Barhoum v Cumberland Council

Catchwords: APPEAL – development application – conciliation conference – agreement reached – orders made

Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15
Land and Environment Court Act 1979, s 34
Cumberland Local Environmental Plan 2021, cll 2.7, 4.1, 4.1AA, 4.6, 6.4, 6.7, 6.9, 6.12
Environmental Planning and Assessment Regulation 2021, s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10
State Environmental Planning Policy (Housing) 2021, ss 49, 50, 51, 52, 53
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Cumberland Development Control Plan 2021

Category: Principal judgment

Parties: Bernadette Barhoum (Applicant)
Cumberland Council (Respondent)

Representation: Counsel:
B Barhoum (Solicitor) (Applicant)
C McFadzean (Solicitor) (Respondent)
Solicitors:
Lawfirm Pty Ltd (Applicant)
Cumberland Council (Respondent)

File Number(s): 2025/423818

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the decision of Cumberland Local Planning Panel to refuse Development Application No. DA2024/0715 (DA). The DA relates to land known as Lots 100 and 101 in DP 1116199 with street addresses of 110 and 112 Girraween Road, Girraween (site).

2. The DA seeks consent for demolition of an existing dwelling; partial demolition of a secondary dwelling by the removal of the oven, stove top and range hood; subdivision of two lots into three (including registration) and the construction of semi-detached dwellings on two of those lots; demolition of garage doors and replacement with new walls and windows to establish two studio rooms, one ancillary to each semi-detached dwelling as a first stage. Internal works to the two studios to establish two secondary dwellings as a second stage, that second stage taking place following the release of an occupation certificate for the semi-detached dwellings and registration of the subdivision.

Conciliation brings agreement based on amending plans and supporting material

3. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 27 March 2026, and at which I presided.

4. Prior to the conference, the parties had come to an agreement in relation to the terms of a decision in the proceedings that would be acceptable to the parties. The parties’ decision would involve the Court upholding the appeal and granting development consent to the DA, in accordance with agreed conditions of consent.

Examining questions relating to jurisdictional power to uphold the appeal

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreed decision, provided it is a decision that the Court could have made in the proper exercise of its functions. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [63],[65]).

6. It is my finding that there are no such constraints. A jurisdictional note provided to the Court on 25 March 2026, explaining why the parties believe upholding the appeal is in this instance within the Court’s power, has been of assistance here. Relevant matters relating to enabling this jurisdictional power are outlined below.

Cumberland Local Environmental Plan 2021

7. The site is zoned R2 Low Density Residential under Cumberland Local Environmental Plan 2021 (CLEP) and the parties advise that the zone objectives have been considered. There is no dispute that semi-detached dwellings are permissible with consent in the R2 zone. While secondary dwellings are prohibited under CLEP land use table, this is overridden by relevant provisions under State Environmental Planning Policy (Housing) 2021 (see [15]). Demolition is permissible under cl 2.7 of the CLEP.

8. Under cl 4.1(2), the minimum lot size applicable to a site is 450 m². The proposed subdivision would not meet that standard (the existing lot size is nominated as 742m2) However, cl 4.1AA provides exception provisions to this minimum lot size where the subdivision is for the purposes of dual occupancies or semi-detached dwellings. The parties advise that the proposal meets the requirements of cl 4.1AA.

9. In relation to cl 6.4 and essential services, I accept the parties’ advice that each of the particular nominated essential services are available or that adequate arrangements have been made to make them available when required.

10. In relation to cl 6.7 and stormwater, I note the parties’ explanation of their consideration and agreement; which is essentially that the matters at cl 6.7(2) have been satisfied. I accept this advice.

11. In relation to cl 6.9 and salinity, I again note the parties' explanation of their consideration and agreement; which is essentially that the development will not involve a significant adverse environmental impact and as such minimisation and mitigation techniques are not required. I accept this advice and therefore cl 6.9(4) is satisfied.

12. While no further jurisdictional findings are required in relation to CLEP, the parties’ jurisdictional note indicates how Council has considered all other relevant matters under this instrument, including in relation to cl 6.12 and urban heat.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. Section 4.6 is concerned with contamination and remediation. I accept the advice of the parties that, based upon the historic residential use of the land, it can be reasonably found that the land is not contaminated and does not require remediation work to make it suitable for the proposed use. On this basis, I am satisfied with respect to the requirements of s 4.6.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

14. The site is within the Sydney Harbour Catchment area and Ch 6 applies. In the jurisdictional note, the parties work through the various technical matters of relevance with respect to ss 6.6 to 6.10 and their conclusions which have the effect of finding that the quantity and quality of water will be managed at acceptable levels such that the quality of water entering natural waterbodies will be as close as possible to neutral or beneficial, and the impact on flow will not have any detrimental effect on natural waterbodies. I also note the advice from the parties that the site is not flood liable land and, given its location, will not affect public access to or from natural water bodies for recreational purposes. Given the advice of the parties on the range of relevant technical matters, I can conclude that I am satisfied with respect to the requirements of ss 6.6(2), 6.7(2) and 6.9(2) and that relevant consideration has been given to s 6.10 and that the trigger for consultation with adjacent or downstream local government areas has not been reached.

State Environmental Planning Policy (Housing) 2021

15. The parties advise and I accept that under ss 49 and 50, if a dwelling house is permitted in the R2 Low Density Residential zone, as is the case for CLEP, then a secondary dwelling is permissible with consent. The parties advise that the requirements at s 52(2) have been met in this instance as:

16. no dwellings, other than the principal dwelling and the secondary dwelling, will be located on the land, and

17. the total floor area of the secondary dwelling is no more than 60m2.

18. In this instance, s 52(2)(b) does not apply as there are no related floor space controls.

19. The parties also advise that, consistent with s 51, subdivision is not proposed of the (proposed and to be registered) lot on which each secondary dwelling is proposed.

20. Section 53(2)(a) provides for a non-discretionary development standard of a minimum site area of 450m2 for a detached secondary dwelling. In this proposal, proposed lot 1 is 381.1m2 and proposed lot 2 is 380.18m2. The applicant relies on cl 4.6 of CLEP, which provides that development consent may be granted even though the development would contravene a development standard. It is cl 4.6(3) of CLEP which establishes the essential precondition to the exercise of the function to grant consent even though the development would contravene a development standard:

(3) Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that—

(a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and

(b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

19. This facilitative function of cl 4.6 of CLEP is subject to certain preconditions which I attend to now. In accordance with the Environmental Planning and Assessment Regulation 2021, the DA, as amended, is accompanied by documentation prepared by Think Planners dated 2 March 2026 (Think Planners documentation) setting out the grounds upon which the applicant seeks to demonstrate the requirements of cl 4.6(3) have been met, notwithstanding the contravention. Council has indicated that it endorses the application of cl 4.6 in this instance and that the Think Planners documentation effectively demonstrates that the two tests relating to cll 4.6(3)(a) and 4.6(3)(b) have been satisfied. As I explain below, I agree with Council.

20. The Think Planners documentation argues that compliance with the standard is unreasonable or unnecessary as the proposal complies with the objectives of the standard. I accept that the objective of the standard is to ensure that detached secondary dwellings are located on sites of sufficient size to maintain residential amenity, avoid overdevelopment and preserve relevant character. There is a capacity to achieve these objectives with the proposed lot sizes and this is clear from the fact that Cumberland Development Control Plan 2021 adopts a minimum lot size for secondary dwellings of 380m2; and through an examination of the proposed layouts.

21. The Think Planners documentation also outlines sufficient planning grounds to justify the contravention. This is through explaining how the proposal complies with other related controls (height, floor space, landscaping, private open space, solar access and boundary setback).

22. The applicant has demonstrated through the Think Planners documentation that, even though the development would contravene a development standard, the essential preconditions to enable the function to grant consent to be exercised (as per cl 4.6(3) of CLEP), have been met.

Other matters

23. The parties advise that the DA was notified in accordance with requirements with two objecting submissions received. The parties believe the concerns raised have been reasonably addressed, pointing to proposed consent conditions 20, 21 and 96, which essentially relate to ensuring protection of neighbouring development.

24. The parties also explain in the jurisdictional note how all other relevant matters in s 4.15(1) of the EPA Act have been given appropriate consideration.

Conclusion

25. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

26. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

27. The Court notes:

28. That Cumberland Council as the relevant consent authority has agreed, under section 38(1) of the Environmental Planning and Assessment Regulation 2021 to the applicant amending Development Application No. DA2024/0715, in accordance with the following documents:

(a) Architectural Plans prepared by Design Corp Architects, Issue G, dated 25 February 2026; (b) Statement of Environmental Effects prepared by Think Planners Pty Ltd, dated 3 March 2026; (c) Clause 4.6 Variation Request Minimum Site Area prepared by Think Planners Pty Ltd, dated 2 March 2026; (d) Landscape Plan prepared by PlanDrew, Issue B, dated 1 March 2026; (e) Stormwater Plans prepared by Capital Engineering Consultants, Revision C, dated 26 February 2026; and (f) BASIX Certificate No. 1829766S prepared by Angela Georges, dated 21 January 2026; and (g) BASIX Certificate No. 1829769S prepared by Angela Georges, dated 21 January 2026.

Orders

28. The Court orders that:

29. The applicant is granted leave to file the amended documents listed at [27].

30. The appeal is upheld.

31. Development Application No. DA2024/0715, for demolition of an existing dwelling; partial demolition of a secondary dwelling by the removal of the oven, stove top and range hood; subdivision of two lots into three (including registration) and the construction of semi-detached dwellings on two of those lots; demolition of garage doors and replacement with new walls and windows to establish two studio rooms, one ancillary to each semi-detached dwelling as a first stage. Internal works to the two studios to establish two secondary dwellings as a second stage, that second stage taking place following the release of an Occupation Certificate for the semi-detached dwellings and registration of the subdivision in the first stage on the land at 110 and 112 Girraween Road, Girraween NSW 2145 (Lots 100 and 101 in DP 1116199), is determined by the grant of consent, subject to the conditions of consent in Annexure A.

32. The applicant is to pay the respondent's renotification and costs thrown away as a result of the amendment pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, agreed in the sum of $1,000.00 inclusive of GST, such costs to be paid within 28 days of these orders being made.

P Walsh

Commissioner of the Court

Annexure A (312 KB, pdf)

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