AD Maiora Natus Sum Pty Limited v Cumberland Council [2018] NSWLEC 1563

Land and Environment Court New South Wales

Medium Neutral Citation: AD Maiora Natus Sum Pty Limited v Cumberland Council [2018] NSWLEC 1563 Hearing dates: 19 October 2018 Date of orders: 19 October 2018 Decision date: 19 October 2018 Jurisdiction: Class 1 Before: Dixon SC Decision: The appeal is dismissed. Catchwords: APPEAL: refusal of development application for shop top housing – constrained site – relaxation of the parking requirements for commercial and visitor parking – parking for residents inadequate Legislation Cited: Auburn Local Environment Plan 2010 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Cases Cited: Nil Texts Cited: Apartment Design Guide AS/NZS 2890.1:2004 Auburn Development Control Plan 2010 Category: Principal judgment Parties: AD Maiora Natus Sum Pty Limited (Applicant) Cumberland Council (Respondent) Representation: Solicitors: G McKee, McKees Legal Solutions (Applicant) C Gough, Storey & Gough (Respondent) File Number(s): 2018/77613 Publication restriction: No

EX TEMPORE Judgment

Background 1. The applicant seeks consent to develop a shop top housing development comprising four residential units over one commercial tenancy with four (4) car parking spaces in a private car park. 2. The details of the development application (DA 427/2017) (DA) are set out in the amended plans filed with the Court on 23 July 2018. The amendments followed the termination of a section 34 conciliation conference which I facilitated earlier this year. The parties have now requested that I determine the matter, having regard to the amended design and the evidence taken during the section 34 conference together with further evidence now before the Court. 3. The background detail including the facts and statutory controls are set out in the Council's Amended Statement of Facts and Contentions filed on 1 August 2018 which has been marked 'Exhibit A'. I do not need to repeat that detail save to note that there is no dispute between the parties that the subject site at 50 Amy Street, Regents Park is located within the Regents Park Commercial Centre which is identified as a Local Centre and that the proposed use is permissible with consent within the 2B Local Centre zone under the Auburn Local Environment Plan 2010. 4. It is also agreed that this narrow site - which has a primary frontage to Amy Street and a secondary frontage to Mimulus Lane and a land area of 278m2 is constrained and this fact should be afforded some consideration in the assessment of this application.