Cumming v Cumberland Council (No 2) [2021] NSWLEC 117

Cumming v Cumberland Council (No 2) [2021] NSWLEC 117

The Commissioner erred in law by failing to confine consideration under cl 4.6(3)(b) of the Auburn Local Environmental Plan 2010 to matters directly relevant to the breach of the height development standard. Instead, the Commissioner relied on extraneous factors, particularly site setbacks and the potential impact on future development of adjacent land, which were unrelated to the proposed contravention. This erroneous approach led to his refusal of the applicant's request for dispensation and dismissal of the development appeal, warranting the appeal being upheld and a remitter to a different Commissioner.

Parties
Applicant: John Cumming; Respondent: Cumberland Council
Jurisdiction
Australia
Judgment Date
02 November 2021
Procedural Posture
Appeal / Judgment on Appeal From Commissioner to Judge Under S 56 a Land and Environment Court Act 1979
Outcome
Appeal upheld; orders below set aside; matter remitted to a different Commissioner; costs to be determined if sought within 21 days, else no order as to costs.
Legal Topics
Development Application, Boarding House Approval, Variation of Development Standards, Local Environmental Plan, Clause 4.6 Request, Height Standard, Appeal on Question of Law, Remitter, Exclusionary Remitter, Costs
Planning and Environment Law Development Application Boarding House Approval Variation of Development Standards Local Environmental Plan Clause 4.6 Request Height Standard Appeal on Question of Law +3 more

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Parties

John Cumming

Applicant

Cumberland Council

Respondent

Procedural Posture

Appeal / Judgment on Appeal From Commissioner to Judge Under S 56 a Land and Environment Court Act 1979

Legal Issues

  1. 1 Whether the Commissioner erred in law by having regard to irrelevant matters in determining whether there were sufficient environmental planning grounds to justify contravention of the height development standard under cl 4.6(3)(b) of the Auburn Local Environmental Plan 2010.
  2. 2 Whether the Commissioner erred in applying setback and Apartment Design Guide (ADG) requirements that do not apply to boarding houses under SEPP 65.
  3. 3 Whether the Commissioner erred in finding the proposal incompatible with local character due to its effect on redevelopment capacity of adjoining land.

Ratio Decidendi

The Commissioner erred in law by failing to confine consideration under cl 4.6(3)(b) of the Auburn Local Environmental Plan 2010 to matters directly relevant to the breach of the height development standard. Instead, the Commissioner relied on extraneous factors, particularly site setbacks and the potential impact on future development of adjacent land, which were unrelated to the proposed contravention. This erroneous approach led to his refusal of the applicant's request for dispensation and dismissal of the development appeal, warranting the appeal being upheld and a remitter to a different Commissioner.

Court Disposition

Appeal upheld; orders below set aside; matter remitted to a different Commissioner; costs to be determined if sought within 21 days, else no order as to costs.

Orders

  • The appeal pursuant to s 56A of the Land and Environment Court Act 1979 is upheld.
  • Orders 1 and 2 of the Court below are set aside.