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

Land and Environment Court New South Wales

Medium Neutral Citation: Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 Hearing dates: 12 October 2021 Date of orders: 2 November 2021 Decision date: 02 November 2021 Jurisdiction: Class 1 Before: Moore J Decision: See orders and directions at [92] Catchwords: APPEAL - refusal of development application for boarding house - proposal exceeds the permitted height in local environmental plan - application for dispensation to comply with height requirement - dispensation application rejected on the basis insufficient planning grounds established - appeal against refusal on a question of law - tests for dispensation application confined to consideration of the breach of the height standard - Commissioner's refusal of dispensation request based on grounds not related to the proposed height breach - appeal upheld REMITTER - exclusionary remitter sought - exclusionary remitter appropriate COSTS - submitting appearance from consent authority except as to costs - costs ordinarily follow the event - early submitting appearance and lack of contradictor on appeal - no order for costs unless applicant applies within 14 days to order otherwise Legislation Cited: Auburn Local Environmental Plan 2010, cl 4.6 Land and Environment Court Act 1979, s 56A Standard Instrument (Local Environmental Plans) Order 2006 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 4(4) Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339 Brimbella Pty Ltd v Mosman Municipal Council (1993) 79 LGERA 367 Cumming v Cumberland Council [2021] NSWLEC 1330 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Category: Principal judgment Parties: John Cumming (Applicant) Cumberland Council (Respondent) Representation: Counsel: Mr A Galasso SC (Applicant) Submitting appearance (Respondent)