Cumming v Cumberland Council

Mr Cumming's proposed development

1. The Commissioner described, at [3] to [10] in his judgment, Mr Cumming's proposed boarding house development, the site upon which it was proposed to be erected, and the locality. These paragraphs were in the following terms: 3 The site is legally described as Lot 3 in DP 205554. It is located on the north-western corner of Mary Street and Frederick Street. The site has an area of some 386.2m2, with a frontage of 8.66m to Mary Street (excluding splay), a corner splay of 2.095m and a frontage of 39.005m to Frederick Street (excluding splay). 4 The site falls approximately 1m from the south-western corner to the north-eastern corner at a grade of some 2.4%. 5 The site currently contains a single storey brick dwelling house and a detached garage, along with low to medium-scale shrubbery and fruit trees. 6 The locality includes a variety of development types, including: ● A residential flat building (RFB) with an effective height of 4 storeys adjoining to the immediate west. Development further west predominantly comprises RFBs of 2-4 storeys, interspersed with the occasional dwelling house. There are taller buildings further to the west in the environs of the local centre, including a 9-storey development at 11 John Street, which is situated at the western end of Mary Street. ● A church, childcare centre and nursing home opposite the site on the southern side of Mary Street. ● One and two-storey low density housing along Frederick Street. 7 The site is approximately 460m walking distance from Lidcombe Railway Station and closer again to the Lidcombe town centre. Proposal 8 The proposal provides for demolition of existing structures and construction of a seven-storey boarding house comprising 24 double, self-contained boarding rooms, along with a manager's room, and associated development as indicated below, floor-by-floor (Ex 1 p 1): ● Ground Floor - Manager's room, waste storage room, outdoor communal open space and parking for 6 cars (inclusive of 1 accessible space), 5 motorcycles and 1 bicycle. ● Level 1 - 4 boarding rooms (inclusive of 1 accessible room), fire pump room and a storage room for 5 bicycles. ● Levels 2 and 3 (each) - 5 boarding rooms (inclusive of 1 accessible room). ● Level 4 - 2 boarding rooms, a plant room and a communal room with balcony. One of the boarding rooms is provided with a balcony. ● Levels 5 and 6 (each) - 4 boarding rooms, one of which is provided with a balcony. 9 A floor space ratio (FSR) of 1.81:1 is proposed. The proposed maximum building height, taken to the uppermost portion of the screening to roof plant is 23.09m (Joint Expert Town Planning Report (Ex 2) p 2). 10 The proposed building involves considerable architectural articulation, including a "green wall" element. Certain landscape treatments are proposed along boundaries.
2. There is no controversy in this appeal as to the accuracy of the above descriptions.

The orders originally sought

1. The Summons, filed on 6 July 2021, commencing the appeal against Walsh C's judgment sought the following orders: 1 The appeal pursuant to s 56A of the Land and Environment Court Act 1979 is allowed. 2 Orders 1 and 2 of the court below are set aside. 3 The matter be remitted to be determined according to law. 4 The Respondent is to pay the costs of this appeal.

The Amended Summons

1. At the commencement of the appeal hearing on 12 October 2021, leave was sought to rely on an Amended Summons. I granted leave for this to occur. The Amended Summons deleted proposed order 3 and substituted a proposed exclusionary remitter order, one in the following terms: 3 The matter be remitted to a commissioner other than Commissioner Walsh to be determined according to law.

The appeal grounds

1. The Amended Summons did not seek to alter the three grounds pleaded on behalf of Mr Cumming as said to reveal errors of law on Walsh C's part in reaching his conclusion that Mr Cumming's appeal should be dismissed and his proposed boarding house refused development consent. The grounds of appeal set out in the (now Amended) Summons, and the particulars set out in support of them, were in the following terms: 1 The Commissioner erred in determining the clause 4.6 request by having regard to erroneous matters when considering whether there were sufficient environmental planning grounds in the request to justify contravening the development standard pursuant to clause 4.6(3)(b) of the Auburn Local Environmental Plan 2010 ('ALEP 2010'): Particulars a. having found that the determinative test with respect to the request made pursuant to clause 4.6 of the ALEP 2010 to vary the height of buildings development standard (Exhibit E) was whether the clause 4.6 had adequately addressed the requirement to demonstrate sufficient environmental planning grounds to justify contravening the height of buildings development standard (Judgment [31]), and having also found that there were no unreasonable neighbour physical amenity concerns with the element of the building that contravened the height of building development standard (Judgment [46]): (i) the Commissioner erroneously had regard to whether the subject lot was physically large enough to accommodate the proposal, as a whole (Judgment [46]); (ii) the Commissioner erroneously had regard to evidence in respect of the proposal's site coverage, setbacks, deep soil and landscaping potential (Judgment [47]); (iii) the Commissioner erroneously had regard to the siting of the proposal's height, notwithstanding his preceding finding that the major concern of the proposal was not the building height itself (Judgment [48]); (iv) the Commissioner erroneously found that further evidence was needed to explain the reasons behind the moderate height and FSR increase enjoyed by the subject site in comparison to the further sites to its West on Mary Street (i.e. the intentional "bookending") pursuant to the ALEP 2010 (Judgment [50]-[52]); (v) the Commissioner erroneously had regard to the proposal's impact on the future development potential of the neighbouring property to the west, 28 Mary Street, including by reference to the impediment of that site to achieve separation required by the Apartment Design Guideline ('ADG') (Judgment [58]-[61]); (vi) the Commissioner erred in observing that the proposal would comply with ADG separation if it was about one storey less than proposed (Judgment [61]; (vii) the Commissioner erroneously had regard to the setbacks of the proposal and future separation with 28 Mary Street generally (Judgment [58]-[61]); (viii) the Commissioner failed to properly have regard, in determining the clause 4.6 request, to his finding that the height control changes in the draft LEP were imminent and certain (Judgment [35]). 2 The Commissioner erred by refusing the proposal and dismissing the appeal for reasons pertaining to the proposal's failure to achieve building separation required by the ADG, and the inequity / burden placed on the neighbouring property to the west, known as 28 Mary Street, to achieve building separation required by the ADG. Particulars a. The Commissioner failed to consider and apply Section 4(4) of the State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development, which provides that unless a local environmental plan states otherwise, the Policy, and in turn the ADG, does not apply to a boarding house; b. the Commissioner failed to consider that the ALEP 2010 does not state otherwise; c. the particulars at 1(a)(v) and (vi) above are repeated; d. the Commissioner erred by finding that the proposal's general setback to "12 Mary Street" [sic] was a determinative merit weakness and that the proposal would impose on the reasonable development potential of that site for reasons pertaining to a failure to achieve building separation required by the ADG (Judgment [65]); e. the Commissioner erred by failing to have proper regard to the Applicant's submission that the proposed boarding house was free of the building separation and other requirements of the ADG (Judgment [66]); f. the Commissioner erroneously had regard to the proposed building being close to the envisaged ADG separation requirements for a building up to four storeys (Judgment [67]); g. the Commissioner erred by finding that the proposal was in unreasonable proximity to the adjoining land to the West and that the proposal caused an unreasonable impact on that site's potential to achieve existing future character ambitions having regard to building separation required by the ADG (Paragraph [68]. 3 The Commissioner erred by finding that the proposal was not compatible with the local area pursuant to clause 30A of the State Environmental Planning Policy (Affordable Rental Housing) 2009 because of its effect on the capacity for redevelopment of "12 Mary Street" [sic] in accordance with local character intentions. Particulars a. The particulars at 2a. to g. above are repeated b. The particulars at 1(a)(viii) are repeated, including the effect of the proposed LEP amendments for properties to the west.

Introduction

1. Only limited statutory provisions are relevant for the purposes of the appeal. The first, as earlier noted, is s 56A of the Court Act. This provides the basis for an appeal and the potential outcomes arising from one. The section is in the following terms: 56A Class 1, 2, 3 and 8 proceedings - appeals to the Court against decisions of Commissioners (1) A party to proceedings in Class 1, 2, 3 or 8 of the Court's jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners. (2) On the hearing of an appeal under subsection (1), the Court shall - (a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or (b) make such other order in relation to the appeal as seems fit. (3) Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.

State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development

1. In cl 4(4), Application of policy, State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development (SEPP 65) expressly provides that: Unless a local environmental plan states otherwise, this policy does not apply to a boarding house or a serviced apartment to which that plan applies.
2. For present purposes, it is sufficient to note that the Auburn Local Environmental Plan 2010 (the Auburn LEP) does not contain a provision causing SEPP 65 to be engaged for the purposes of boarding house development in the former Auburn local government area.

The Auburn Local Environmental Plan 2010

1. Only one provision of the Auburn LEP requires consideration. The provision is cl 4.6, the provision from the Standard Instrument (Local Environmental Plans) Order 2006 for local environmental plans that permits a development applicant to request a dispensation from compliance with what would otherwise be an applicable limiting development standard that would act as a barrier to approval. The provision is in the following terms: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows - (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence. (6) … (7) … (8) …
2. The Auburn LEP applies to Mr Cumming's development proposal because of its continuing applicability after the incorporation, in May 2016, of the former Auburn local government area into the amalgamated Cumberland local government area.
3. The present height limit for the site under the Auburn LEP is set at 20 metres. Mr Cumming's proposal is for a development which has a maximum height of a little over 23 metres at the top of the lift overrun. As a consequence, Mr Cumming's development application (as considered by the Commissioner) was supported by a request pursuant to cl 4.6 of the Auburn LEP to dispense with the requirement to satisfy the 20‑metre height development standard applying to the site. It will be necessary, later, to consider Mr Cumming's cl 4.6 dispensation request (a document referred to in the Commissioner's judgment as the "written request" or "WR").
4. It is to be noted that the (amalgamated) Council has undertaken the preparation of a new local environmental plan, the draft Cumberland Local Environmental Plan 2020 (the draft LEP). For completeness, it is to be observed that the draft LEP contains a cl 4.6, one in identical terms to that in the Auburn LEP.

State Environmental Planning Policy (Affordable Rental Housing) 2009

1. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) is a beneficial and facultative environmental planning instrument that provides a framework for assessment of boarding houses, amongst other types of development supporting social housing policy objectives. To the extent that provisions of SEPP ARH conflict with provisions of the Auburn LEP, the provisions of the policy prevail. For present purposes, it is unnecessary to set out any of the detailed provisions of SEPP ARH. However, as the Commissioner had adverted to a number of matters arising from it during the course of his judgment, it will be later necessary to refer to it where appropriate.

Representation

1. Mr Cumming was represented at the appeal before me by Mr A Galasso SC. Mr Galasso had appeared for Mr Cumming at the hearing before the Commissioner. I note that Mr Galasso has provided me with extensive and helpful written submissions in support of Mr Cumming's appeal.
2. There was no contradictor on the appeal because, on 27 July 2021, the Council had filed a submitting appearance save as to costs.

Introduction

1. The primary exhibit for the purposes of the appeal was the Appeal Book prepared by Mr Cumming's legal representatives. This folder of material was tendered, becoming Exhibit A. Material in Exhibit A is referred to later as necessary.
2. However, it is to be observed that Exhibit A included all of the material which had been tendered before the Commissioner, including, relevantly (at Tab 14), the amended cl 4.6 variation request, a document which had been before the Commissioner as Exhibit E.
3. The only other exhibit tendered in these appeal proceedings was a short chronology which became Exhibit B.

The Joint Expert Town Planning Report

1. Evidence was given before the Commissioner by town planning experts on behalf of Mr Cumming and the Council. For Mr Cumming, this evidence was given by Mr Brad Delapierre whilst Ms Rennie Rounds gave that evidence for the Council. Prior to the hearing before the Commissioner, these experts had conducted the customary joint conferencing process, resulting in a Joint Expert Report, a report which was tendered before the Commissioner. A copy of that report was also in evidence before me (Exhibit A, Tab 6, folios 164 to 208). The Joint Expert Report dealt with the cl 4.6 request made for Mr Cumming, a request which had been drafted by Mr Delapierre. With respect to the question of whether or not that which was advanced in the request satisfied the requirement of cl 4.6(b), the positions of the experts were set out at folios 167 and 168.
2. Mr Delapierre noted, after dealing with the anticipated Cumberland LEP, that he relied upon his discussion in the cl 4.6 request as outlining the planning merits of varying the current 20‑metre height limit (Exhibit A, Tab 6, folio 167).
3. Ms Rounds, after some introductory comments citing a number of cases that provided the framework for her consideration, then dealt with the proposed exceedances under the following headings:

• Is the proposed development consistent with the objectives of the zone?
• Is the proposed development consistent with the objectives of the development standard which is not met?
• Is compliance with the development standard unreasonable or unnecessary, in the circumstances of the case? And
• Are there sufficient environmental planning grounds to justify contravention of the development standard and, therefore, is the applicant's written justification well-founded?

1. With respect to this latter topic, she commented briefly (Exhibit A, Tab 6, folio 168) that: For the reasons detailed above, there are not sufficient environmental planning grounds to justify contravening the development standard, in this instance.
2. The topic was further explored during the course of the planners' oral evidence before the Commissioner but it is not necessary, for present purposes, to delve into the detail of that evidence.

The hearing

1. The comparatively confined nature of the grounds upon which Mr Cumming has appealed, when coupled with the absence of a contradictor at the hearing, meant that the hearing was conducted efficiently, taking less than three hours.
2. Because this appeal had no active contradictor, the hearing followed the pattern of Mr Galasso taking me through the plans for Mr Cumming's proposed development and its local context (particularly neighbouring and other existing developments in the vicinity), then the Commissioner's judgment in an interpretive fashion, followed by Mr Galasso taking me through his written submissions as they addressed the relevant elements he had identified in his traverse of the Commissioner's judgment.
3. As a consequence, that which follows as being advanced on behalf of Mr Cumming is set out following that pattern.

The case for Mr Cumming on appeal

1. Mr Galasso commenced by taking me through the request which had been prepared for Mr Cumming seeking dispensation from compliance with the building height development standard contained in the Auburn LEP
2. Mr Galasso next took me to a series of maps which were contained in the Appeal Book behind Tab 8. The first of these, at folio 289, reproduced an extract from the existing zoning map showing the site and, adjacent on the same page for comparison purposes, the same map extract as it appears in the draft Cumberland LEP (showing, relevantly, the proposed change in zoning on the eastern side of Frederick Street (north of Mary Street and opposite the site). Similar present and proposed map extracts for height of buildings (folio 290) and floor space ratio (folio 291) were also referred to by Mr Galasso.
3. Mr Galasso next took me through the matters set out as contentions in the Council's Amended Statement of Facts and Contentions of 22 March 2021 (Appeal Book, Tab 5). Although an extensive range of contentions was pressed in this document by the Council, it is to be noted that Mr Cumming's development proposal was amended subsequent to the filing of the Council's contentions - resulting in a number of those contentions being resolved and therefore not requiring consideration by the Commissioner.

The relevant element of the cl 4.6 request

1. As earlier noted, a written request seeking dispensation from the obligation to comply with the height limit development standard imposed on the site by the Auburn LEP was in evidence before the Commissioner and required consideration by him. That request was in evidence before me (Exhibit A, Tab 14, folios 364 to 377). At folios 374 and 375, the request set out what were the environmental planning grounds advanced on behalf of Mr Cumming as satisfying the requirement mandated by cl 4.6(b).
2. This element of the amended cl 4.6 request was addressed (as set out at Exhibit A, Tab 14, folios 374 and 375) in the following terms. 7 CLAUSE 4.6(3)(B): SUFFICIENT ENVIRONMENTAL PLANNING GROUNDS TO JUSTIFY CONTRAVENING THE DEVELOPMENT STANDARD 1 Clause 4.6(3)(b) of the ALEP 2010 requires the contravention of the development standard to be justified by demonstrating that there are sufficient environmental planning grounds to justify contravening the development standard. 2 The following factors demonstrate that sufficient environmental planning grounds exist to justify the proposed variation to the maximum building height standard in Clause 4.3. It is reminded at the outset that as confirmed by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [24], the focus is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds: (a) As noted above, the proposal, including the proposed height variation, responds to and is compatible with the future character of the locality, noting on 15 July 2020 the Draft CLEP 2020 was endorsed by the Respondent consent authority, which proposes an increase to the maximum building height standard on the Site to 29 m of which the proposal easily complies. At the date of this statement, the Draft CLEP 2020 is with the Department of Planning, Industry and Environment for finalisation, with gazettal anticipated in May/April 2021; (b) As noted above, the visual impact of the building element that exceeds the maximum building height standard is limited and will not be highly discernible from the street. Given the slender tower nature of the proposal; (c) As noted above, the shadow diagrams demonstrate that the adjoining properties receive appropriate levels of solar access to living areas and private open space areas and that The additional overshadowing caused by the building elements above the maximum building height development standard do not have an adverse impact; (d) The variation to the maximum building height control enables delivery of affordable housing development to expand the availability of affordable rental housing in an accessible area consistent with Objective 3(b) of the SEPP ARH. 3 The variation to maximum building height development standard enables development of the proposed boarding house on a lot that is physically large enough, and has suitable width and depth, to accommodate a boarding house development, which is demonstrated through almost strict compliance with the remaining planning controls. This promotes the orderly and economic use of the land. 4 The variation of the maximum built building height standard enables the objects of the EP&A Act to be achieved, specifically: (a) to promote the orderly and economic use and development of land, (b) to promote the delivery and maintenance of affordable housing, ● The proposal is consistent with the Cumberland Interim Affordable Housing Policy as it provides for affordable housing and accommodation to key workers in a highly accessible location which is consistent with Transit Oriented Development; ● The proposal is not located within a low density area and the proposal represents an appropriate built form on the site; ● The absence of adverse environmental, social or economic impacts. 5 The above discussion demonstrates that there are sufficient environmental planning grounds to justify the proposed variation to the maximum building height standard.

The Commissioner's judgment

1. After traversing, briefly, the introductory elements of the Commissioner's judgment, Mr Galasso turned to the elements of the judgment he submitted gave rise to the appeal.
2. In his judgment, at [19], the Commissioner said: The key issue in this matter is the proposed building's height and siting on this relatively narrow and small parcel of land, and related questions about local area character compatibility. These points go to the question of whether the site is suitable for the development as proposed.
3. At [22], he set out the Council's contentions, in summary - noting the first of these as being the contravention of the maximum permitted building height under the Auburn LEP. The other three matters in contention he summarised in the following terms: 1. Site dimensions - the Council raised a concern that, due to its area and width, the site did not lend itself to the development; 2. Siting, bulk and scale - among a number of matters, the Council raised a concern that, due to the setbacks of the proposed building, the proposal would unreasonably burden future development of the adjoining sites at 28 Mary Street and 1 Frederick Street; and 3. Character - the Council argued that the development would be incompatible with the existing and likely future character of the area.
4. He then observed, at [23]: I see these issues as highly interrelated and best considered, largely, in an integrated manner. Something that needs attention on that front is the fact of the proposal's contravention of ALEP's maximum building height development standard.
5. Mr Galasso submitted that the comment in the first sentence of [23] in the Commissioner's judgment reproduced above constituted the commencement of the Commissioner's error concerning the cl 4.6 request and its consideration. He noted that the second sentence in the paragraph was uncontroversial but submitted that the combination of the two sentences, read in conjunction, demonstrates the error in the Commissioner's reasoning (Transcript 12 October 2021, page 12, lines 31 to 39).
6. Mr Galasso next turned to [31] of the Commissioner's judgment, a paragraph in the following terms: The test which for me is determinative is whether the written request has adequately addressed the requirement to demonstrate there are sufficient environmental planning grounds to justify contravening the development standard. It will be seen that I take the view that when considering this particular "adequacy" of the written request, I am in part evaluating the evidence and submissions from Council and its expert as a counterpoint. In this particular case other contentions raised by Council, in particular: site dimensions, the building siting and character compatibility; come into direct contention in relation to the examination. …
7. Mr Galasso accepted that no criticism was to be made of the first sentence in this paragraph as it correctly stated what the Commissioner was required to determine. However, he submitted that the extensive nature of what the Commissioner thereafter wrote (particularly in the third sentence of the paragraph, by importing other contentions raised by the Council, being contentions not relating to the height of the building and its exceedances of the development standard in the Auburn LEP), reflected the error into which the Commissioner would subsequently fall.
8. Mr Galasso then turned to [32[ of the Commissioner's judgment where he had summarised the environmental planning grounds advanced by the cl 4.6 request in satisfaction of the requirement of cl 4.6(3)(b). The matters the Commissioner set out were in the following terms: (1) The fact of Draft CLEP of itself, in particular, the maximum building height changes proposed; and with a mind to Draft CLEP's suggested imminence and certainty. (2) The proposed building height assists the proposal's capacity to deliver on wider (NSW) affordable, particularly affordable rental, housing ambitions, and the orderly development aims of the EPA Act. (3) The proposed building height assists the proposal align with or be compatible with the local strategic planning intentions and character. (4) The proposed building height, in company with the rest of the design, does not bring unreasonable adverse amenity impacts (eg overshadowing, visual character); which "proves up" that, notwithstanding its dimensions, the site is physically large enough and has a suitable width and depth to accommodate the proposed boarding house development.
9. Mr Galasso submitted that, in the judgment's following paragraphs, the Commissioner dealt with each of these four grounds which he had synthesised. Mr Galasso proposed that a proper understanding of the Commissioner's judgment demonstrated that the Commissioner dealt with: 1. the first of his synthesised grounds at [33] to [35]; 2. the second of his synthesised grounds at [36] and [37]; 3. the third of his synthesised grounds from [38] to [43]; and 4. his final synthesised ground at [44] to [48].
10. Mr Galasso submitted that, with respect to the first three of the propositions synthesised by the Commissioner, the relevant elements of his decision, as identified in the paragraphs listed above, were all found by the Commissioner to be positive in favour of Mr Cumming's dispensation request.
11. Mr Galasso then turned to the Commissioner's comments in [44] to [46]. It is appropriate to set out these paragraphs and Mr Galasso's submission concerning the concluding sentences of [46]. The paragraphs are in the following terms: 44 The WR submits that the proposal (as amended), including the contravening height aspects, brings no unreasonable effects in regard to solar access, or privacy and that the visual impact of the contravening height aspects would not be unreasonable. 45 An explanation here was as follows (WR p 35): "The variation to maximum building height development standard enables development of the proposed boarding house on a lot that is physically large enough, and has suitable width and depth, to accommodate a boarding house development, which is demonstrated through almost strict compliance with the remaining planning controls." 46 I accept, as does Council, that there are no unreasonable neighbour physical amenity concerns with the contravention. I am also not concerned about visual impact, having regard to the intentions for future building heights in this location. However, as is well recognised, lack of adverse impacts does not have great weight in terms of providing sufficient planning grounds for a development standard contravention. The amenity concerns, also, only go so far in considering whether "the lot is physically large enough, and has suitable width and depth" to accommodate the proposal.
12. With respect to the final two sentences of [46], Mr Galasso submitted that this was contaminating the analysis of environmental planning grounds and venturing into aspects that are beyond it (Transcript 12 October 2021, page 15 lines 47 and 48).
13. Mr Galasso then drew attention to [47] of the judgment, a paragraph where the Commissioner summarised the position advanced by the Council's expert planner, Ms Rounds, that Mr Cumming's proposed development involved excessive site coverage. It is not necessary to set out the terms of this paragraph; it is sufficient to note that "excessive site coverage" is an element not directly related to the portion of the proposed development which would result in the breach of the height development standard.
14. Mr Galasso then noted that the Commissioner proceeded direct to considering whether the cl 4.6(3)(b) test of "sufficient environmental planning grounds" had been satisfied without addressing the separate test in cl 4.6(3)(a) as to whether compliance would be "unreasonable or unnecessary". Mr Galasso made no criticism of the Commissioner for proceeding in this fashion.
15. Mr Galasso next turned to [48] of the Commissioner's judgment. It is necessary to reproduce this paragraph in full although the criticism advanced by Mr Galasso only relates to its concluding element. The paragraph was in the following terms: 48 The setting here is somewhat unusual in that I can accept that there is a good degree of both certainty and imminence that the building height control applying to the site will change to a height with which the proposed building would comply. This is a significant planning ground which warrants weight. It is noteworthy that if Draft CLEP were gazetted today, the proposal could not be refused on the grounds of building height. However, it will be seen that the WR does not satisfy me that there are sufficient environmental planning grounds to justify the building height contravention as proposed. Of note here is that the major concern with this proposal is not the building height of itself, but the siting of this height, in particular its setback from adjoining property and the implications of this.
16. Mr Galasso submitted that the final sentence of the above paragraph formed a significant element demonstrating the error of the Commissioner's approach. Mr Galasso conceded that had the siting of the height resulted in adverse amenity grounds (such as overshadowing), that would be a basis for legitimate criticism by the Commissioner. However, the agreed position was that no such adverse impacts would arise (as the Commissioner had earlier recorded).
17. The Commissioner's [48] (and [49]) can be seen, from the layout of his judgment, as being introductory comments to his consideration of the "Sufficient environmental planning grounds test".
18. Mr Galasso next turned to the elements of the Commissioner's judgment that followed. The Commissioner's judgment next turned to address "Whether existing character intentions for the site are significant" at [50] to [52]. Mr Galasso made no criticism of those paragraphs.
19. The Commissioner then addressed the sufficiency of the environmental planning grounds under the subheading, "Juxtaposing the proposal with the desired future character". The Commissioner's discussion was set out at [53] to [57]. It is appropriate to set out these paragraphs in their entirety as they are critical to understanding the nature of the error into which Mr Galasso proposes I should find that the Commissioner fell. These paragraphs were in the following terms: 53 As indicated above [39], the proposal would make a contribution to character with the yield it seeks to achieve, with the building height, as proposed, assisting here. A concern of Council was that this contribution comes at the expense of the capacity of adjoining land to make its own contribution, given the building setbacks in place. 54 There was agreement from the experts that RFB controls under ADCP did not apply to boarding house development. However, Ms Rounds maintained concerns in regard to the western side setbacks of between 1.14m and 2.54m (Ex 3 par 3.2). Ms Rounds provides evidence that (Ex 3 par 3.10): The reduced building setbacks to the side and rear will impact the future development potential of the properties immediately adjoining the sites to the west and north, being 28 Mary Street and 1 Frederick Street, respectively. Noting the R4 land use zoning of the land, any future development of these sites would likely be subject to the provisions of SEPP 65, in which case they would be burdened by the requirement for greater setbacks to comply with the building separation requirements of SEPP 65 and the Apartment Design Guide (ADG). 55 Ms Rounds suggested the Apartment Design Guide (ADG) under State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65), "envisaged" side setbacks as follows (Ex 3 par 4.10): Building Height Habitable rooms Non habitable rooms Up to 12m (4 storeys) 6m 3m Up to 25m (8 storeys) 9m 4.5m Over 25m (9+ storeys) 12m 6m

56 While I acknowledge the table above, it is my understanding that the ADG nominates separation distances between buildings (rather than individual side setbacks to common boundaries) with the separation distances essentially a doubling of the dimensions indicated in the table. That is to say, it is my understanding that an equal across-boundary sharing of the ADG building separation distances would arrive at the side setbacks indicated in the table. 57 Mr Delapierre's evidence was that (Ex 3 par 3.6): The setbacks of buildings in the immediate precinct are varied. The building has been carefully designed to minimise impacts on the two adjoining properties and the design of the building does not reduce the potential of these sites to develop towards the bulk and scale envisioned by the existing and future planning controls."

1. After taking me through the Commissioner's judgment in the fashion described above, Mr Galasso next turned to his written submissions dated 30 September 2021.
2. Mr Galasso's written submissions then turned specifically to the grounds in Mr Cumming's Amended Summons.
3. In his oral submissions, he noted that Ground 1 was the principal ground, being whether the Commissioner had had regard to erroneous matters in his consideration of whether there were sufficient environmental planning grounds, set out in the written request, to justify dispensation from compliance with the Auburn LEP's height control (Transcript 12 October 2021, page 23, lines 9 to 17). He noted that the defects in the Commissioner's reasoning, of which complaint was made in support of Ground 1, were set out at (i) to (viii) of the particulars pleaded in support of this ground.
4. Before turning to matters of detail concerning each of these particulars, Mr Galasso took me to the judgment of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action), at [24], where Mr Galasso quoted from the following elements of the paragraph (citations omitted): 24 The environmental planning grounds relied on in the written request under cl 4.6 must be "sufficient". There are two respects in which the written request needs to be "sufficient". First, the environmental planning grounds advanced in the written request must be sufficient "to justify contravening the development standard". The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter.
5. Mr Galasso next referred to Preston CJ's Court of Appeal reasons in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, at [51], as defining the necessary focus for what was required to be addressed by a cl 4.6 request.
6. Mr Galasso noted that the question of environmental planning grounds required to be demonstrated for a successful dispensation request was of narrower focus than the broader question of whether the proposed development was, in totality, in the public interest (Transcript 12 October 2021, page 24, lines 16 to 21). He then summarised what he submitted was the defect underlying Ground 1 as being (Transcript 12 October 2021, page 24, lines 23 to 26): … the Commissioner impermissibly effected the consideration by reference to other aspects of the development comprising either aspects of the development as a whole, the aspects of the development unrelated to the matter of building height.
7. Mr Galasso then took me through, and expanded upon, the various matters relied upon from the Commissioner's judgment as demonstrating the validity of the complaint embodied in each of the particulars. It is not necessary for me to address all of these in detail. First, I note particular (vi), a particular in the following terms: (vi) the Commissioner erred in observing that the proposal would comply with ADG separation if it was about one storey less than proposed (Judgment [61]).
8. I later address this particular in my consideration of this appeal ground.
9. Mr Galasso then addressed (ii) to (iv) explaining why the Commissioner had regard to these matters, bringing together matters which were not relevant or not strictly relevant to the proposed height exceedances. He noted that he had grouped (v) to (vii), drawing attention to this element of his written submissions at page 9, doing so in the following terms: As the particulars identified, at judgment 58-61. The Commissioner not for the first time, referenced aspects of relationship in terms of setback to the adjoining land to the west. Those paragraphs are concerned with a setback provision contained in the apartment design guide: AB, Tab 20, P523. A number of things remain relevant to this aspect of the judgment, insofar as it is irrelevant to the clause 4.6 request with respect to building height: (a) The ADG is a document reference in state environmental planning policy 65 (SEPP 65): AB Tab 19, clause 28(2)(c). (b) SEPP 65 does not apply to this application, it not comprising that form of development specifically engaged by its provisions at clause 4 (citations omitted). (c) The Commissioner appears to be accepted that amenity impacts were minimised through design response: judgment 58. (d) To the extent that at judgment 61. The Commissioner attempted to relate what he described as a potential burdening of 28 Mary Street by relating height to building separation, he was wrong a complying building of one story less than proposed would not, according to the ADG provisions, lessen the burden on 28 Mary Street somewhat compared to the proposal. That is because, by reference to the ADG provisions (AB 523), threshold for a difference in building separation occurred at the 4/5 story transition, not a 7/6 story transition. Furthermore, the reference the building separation provisions varying with height for distances up to 12 m was entirely misplaced with a proposal designed 23 m in the lower threshold being slightly more than half of that amount: judgment 61.
10. Mr Galasso submitted that each of the environmental planning grounds that had been advanced in the cl 4.6 request had been established in the context that they had been confined, by the draft of the request, to the additional height sought that was in excess of the development standard. He submitted that, to the extent that the Commissioner head traversed matters dealing with, and had made conclusions about, aspects of the proposed development unrelated to the proposed height exceedances, he was in error in doing so, in his evaluation of the clause 4.6 request.
11. His written submissions, summarising what he proposed concerning Ground 1, were that: Thus, on the findings made by the court below in relation to the environmental planning grounds, it is quite apparent that the finding with respect to the clause 4.6(3)(b) question ought to have been, in the absence of consideration of extraneous and irrelevant matters, in the affirmative (citing Hope v Bathurst City Council ).

Ground 2

1. Mr Galasso took me through his written submissions in support of Ground 2, but said, qualifying reliance on it, the following (Transcript 12 October 2021, page 27, line 41 to page 28, line 6): Ground 2 is, to a certain extent, unnecessary in and of itself to dispose of the appeal. However, we maintain it focuses, as your Honour will recall from the summons, upon the Apartment Design Guidelines. If it were the case that the Court in reviewing the judgment formed the view that it had as a ground independently a basis for dismissing the appeal, then to the extent that the Commissioner considered the Apartment Design Guide, as we've submitted already and I don't wish to irritate by repetition, suffered two defects. One is the fundamental problem with having to apply the Apartment Design Guide to this development for the purposes of rejecting this development. And the second is, in applying the Apartment Design Guide, he misconstrued the terms of the Apartment Design Guide in a fundamental way which then infected the attribution of burden to the proposal before the Court, ..(not transcribable).. the adjacent property. To that extent, this ground depends upon the analysis that we've already set out in ground 1 insofar as the Apartment Design Guide is concerned.
2. Given that, for the reasons I later set out, the appeal is successful on the basis of the Commissioner's incorrect approach to the cl 4.6 request in a fashion that necessitates the upholding of Ground 1 and this concession from Mr Galasso, it is not necessary to set out any further material concerning Ground 2.

Ground 3

1. Mr Galasso also made a concession concerning Ground 3, as he had made with respect to Ground 2 (Transcript 12 October 2021, page 28, lines 14 and 15). On the same basis as for Ground 2, it is not necessary to set out the limited submissions made by Mr Galasso concerning this ground.
2. Mr Galasso next took me to where the Commissioner set out his findings concerning whether there were sufficient environmental planning grounds to permit that necessary gate to be open for the purposes of granting the cl 4.6 request made in support of Mr Cumming's proposed development. Before turning to set out what Mr Galasso says is to be taken from the Commissioner's analysis as constituting the error which should result in me upholding Grounds 1 and 2 set out in the Amended Summons commencing this appeal, it is appropriate (although somewhat lengthy) to set out the relevant paragraphs, [57] to [62], of the Commissioner's judgment. These are in the following terms: Finding 57 I do not find sufficient in the way of environmental planning response, either in the WR or the expert evidence more generally, to what Council is correct in suggesting to be a burdening of the adjoining land to the west, were the development to be approved as now proposed. The burden is in regard to future development potential mindful of desired future character. Of most particular interest to me is 28 Mary Street, immediately to the west of the site. Mr Delapierre argues, correctly, that amenity impacts are minimised through design response. But I was not able to see evidence of how "the design of the building does not reduce the potential of these sites to develop towards the bulk and scale envisioned by the existing and future planning controls" (at [56]). 58 It is reasonable to expect that the significant uplifting of development potential on nearby land will facilitate achievement of the desired future character of higher density development in this locality, especially given good public transport accessibility. In turn, there was nothing to suggest 28 Mary Street, subject to considerably lesser development potential under ALEP, would be other than a candidate for redevelopment under Draft CLEP at some time in the future. It is also reasonable to expect that a high proportion of RFB development would eventuate in the area subject to the development potential uplift, which would be subject to the provisions of the ADG. That is to say, it seems to me unreasonable, for example, to earmark 28 Mary Street for boarding house development in some way, in assessing the proposal's reasonableness. 59 All other things being equal, it would place an unreasonable impediment on the potential contribution of 28 Mary Street to the achievement of the desired future character of the local area, were a setting to be created where that parcel would be responsible for a distinctly higher proportion of the building separation encumbrance required by the ADG along the common boundary with the site. The fact that this might be done in order for a site, such as in the case here, to assist in achieving a limited increase to its potential contribution to the wider (NSW) affordable rental housing ambitions, is not sufficient grounds to justify the impediment on 28 Mary Street's potential to meet strategic intentions under Draft CLEP. 60 The building height would be a factor in what I am describing as a potential burdening of 28 Mary Street. Which brings me back to the contravention of ALEP and whether the WR demonstrates sufficient environmental planning grounds to justify it. I observe that a complying building (about one storey less than that now proposed) would lessen the burden on 28 Mary Street somewhat compared to the proposal. But it is also to note that the ADG building separation provisions do vary with height, with building separation distances up to four storeys (12m) less than those for five to eight storeys (25m) and beyond. When I consider all of the planning grounds proffered in WR, I am not satisfied that they are sufficient to justify the building height contravention of ALEP. 61 The particulars are provided above, but now I will briefly cross-reference the four, what I will call, summary points by which I synthesised the environmental planning grounds put by the WR (at [32]). On the first summary point, while the importance of the imminence and certainty of Draft CLEP is recognised, it does not of itself derogate from the jurisdictional requirement to satisfy development standards contained in ALEP. On the second, third and fourth summary points, I acknowledge the building height as proposed would provide for a marginal increase in affordable rental housing, and that there would be no unreasonable amenity impacts for neighbours now. However I do not see these aspects as sufficient to offset the downside outlined above. The circumstances of this case are that the site is not physically large or wide enough to accommodate a building of the proposed height and siting, without unreasonable effect on development potential for 12 Mary Street. The effect on the capacity for redevelopment of 12 Mary Street in accordance with local area character intentions, brings me to the view that, mindful of cl 30A of SEPPARH, the proposal is itself not compatible with the character of the local area. 62 I am not satisfied that the WR has adequately addressed the matters required to be demonstrated under cl 4.6(3)(b). That is, that there are sufficient environmental planning grounds to justify contravening the development standard. There is no jurisdiction to approve the development given the building height contravention.

Consideration

1. I have earlier set out the three grounds and their supporting particulars pleaded in the Amended Summons. Although the particulars pleaded in support of Ground 1 set out a range of matters of which complaint is made concerning the Commissioner's judgment, in essence the complaints can correctly be understood as addressing what are said to be the Commissioner having regard to matters irrelevant to the breach of the height standard derived from the Auburn LEP in determining whether there were sufficient environmental planning grounds to justify contravening that development standard, this being the confined nature of the test required to be satisfied by cl 4.6(3)(b) of the Auburn LEP.
2. It was also earlier submitted, on behalf of Mr Cumming (relying on the judgment of Preston CJ in Initial Action), that what is required to be addressed by a cl 4.6 request for dispensation of compliance with a development standard is confined to the extent to which the proposed development breaches that standard and not with respect to any wider ranging assessment of the merits of the proposed development.
3. For reasons explained by Preston CJ in Initial Action as earlier set out, the matters that are required to be addressed by a cl 4.6 request are those confined to the aspects of the proposed development that breach the development standard for which compliance dispensation is sought.
4. As can earlier be seen from the submissions made on behalf of Mr Cumming, central to the Commissioner's determination, that the cl 4.6 request did not provide sufficient environmental planning grounds in satisfaction of cl 4.6(3)(b), was the setback requirements that he considered would be triggered by SEPP 65 (and, hence, the Apartment Design Guide) if the neighbouring property at 28 Mary Street was to be redeveloped.
5. I have earlier set out Mr Galasso's submission that I should conclude that, with respect to the propositions synthesised by the Commissioner as arising for consideration in the context of the cl 4.6 request, I would be satisfied that a fair reading of those paragraphs in the Commissioner's judgment makes it clear that the Commissioner found that each of them should be regarded as a positive attribute in favour of establishing that which was required by cl 4.6(3)(b) of the Auburn LEP.
6. I also earlier set out particular (vi) pleaded in support of Ground 1. It is correct that the Commissioner, in expressing a conclusion that the relevant separation distances would, in the Commissioner's opinion, comply with the Apartment Design Guide (if Mr Cumming's proposed development was one storey less tall than proposed), reached a factually inaccurate conclusion.
7. However, nothing flows from that for the purposes of present consideration. In such circumstances, a factual error, if not material to the overall conclusion derived by the Commissioner, can play no part in providing a basis for upholding Mr Cumming's appeal. Neither erroneous findings of primary fact nor the drawing of illogical or inappropriate inferences will constitute an error of law: Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 at [197]; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156.
8. Of importance in the context of the Commissioner's rejection of Mr Cumming's cl 4.6 request was the four‑storey residential flat building at 28 Mary Street (immediately to the west of the site) and any potential future redevelopment of that site if Mr Cumming's development was to be approved.
9. Here any necessity for any setback (if one was required) with a possible future redevelopment of the adjacent site from Mr Cumming's development would not be occasioned by the proposed breach of the height limit but would be required by the setback transition potentially mandated to occur from a lower level of the proposed development, being a level which would not be in breach of the Auburn LEP's height standard.
10. As can be seen from the earlier extracts from the Commissioner's judgment, although bundled with his consideration of other contextual aspects of the proposed development, the impact of the setback considered necessary by the Commissioner of the proposed development was critical in, and essential to, the Commissioner's reasoning in support of his conclusion that sufficient environmental planning grounds had not been advanced to justify the proposed breach of the development standard.
11. In reaching his conclusion, the Commissioner erred by not confining his consideration of the cl 4.6 request element in cl 4.6(3)(b) to those matters relating exclusively to the breach of the height development standard set by the Auburn LEP. His conflating of other matters, particularly what he considered to be the adverse setback impact on the adjacent property to the west at 28 Mary Street, arose from matters completely extraneous to the element of Mr Cumming's proposed development which breached that height standard.
12. By not confining his consideration of what was mandated by cl 4.6(3)(b) to those matters arising solely from the element of Mr Cumming's development that exceeded the height development standard set by the Auburn LEP, the Commissioner fell into error. As a consequence, it is necessary to uphold Ground 1 and remit Mr Cumming's merit appeal to be determined on the proper basis. Therefore, Grounds 2 and 3 do not require further consideration.

An exclusionary remitter?

1. As earlier noted, although the orders originally sought in the Summons commencing the appeal did not seek an exclusionary remitter so that the further hearing of Mr Cumming's appeal would not be undertaken by Walsh C, the amendment to the relief sought made at the commencement of the hearing did seek to have me order that the further hearing should be dealt with by a different Commissioner.
2. Mr Galasso submitted that the reason why an exclusionary remitter order was appropriate was (Transcript 12 October 2021, page 29, lines 47 to 50): … because of the intermingling of the merit matters with the jurisdictional matter that there is, we would submit, undoubtedly the conveyance of an apprehension of prejudgement, that is, prejudgement on matters that may need to be reconsidered afresh by a fresh mind.
3. Mr Galasso submitted that the observations by Tobias JA in Baulkham Hills Shire Council v Basemount Pty Ltd (2003) LGERA 339 (Basemount), at [21] to [23], were relevant because similar issues arise here as arose in the circumstances of that case.
4. After setting out his conclusions as to why he considered the separation distance that would result from any future redevelopment of 28 Mary Street would render Mr Cumming's proposed development unacceptable, the Commissioner then turned to set out, at [64] to [68], comments under the heading, "General Merits Considerations".
5. The findings that the Commissioner made here, on the question which has founded this appeal, intermingled adverse findings of fact concerning Mr Cumming's proposed development that would require to be addressed if, on remitter, the cl 4.6 request was determined to be appropriate to be granted and dispensation with the requirement to comply with the height standard was approved.
6. At that point, the Commissioner to whom the matter is remitted would then need to undertake a full merit assessment of the proposed development against relevant applicable planning requirements. Given that the appealed-against Commissioner has intermingled adverse findings of fact not concerning the height breach with his reasons for refusing the cl 4.6 request, I am satisfied that it is appropriate to make an exclusionary remitter order, in these circumstances, for similar reasons to those discussed by Tobias JA in Basemount.
7. Although unnecessary for these comments to be made, given the Commissioner's conclusion concerning the inadequacy (as he found it) of the environmental planning grounds advanced in support of the cl 4.6 dispensation request, his comments could best be described as a "mixed bag", but ones going to the broader merits of the proposal in an unnecessary fashion. These comments would lead a fair-minded observer to conclude that the Commissioner might bring inappropriate prejudgement to further consideration of Mr Cumming proposed development, if the matter was remitted to him for further consideration.
8. In this sense, a fair-minded observer might well conclude that there was a reasonable apprehension of bias on behalf of the Commissioner concerning Mr Cumming's proposed development (in an Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 sense).
9. I have therefore concluded that the appropriate order to be made remitting Mr Cumming's proposed development for further consideration should be consistent with the terms of order 3 proposed in the Amended Summons.

Costs

1. Mr Galasso conceded that the appropriate approach to the question of costs, in the event that I upheld Mr Cumming's appeal, was to provide his client with the opportunity of considering whether or not Mr Cumming would seek a costs order against the Council in circumstances where the Council had entered a submitting appearance (except as to costs) at an early time after the commencement of the appeal.
2. As a consequence, I am satisfied that the appropriate approach is to make a self-executing order that provides Mr Cumming time within which to be advised on the issue of costs, but, if notice of an intention to seek a costs order against the Council was not notified to my Associate and to the Council's legal representatives within a nominated period of time, the resulting position should be that there would be no order for costs.
3. Mr Galasso accepted that this would be an appropriate approach.

Orders

1. The orders of the Court, therefore, are: 1. The appeal pursuant to s 56A of the Land and Environment Court Act 1979 is upheld; 2. Orders 1 and 2 of the Court below are set aside; 3. The matter be remitted to a Commissioner, other than Commissioner Walsh, to be determined according to law; 4. Unless the Applicant advises my Associate and the legal representatives of the Respondent, within 21 days of the date of these orders, that an alternative costs order is sought, there is to be no order for costs with a view to each party bearing their own costs with respect to this appeal; and 5. The exhibits are returned. Directions 1. The matter is set down for further directions before the Registrar on 5 November 2021; and 2. The Applicant is to advise the Respondent of the above directions listing by the close of business on 3 November 2021.

Amendments 03 November 2021 - Two cases need italicising on the cover sheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 November 2021