CJQ Constructions Pty Ltd v Cumberland Council

Cases Cited: Cumming v Cumberland Council (No 2) [2021] NSWLEC 117
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Category: Principal judgment

Parties: CJQ Constructions Pty Ltd (Applicant)
Cumberland Council (Respondent)

Representation: Counsel:
G McKee (Solicitor) (Applicant)
C McFadzean (Solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Cumberland Council (Respondent)

File Number(s): 2025/288887

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No DA2025/0322 for demolition of existing structures and the erection of a co-living housing building containing 67 double bedrooms (the proposal), at 76-80 Berwick Street, Guildford (Lots K, L and M in DP 10962) (the site), by Cumberland Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 11 December 2025. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

3. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW). The plans and documents comprising the amended application are as follows:

| Reference / Dwg No. | Title/Description | Prepared By | Date/s | | A005, Rev D | Site Plan | Texco Design | 26/11/2025 | | A008, Rev D | GFA Calculation | | A010, Rev D | Communal Living Area | | A011, Rev D | Communal Open Space | | A012, Rev D | Landscape Calculation | | A013, Rev D | Deep Soil Calculation | | A015, Rev D | Sune Eye Diagram Proposed – 21st June | | A017, Rev D | Shadow Diagram Proposed – 21st June | | A019, Rev D | Height Limit Diagram | | A101, Rev D | Basement Plan | | A102, Rev D | Ground Floor Plan | | A103, Rev D | Level 1 Plan | | A104, Rev D | Level 2 Plan | | A105, Rev D | Level 3 Plan | | A106, Rev D | Level 4 Plan | | A107, Rev D | Roof Plan | | A201, Rev D | North & South Elevation | | A202, Rev D | West Elevation & East Elevation | | A301, Rev D | Section A | | A302, Rev D | Section B | | A303, Rev D | Ramp Section | | A401, Rev B | Material Schedule | 17/10/2025 | | A403, Rev D | Windows Schedule | 26/11/2025 | | A404, Rev D | Typical Kitchen Details | | SW100, Rev 2 | Cover Sheet | JCO Consultants Pty Ltd | 23/10/2025 | | SW101, Rev 2 | General Notes And Specifications | | SW200, Rev 2 | Stormwater Concept Design - Basemen | | SW201, Rev 2 | Stormwater Concept Design - Ground Floor | | SW202, Rev 2 | Stormwater Concept Design - Level 1 | | SW203, Rev 2 | Stormwater Concept Design - Roof | | SW300, Rev 2 | Details Sheet 1 | | SW301, Rev 2 | Details Sheet 2 | | SW600, Rev 2 | Erosion And Sediment Control Plan & Details | | - | Clause 4.6 Variation Request – Height of Buildings development standard | Planning Ingenuity | 5 December 2025 | | PKA12949 R02v1 | Addendum to DA Acoustic Report | PKA Acoustic Consulting | 4 December 2025 |

Pre-conditions to the grant of consent

State Environmental Planning Policy (Transport and Infrastructure) 2021

5. The site is located within 5m of a pole supporting an exposed overhead electricity power line. Consistent with s 2.48(2)(a) of the State Environmental Planning Policy (Transport and Infrastructure) 2021, written notice was given to Endeavour Energy. Comments were received, and considered, in response to the effect that Endeavour Energy raised no objection subject to conditions.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

6. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies as the site is within the Sydney Harbour Catchment area. In relation to s 6.6(1) considerations, I accept the Council’s assessment, as follows:

(a) subject to the installation and maintenance of sediment controls during building works in accordance with the Erosion and Sediment Control Plan & Details drawing SW600 Rev 2 by JCO Consultants Pty Ltd, dated 23 October 2025 and conditions of consent, the development will have a neutral effect on the quality of water entering a waterway, (b) the development will not have an adverse impact on water flow in a natural waterbody, (c) the development is unlikely to increase stormwater runoff from the site in any significant or unacceptable manner, (d) the development does not incorporate on-site stormwater retention, infiltration or reuse, (e) the development will have no impact on the level and quality of the water table, (f) cumulative environmental impacts from the development on the regulated catchment are negligible, and (g) having regard to the extent of excavation proposed, no specific measures are required to protect the quality and quantity of groundwater.

7. In relation to s 6.6(2) considerations, I accept the Council’s assessment, as follows:

(a) the effect on the quality of water entering a natural waterbody will be as close as possible to neutral, and (b) the development has negligible and satisfactory water flow impacts for a natural waterbody.

8. In relation to s 6.7(1) considerations, I accept the Council’s assessment, as follows:

(a) to the extent of any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, the impact is minor and not determinative of the application, (b) the development does not involve the clearing of riparian vegetation, (c) the development will not involve sedimentation of a natural waterbody or erosion of land abutting a natural waterway, (d) the development will not have an adverse impact on wetlands, (e) the development will not impact aquatic ecology and therefore does not require safeguards and rehabilitation measures, (f) the development does not adjoin a natural waterbody,

9. In relation to s 6.7(2) criteria, I accept the Council’s assessment, as follows:

(a) any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development, (b) the development will not have a direct, indirect or cumulative adverse impact on aquatic reserves, (c) no approval or permit is required under the Water Management Act 2000 (NSW) or the Fisheries Management Act 1994 (NSW), (d) the land does not abut a natural waterbody, and (e) there will be no adverse impact on wetlands.

10. In relation to s 6.8(1) considerations, I accept the Council’s assessment is that the development will have no impact on periodic flooding that benefits wetlands and other riverine ecosystems.

11. In relation to s 6.8(2) criteria, I accept the Council’s assessment that the development:

(a) will not result in a release of pollutants in the event of a flood, and (b) will not have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems.

12. In relation to s 6.9(1) considerations, I accept the Council’s assessment, as follows:

(a) the development will have no impact on recreational land uses in the Sydney Harbour Catchment, and (b) the development has no impact on public access to and around foreshores.

13. In relation to s 6.9(2) criteria, I accept the Council’s assessment, as follows:

(a) the development has no impact on public access to and from natural waterbodies for recreational purposes, (b) the development does not involve new or existing points of public access to natural waterbodies, and (c) the land does not form part of a foreshore of a natural waterbody.

14. In relation to s 6.10, I accept the Council’s assessment that the development will not have an adverse environmental impact for adjacent and downstream local government areas.

State Environmental Planning Policy (Resilience and Hazards) 2021

15. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, a Preliminary Site Investigation (PSI) has been submitted with the application. The PSI concludes that the potential risks to human health and the environment to be very low to negligible. I accept the Council’s assessment that the site is considered suitable for the proposed development.

State Environmental Planning Policy (Housing) 2021

16. Co-living housing is permissible with consent pursuant to s 67(b) of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) by virtue of residential flat buildings and shop top housing being permitted in the R4 zone under the Cumberland Local Environmental Plan 2021 (LEP 2012).

17. Section 68 of the Housing SEPP contains minimum standards that cannot be used to refuse consent. The development conforms to those standards as detailed below:

| Element | Standard | Proposed | Reference | | Floor space ratio | 1.2:1 + 10% if the additional floor space is used only for co-living | 1.32:1 | Drawing A008 rev D | | Communal living area | 152m2 with a 3m minimum dimension | 155.7m2 all at >3m | Drawing A010 rev D | | Communal open space | 306.6m2 with a 3m minimum dimension | 624.8m2 all at >3m | Drawing A011 rev D shows 564.8m2. In addition, there is an area to the south of the building that contributes to communal open space. | | Parking | 14 spaces | 14 spaces | Drawing A101 rev D | | Landscaping | 7% at 3m wide | 43% | Drawing A012 rev D shows 46.57% but that includes portions less than 3m wide. |

18. Section 69(1) of the Housing SEPP contains development standards and other subjective standards for co-living housing developments. The development conforms to those standards as detailed below:

| Element | Standard | Proposed | Reference | | Room size (exc kitchen and bathroom) | 16m2 to 25m2 | 16.03m2 – 20.88m2 | Drawings A102 to A106, all rev D | | Lot size | 800m2 minimum | 1,533m2 | Survey drawing 6001250_A | | Workspace for manager | Provided within the communal living area or in a separate space | Provided within the ground floor communal living area | Drawing A102 rev D | | Facilities | Adequate bathroom, laundry and kitchen facilities will be available for the use of each occupant | Adequate bathroom, laundry and kitchen facilities will be available for the use of each occupant | Drawings A102 to A106 all rev D and A404 rev B | | Maximum occupants | 2 per room | 2 | Drawings A102 to A106, all rev D | | Bicycle and motor bike parking | Provide adequate number of parking spaces | Adequate – 18 bicycle and 13 motor bike spaces | Drawing A101 rev D |

19. Section 69(2) of the Housing SEPP specifies matters that must be considered before development consent can be granted. Each matter has been considered, as summarised below, and found to be satisfactory by the parties.

| Element | Control | Proposed | Reference | | Setbacks | Front - No less than 6m or correspond with prevalent setback or emerging setbacks Side – 3m minimum Rear first 4 storeys – 6.7m Rear from 5th storey – 10m | Front –7.4m Side (north) – 6.8m Side (south) – 6m Rear – 8.05m | Drawing A103 to A106, all rev D | | Building Separation | Habitable up to 4 storeys – 6m Habitable above 4 storeys – 9m | North Up to 4 storeys habitable – 6.8m Above 4 storeys habitable – 6.8m East Up to 4 storeys habitable – 8.0m Above 4 storeys habitable – 8.0m South Up to 4 storeys habitable – 6.0m Above 4 storeys habitable – 6.0m | Drawing A103 to A106, all rev D | | Solar access | 3 hours direct solar access between 9am to 3pm at mid-winter to at least 1 communal living area | 6 hours for all communal living areas | Drawing A015 rev D | | Building design | Compatible with the desired future character of the precinct | Compatible | Drawing A007 rev A |

20. No subdivision of the rooms into separate lots is proposed, consistent with the restriction imposed by s 70 of the Housing SEPP.

Cumberland Local Environmental Plan 2021

21. The site is zoned R4 High Density Residential. Co-living housing, as a subset of residential accommodation, is prohibited within the zone. The proposal is permissible under s 67(b) of the Housing SEPP.

22. The R4 zone objectives, to which regard must be had, are:

To provide for the housing needs of the community within a high density residential environment.

To provide a variety of housing types within a high density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To ensure that non-residential land uses are located in a setting that minimises impacts on the amenity of a high density residential environment.

To encourage residential development that maintains the amenity of the surrounding area.

23. Demolition of the existing buildings is permitted with consent pursuant to cl 2.7 of the Cumberland Local Environmental Plan 2021 (CLEP).

24. Pursuant to cl 4.3, a maximum building height of 15m applies to the site. The building height measured at the lift overrun is 16.12m (Dwg A019 rev D). Elsewhere, the maximum building height is 15.47m.

25. Pursuant to clause 4.4, a maximum floor space ratio of 1.2:1 applies to the site. However, that is subject to a 10% bonus under s 68(2)(a) of the Housing SEPP, resulting in a maximum permissible FSR of 1.32:1. The proposed floor space ratio is 1.32:1 (Dwg A008 rev D).

26. Development consent is required under cl 6.2 for the proposed basement excavation earthworks. In relation to the criteria under cl 6.2(3), I accept the Council’s assessment, as follows:

27. The development will not generally disrupt or detrimentally affect drainage patterns or soil stability in the locality in any meaningful way that is attributable to proposed earthworks.

28. The excavation is part of the proposed redevelopment of the site and will not of itself stymie the future use or redevelopment.

29. The quality of soil to be excavated of is de minimis importance and not of determinative weight. Conditions of consent ensure the use of clean fill and disposal of excavated material to an appropriate destination.

30. The proposed excavation will not detrimentally affect existing and likely amenity of adjoining properties.

31. The likelihood of disturbing relics is low.

32. The site will not have adverse impacts on a waterway, drinking water catchment or environmentally sensitive area. The prospect of any adverse impacts on such areas can be managed by conditions, including the provision and maintenance of sediment and erosion control measures.

33. Sediment and erosion control measures implemented during excavation will mitigate potential impacts stemming from the development.

34. Clause 6.4 requires the consent authority to be satisfied that various essential services are available or that adequate arrangements have been made to make them available. Consistent with cl 6.4, the Council is satisfied that water supply, electricity supply, sewage disposal, stormwater drainage and suitable vehicular access are available or that adequate arrangements can be made to make them available.

35. Clause 6.7 provides stormwater management controls. In relation to considerations under cl 6.7(2), I accept the Council’s assessment, as follows:

36. the extent of water permeable surfaces are within reasonable expectations; and

37. onsite stormwater retention is not proposed and not found to be necessary, and

38. adverse impacts of stormwater runoff on adjoining properties, native vegetation and receiving waters, to the extent they arise, can be minimised and mitigated by conditions, including by the provision of sediment and erosion controls on the earthworks and construction stages.

39. The site is marked on the Salinity Map as 'Potential Moderate Salinity Land'. In relation to subcll 6.9(3) and (4), I accept the Council’s assessment, as follows:

40. the development is not likely to have an adverse impact on salinity processes on the land;

41. salinity is not likely to have an impact on the development in any meaningful way; and

42. the development's ground floor siting at Australian Height Datum 35.35 and its positioning within the topographic catchment will avoid any potential significant adverse environmental impact with regard to salinity, meaning that no specific design measures are warranted to avoid salinity impacts.

43. In relation to cl 6.12(2) 'Urban heat', I accept the Council’s assessment, as follows:

44. The proposed facade, roof, paved surfaces, minimal awnings and eaves have not been designed to reduce adverse effects of solar heat on the surrounding land, including private open space and the public domain at street level. Notwithstanding and having regard to other matters described at subcll (c) to (f) below, the development's overall urban heat performance is satisfactory.

45. The heating, ventilation and air conditioning systems of the building can be designed or conditioned to minimise the release of heat in the direction of private open space and the public domain.

46. Green infrastructure is defined to mean the network of green spaces, natural systems and semi-natural systems that support sustainable communities and includes waterways, bushland, tree canopy and green ground cover, parks and open spaces. On a development site of the size proposed in an established urban environment, the respondent's expectations for green infrastructure are confined to a satisfactory provision of tree canopy and green ground cover. On that more confined criteria, the parties are satisfied that there is sufficient existing and proposed tree canopy and green ground cover.

47. The building is designed to achieve passive thermal performance.

Contravention of the height of buildings development standard

31. The proposal has a maximum building height of 16.12m (Dwg A019 rev D). Elsewhere, the maximum building height is 15.47m. The height of buildings development standard for the site is 15m.

32. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard, prepared by Planning Ingenuity and dated 10 December 2025.

33. Clause 4.6(3) of the CLEP establishes preconditions that must be satisfied before a consent authority, or the Court exercising the functions of a consent authority, can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] (“Initial Action”)). The consent authority must form two positive opinions of satisfaction under cl 4.6(3). The consent authority, or the Court on appeal, must be satisfied 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.

The applicant’s written request to contravene the height of buildings development standard

34. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction.

35. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]:

36. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

37. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

38. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

39. the development standard has been abandoned by the council;

40. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

41. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).

42. The applicant’s written request justifies the contravention of the height of buildings development standard on the bases that compliance is unreasonable or unnecessary because the proposed building envelope is a result of the FSR development standard under CLEP combined with the bonus FSR under the Housing SEPP. The exceedance of the height of buildings development standard is limited to the lift overrun and a portion of the roof structure.

43. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the EPA Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

44. I am satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). I am satisfied that justifying the aspect of the development that contravenes the development standard as a result of accommodating the combined FSR under CLEP and the bonus under the Housing SEPP on the site in a manner that is compatible with the surrounding development can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Conclusion

40. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 11 December 2025 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

41. The applicant's written request pursuant to cl 4.6 of CLEP seeking a variation to the height of buildings development standard under cl 4.3 of the LEP 2021 is upheld.

Orders

42. The orders of the Court are:

43. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the costs of the respondent that are thrown away as a result of amending the Development Application in the agreed amount of $2,000 to be paid within 28 days of the date of these orders.

44. The Appeal is upheld.

45. Development Application No DA2025/0322 for demolition of existing structures and the erection of a co-living housing building containing 67 double bedrooms at Lots K, L and M in DP 10962, being No 76-80 Berwick Street, Guildford, is determined by the grant of consent, subject to the conditions set out in Annexure ‘A’ to this agreement.

Susan O’Neill

Commissioner of the Court

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Annexure A (363 KB, pdf)