bulk, scale and density of the development.']

Ratio Decidendi

The Court upheld the appeal because the applicant's cl 4.6 written request justified contravention of the 36m height standard, the Council's actions and strategic work had effectively abandoned that standard for the site, the proposed 45m height for Precinct 9 had not been sufficiently analysed or adopted as a new standard, and the proposal was consistent with the B4 zone objectives and height objectives because it achieved appropriate development density within the 5:1 FSR framework and was compatible with the emerging character of Auburn Town Centre as tower forms over podiums.

Court Disposition

Appeal upheld; Development Application No. 48/2017 approved subject to conditions of consent at Annexure A.

Orders

  • ['The appeal is upheld.' 'Development Application No. 48/2017, to add three additional levels of residential apartments to Tower A and two additional levels of residential apartments and a communal open area to Tower B and modify basement levels, of an approved development, at 95-105 Auburn Road and 18 Harrow Road,...