Land and Environment Court New South Wales Medium Neutral Citation: Trinity Investments Australia Pty Ltd v Inner West Council [2021] NSWLEC 1033 Hearing dates: 17 December 2020 Date of orders: 20 January 2021 Decision date: 20 January 2021 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is dismissed. (2) Development Application No. 2020/0352 for the construction of five townhouses with basement parking and associated landscaping over basement parking and Torrens title subdivision into five lots, at 436 Marrickville Road, Marrickville, is refused. (3) The exhibits, other than Exhibits 3, A and P, are returned. Catchwords: DEVELOPMENT APPLICATION – attached dwellings – Torrens title subdivision – whether the subdivision is consistent with existing subdivision pattern – streetscape and design – built form and character Legislation Cited: Environmental Planning and Assessment Act 1979 Marrickville Local Environmental Plan 2011 Marrickville Local Environmental Plan 2011 (Amendment No 4) Cases Cited: Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 Fuller v Inner West Council [2019] NSWLEC 1506 Texts Cited: Marrickville Development Control Plan 2011 Category: Principal judgment Parties: Trinity Investments Australia Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) C Norton (Respondent) Solicitors: Hall and Wilcox Lawyers (Applicant) Inner West Council (Respondent) File Number(s): 2020/239384 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 (EPA Act) against the refusal of Development Application No. 2020/0352 for the construction of five townhouses over basement parking, associated landscaping and Torrens title subdivision, (the proposal) at 436 Marrickville Road, Marrickville (the site) by Inner West Council (the Council). Issues 1. The Council's contentions can be summarised as: * The proposal fails to demonstrate consistency with the objectives and controls contained in Part 3.2.2 of the Marrickville Development Control Plan 2011 (DCP 2011) relating to residential Torrens title subdivision. * The proposal fails to demonstrate consistency with the objectives and controls contained in Part 4.1 of DCP 2011 relating to streetscape and design. * The proposal fails to demonstrate consistency with the objectives and controls contained in Part 4.1 of DCP 2011 relating to built form and character. The site and its context 1. The site is on the southern side of Marrickville Road, on the western corner of Marrickville Road and South Street. 2. The site is vacant. The site has an area of 738.6sqm, with a frontage to Marrickville Road of 18.615m, a splayed corner of 4.21m and a frontage to South Street of 31.41m (Ex A, tab 9). The site has a width of 21.58m and a length of 34.4m (Ex P, p 2). 3. The adjoining property to the south, on the corner of South Street and Crawford Place, is a single storey contemporary building used as a doctor's surgery. The adjoining property to the west, at 440 Marrickville Road, is a single storey dwelling. 4. Marrickville Road, in the vicinity of the site, includes single storey period housing, residential flat buildings and a residential aged care facility. South Street, to the south of Crawford Place, includes single storey period housing. The proposal 1. The proposal is to construct five townhouses, identified as T1 to T5, each three storeys and fronting South Street, over basement parking with a shared vehicular entry to the basement in the front setback of T3. The uppermost level of each townhouse includes a terrace on the eastern side. T5 is on the corner of South Street and Marrickville Road. The proposal has a 3.36m setback to the Marrickville Road boundary (excluding the basement stair exit which extends to the boundary) and a 4.205m setback to the South Street boundary (Ex A, dwg no. 01). 2. Each townhouse has one car parking space in the basement. T1, T2 and T4 have internal access from the basement. T3 and T5 are accessed from the basement via the fire egress stairs at the northern end of the basement to the footpath on Marrickville Road to access the footpath on South Street. T3 and T5 are then accessed from the public footpath to their individual front entries on South Street. 3. On 17 December 2020, the applicant provided an updated Basement subdivision plan including the car parking space for T3 as a right of carriage way over T5. 4. The proposal includes the Torrens title subdivision of the site into five lots, Lot 1 containing T1 is 150.6sqm, Lot 2 containing T2 is 123.2sqm, Lot 3 containing T3 is 123sqm, Lot 4 containing T4 is 123.3sqm and Lot 5 containing T5 is 218.9sqm (Subdivision Plan, Ex A). Planning framework 1. The site is zoned R1 General Residential pursuant to Marrickville Local Environmental Plan 2011 (LEP 2011) and attached housing is permissible with consent in the R1 zone. The objectives of the R1 zone, to which regard must be had, are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The properties to the south of Crawford Lane and on the opposite side of South Street are zoned R2 (Land Zoning Map LZN_002 of LEP 2011): 1. The site has a height of buildings development standard of 11m (cl 4.3 and Height of Buildings Map HOB_002 of LEP 2011). The R2 zone in the vicinity of the site has a height of buildings development standard of 9.5m. Some of the properties in the R1 zone on the northern side of Marrickville Road have a height of buildings development standard of 14m. 2. The site, the properties in the R1 zone and the properties in the R2 zone have a floor space ratio (FSR) of 0.6:1 (cl 4.4 and Floor Space Ratio Map FSR_002 of LEP 2011). Clause 4.4(2A) allows development for the purpose of attached housing on land which includes the site to have a greater FSR depending on the area of the site. 3. DCP 2011 applies to the site at Section 1.1.3. 4. The site is located within the Ness Park Planning Precinct (Precinct 21) under Part 9.21 of DCP 2011, which includes the following map of the precinct: 1. The desired future character of the Ness Park Precinct, at Section 9.21.2 of DCP 2011, includes the following: "9.21.1 Existing character … The subdivision pattern is characterised by a mix of small and medium sized allotments. Streets of medium sized allotments are particularly evident in the southwestern area of the precinct. … The land-use pattern of the precinct consists mainly of low density residential development. There are a few medium density residential developments scattered throughout the precinct. Dwellings consist mainly of a mix of Federation and Inter-War dwelling houses. Whilst the majority of those dwellings are detached, semi-detached dwellings are also located within this precinct. The majority of buildings maintain a single storey appearance from the street. A collection of intact, Inter-War semi detached dwellings can be found in Jocelyn Avenue. Generally setbacks are consistent and front yards are consistently soft landscaped. The majority of the buildings are constructed from face brick, and this is also commonly present in front fencing." "9.21.2 Desired future character The desired future character of the area is: … 3. To maintain distinctly single storey streetscapes that exist within the precinct. … 5. To protect significant streetscapes and/or public domain elements within the precinct including landscaping, fencing, open space, sandstone kerbing and guttering, views and vistas and prevailing subdivision patterns. 6. To preserve the predominantly low density residential character of the precinct. …" 1. The objectives and controls for residential subdivision are at Section 3.2.2 of DCP 2011 and include the following: "The residential subdivision pattern of the Marrickville Local Government Area is characterised by small lot subdivisions of attached and detached row housing along the northern and eastern parts, and larger lot subdivisions with detached housing in the western and southern areas. In response to the diversity of household sizes and open space needs, Council's subdivision controls permit a variety of lot sizes provided the allotment size and shape relate to the existing subdivision pattern of the locality, the context of the site, and can adequately provide room for open space, parking and landscaping. … As development on any newly created allotment can potentially impact on the streetscape and amenity of the locality, it is essential that all design elements contained in this DCP are considered at subdivision stage. This will ensure future development on the site maintains and enhances the character and amenity of the locality. Objectives O3 To retain the prevailing cadastral character of the street. O4 To ensure that the size of new allotments caters for a variety of dwelling and household types and permits adequate solar access, areas for open space, landscaping and car parking. O5 To ensure that the subdivision or amalgamation of sites reflects and reinforces the predominant subdivision pattern of the street. Controls C5 The proposed subdivision or amalgamation must have characteristics similar to the prevailing cadastral pattern of the lots fronting the same street, in terms of area, dimensions, shape and orientation. For the purpose of this control, Council generally considers the 'prevailing cadastral pattern' to be the typical characteristics of up to ten allotments on either side of the subject site and corresponding number of allotments directly opposite the subject site, if applicable. NB Properties located in the surrounding streets do not form part of the streetscape context, and are therefore not taken into account to determine the prevailing subdivision pattern. …" 1. The objectives and controls for streetscape and design are at Section 4.1.5 of DCP 2011 and include the following: "NB "The streetscape" is defined as: Street attributes being the combination of elements within a street which create the urban form of that street. It includes building forms and styles, landscaping, street furniture, street trees, pavements and fencing; and Properties adjoining and adjacent on either side of the subject site, fronting the same street, and the corresponding range of properties opposite. In most instances it is appropriate to consider up to ten allotments on either side of the subject site. In effect, properties located in the immediate vicinity of the subject site form part of the streetscape context. Objectives O8 To ensure development in streetscapes with a visual cohesiveness and an identifiable uniformity in bulk, scale and height complements that uniformity. O9 To encourage contemporary design for new dwellings and infill development that complements or embellishes the character of an area. Controls C1 New dwellings must address the principal street frontage and be orientated to complement the existing pattern of development found in the street. This pattern will include the spacing between dwellings, the shape and size of lots and the placement of dwellings on those lots. C2 Facade design must enhance the existing built character by interpreting and translating any positive characteristics found in the surrounding locality into design solutions, with particular reference to: i. The massing, which includes overall bulk and arrangement, modulation and articulation of building parts; ii. Roof shape, pitch and overhangs; … C3 The facade of new development must be divided into bays or units of dimensions appropriate to the scale of the building proposed and that of adjoining development. …" 1. The objectives and controls for built form and character are at Section 4.1.6 of DCP 2011, and include the following: "4.1.6.1 Floor space ratio and height Objectives O10 To ensure development is of a scale and form that enhances the character and quality of streetscapes. O11 To ensure alterations and additions to residential period dwellings do not detract from the individual character and appearance of the dwelling being added to and the wider streetscape character. O12 To ensure development allows adequate provision to be made on site for infiltration of stormwater and deep soil tree planting, landscaping and areas of private open space for outdoor recreation. Controls C7 Maximum permissible FSR and height for any development must be consistent with the height and FSR standards prescribed on the Height of Buildings (HOB) and FSR Maps of MLEP 2011. C8 Notwithstanding compliance with the numerical standards, applicants must demonstrate that the bulk and relative mass of development is acceptable for the street and adjoining dwellings in terms of: … ii. Streetscape (bulk and scale); iii. Building setbacks; … vii. Lot size, shape and topography. 4.1.6.2 Building setbacks … Council emphasises a continued building alignment in uniform streetscapes. If there is a need to vary front setbacks, this will be at the discretion of Council. Building to the side boundaries for a proportion of the site may be appropriate to maintain the continuity of building facades in uniform streets or where the lot is narrow and it is impractical to design a workable and functional living area. In these cases, the applicant must demonstrate that the impact to the amenity of adjoining premises is minimal. Setbacks may be varied to suit an individual site's context, especially in some of the highly built up areas to maintain a reasonable level of amenity for adjacent properties. Objectives O13 To ensure adequate separation between buildings for visual and acoustic privacy, solar access and air circulation. O14 To integrate new development with the established setback character of the street and maintain established gardens, trees and vegetation networks. Controls C10 Attached dwellings, dwelling houses and semi-detached dwellings i. Front setback must be: a. Consistent with the setback of adjoining development or the dominant setback found along the street; and b. On corner lots where there is a consistent secondary boundary setback to buildings on opposite street corners, reflected in the design of any proposal. ii. Side setback must be determined in accordance with the following table: 3 storeys, 2.5m" Expert evidence 1. The applicant relied on the expert planning evidence of Michael Gheorghiu and the Council relied on the expert planning evidence of Asher Richardson. 2. The experts agreed that the proposal, with a maximum height of 10.96m, complies with the height of buildings development standard of 11m. 3. The planning experts agreed that the FSR development standards for each proposed lot are 1:1 for Lot 1, 1.1:1 for Lots 2, 3 and 4, and 0.9:1 for Lot 5, for attached housing, pursuant to the table to cl 4.4(2A) of LEP 2011, and that the development on each proposed lot complies with the FSR development standards. Granting a partial consent to the application 1. The applicant submitted that it is open to me to grant a partial consent to the application; by granting consent to the construction of the development excluding the Torrens title subdivision, pursuant to s 4.16(4)(b) of the EPA Act. 2. A recent amendment to LEP 2011 changed the table to cl 4.4(2A) of LEP 2011 to a FSR of 0.6:1 for lots greater than 350sqm (Marrickville Local Environmental Plan 2011 (Amendment No 4) Sch 1 [32]). The amending LEP did not include a savings provision for applications lodged prior to its commencement on 11 December 2020 (Wingecarribee Shire Council v De Angelis [2016] NSWCA 189). The FSR for attached dwellings on the site is 0.6:1. 3. The proposed development, with a gross floor area of 643sqm (Ex 5, p 3), has a FSR of 0.87:1, without the Torrens title subdivision. The exceedance of the FSR development standard would have required a written request pursuant to cl 4.6 of LEP 2011 as a jurisdictional pre-requisite to the grant of consent. 4. As I have determined the application on the basis that each of the Council's contentions are made out by the evidence before me, it is not necessary to give the applicant an opportunity to provide a cl 4.6 written request for the exceedance of the FSR development standard for the grant of consent to the development excluding the Torrens title subdivision, nor is it necessary to ask the parties to address me on this matter. Consideration Subdivision of the site 1. There is no minimum subdivision lot size development standard in LEP 2011 (cl 4.1). The provisions of DCP 2011 address subdivision. I accept the Council's submission that the objectives and controls for residential subdivision under Section 3.2.2 of DCP 2011 address a residential subdivision layout and its relationship to the predominant subdivision pattern, including area, dimensions, shape and orientation, without regard to the proposed built form on the future lot (Fuller v Inner West Council [2019] NSWLEC 1506 at [35] and [69]). 2. The focus of the relevant objectives and controls for residential subdivisions is on the prevailing cadastral pattern of the lots fronting the same street. Any change in zoning within the street is not cited as a relevant consideration in determining whether the area, dimensions, shape and orientation of the proposed lots reflect and reinforce the predominant subdivision pattern of the street. 3. The proposed subdivision orientates the lots east-west, to front South Street. 4. The Respondent's bundle included an analysis of the cadastral pattern in the locality using the Council's Geographical Information Systems mapping software (Ex 2, ff 180-183). The analysis identified the width and area of each lot in the vicinity of the site, including 9 lots to the west of the site and 10 lots to the east of the site along the southern side of Marrickville Road and the lots opposite on the northern side of Marrickville Road; and 11 lots to the south of the site on the western side of South Street and the lots opposite on the eastern side of South Street. 5. The period houses on the corner properties along both sides of Marrickville Road within the vicinity of the site all orientate towards Marrickville Road. Some of the contemporary development on corner sites along Marrickville Road within the vicinity of the site, generally residential flat buildings, orientate to both Marrickville Road and the site street, including 345 Marrickville Road, 371 Marrickville Road and 373 Marrickville Road. For this reason, I accept that there is now an established pattern for corner sites along Marrickville Road within the vicinity of the site to orientate to both frontages. This is a relevant consideration for the subdivision of the site, because the proposed subdivision will result in development that orientates to South Street. 6. The proposed subdivision does not reflect or reinforce the predominant subdivision pattern of Marrickville Road. The proposed subdivision clearly orientates the proposed Lot 5 to South Street, so that the width of the existing site will be read as the length of the proposed Lot 5 because the development of Lot 5 will be viewed in the round, from the north, the east and from the west across the front setback of the adjoining property. The lots along Marrickville Road are of greater width and significantly larger in area than the proposed subdivision. 7. As the proposed subdivision orientates the lots to South Street, it is appropriate to test the proposed subdivision against the prevailing cadastral character of South Street, for the purpose of establishing if the proposal achieves the objects of Section 3.2.2 of DCP 2011. The prevailing cadastral character of South Street is different to Marrickville Road, with generally narrower lots. The subdivision of South Street has typically resulted in period housing that is semi-detached, or with narrow passages between houses, and many houses that are long and narrow. 8. The western side of South Street, to the south of Crawford Place, includes lots that are typically 7.6m to 8m wide with areas that range from 274sqm to above 400sqm. The eastern side of South Street includes lots that are either 6m wide with areas around 260sqm, or 12m wide with areas around 480sqm. 9. The proposed subdivision has three central lots at 5.7m wide, with wider lots at each end. The lots are considerably shallower than any other lots in South Street, with a depth of 21.58m and this results in areas ranging from 123sqm to 218sqm, which are considerably smaller than lots within the vicinity of the site. 10. According to Mr Gheorghiu, the rhythm of the subdivision pattern along South Street is broken between the site and the adjoining medical centre, and so most of Control 5 (Section 3.2.2 of DCP 2011) does not apply, however, the proposal attempts to reintroduce a subdivision pattern and lot width to South Street that is consistent with the existing character. 11. According to Mr Richardson, the proposed subdivision results in lots that are not of a site area, dimension or shape that reflects the prevailing subdivision pattern found in South Street. The lots are approximately half the depth and significantly narrower than the prevailing subdivision pattern of subdivision in South Street. In his view, the proposed lots are not of a site area, dimension, shape or orientation that reflects or reinforces the prevailing subdivision pattern of either Marrickville Road or South Street. 12. I accept and prefer Mr Richardson's evidence, although I find that the orientation of the proposed lots is consistent with the established pattern for contemporary development on corner sites along Marrickville Road to orientate to both frontages. The proposed lots are significantly narrower and smaller than the prevailing cadastral character of South Street and the proposal does not reflect or reinforce the predominant subdivision pattern of the street. 13. The terms of cl 4.4(2A) of LEP 2011 incentivise a subdivision of small lots because the clause increases the FSR development standard for certain development on smaller lots, allowing a greater overall gross floor area for a site when it is subdivided into small lots, compared to the allowable gross floor area for the site without a Torrens title subdivision. The proposed development 1. According to Mr Gheorghiu, it is unnecessary and overly restrictive to consider the scale and uniformity of the development in relation to the streetscape given the unique block that the subject site is located within and cotemporary architectural style within the block. In his view, the proposal attempts to re-introduce a subdivision pattern and lot with to South Street that is consistent with the existing character and conserved a more appropriate control to satisfy. 2. According to Mr Richardson, the proposal does not address the principal street frontage, being Marrickville Road and the dwellings are not orientated to complement the existing pattern of development found on Marrickville Road. The attached dwellings are inconsistent with the pattern of development found on Marrickville Road and Short Street, which is characterised by free standing dwelling houses and medium density residential development. In his view, the proposal is not consistent with the desired future character of the area. The dwellings are not divided into bays or units of dimensions appropriate to the scale of the building proposed and that of adjoining development. 3. In Mr Richardson's opinion, the ground floors of the proposal are raised above ground level, and this adds to the bulk and scale of the proposal, notwithstanding its compliance with the height of buildings development standard. 4. I accept that the R1 zoning and the increased height of buildings development standard for the R1 zone of 11m, when compared to the height of buildings development standard of 9.5m for the R2 zone, results in a different character being dictated for the properties fronting Marrickville within this block bounded by Harney and South Streets. For this reason, the development of these properties is unlikely to achieve a low density residential character, or a distinctly single storey streetscape, as prescribed for the Ness Park Precinct at Section 9.21.2 of DCP 2011. I accept Mr Gheorghiu's evidence that this is a unique block. Nevertheless, the proposed development has a bulk and scale that does not complement or embellish the character of the area. The proposal has sought to maximise the building envelope on the site by subdividing the site into small, atypical lots and the resulting proposal does not complement the existing pattern of development. 5. The following aspects of the design of the proposal are poorly resolved and demonstrate that the proposal is not infill development that complements or embellishes the character of the area: * The fire egress stair from the basement to the front boundary in the Marrickville Road setback compromises the character of the development, as it is an atypical element in the setback that has been poorly resolved in the design of the proposal. * The access from the car parking in the basement to enter T3 and T5 is poor, because the spatial layout of the proposal requires the future residents of these three dwellings to access their dwelling from the basement parking via the exit out onto the footpath on Marrickville Road, and then re-enter the site by walking along the footpath to the front entry gate to their dwelling on South Street and up to their front door. In wet weather, or with heavy parcels, this is inconvenient and burdensome. * The relationship between the driveway entry to the site, the raised dining room of T3 overhanging the driveway (Ex A, dwg no. 08) and the narrow pedestrian entry to T3 wedged beside the driveway (Ex A, dwg no. 03) is compromised. Conclusion 1. The proposed lots are significantly narrower and smaller than the prevailing cadastral character of both Marrickville Road and South Street and the proposal does not reflect or reinforce the predominant subdivision pattern of the street. The area, dimensions and shape of the proposed subdivision is inconsistent with the prevailing cadastral pattern. 2. The proposed subdivision has generated a proposed development that has a form and character that does not complement the existing pattern of development found in either Marrickville Road or South Street. The bulk and scale of the development is considerably greater than and contrary to the established character of the area, because it results in large dwellings on uncharacteristically small lots. There are aspects of the design of the proposal that are poorly resolved and would detract from the established character of the locality. 3. The relationship between the proposed dwellings and the basement parking, particularly the dominant driveway entry to the basement in the front setback of T3, is not conducive to a Torrens title subdivision, because any future redevelopment of the site would have to be achieved co-operatively between the resulting lots of the proposal. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 2020/0352 for the construction of five townhouses with basement parking and associated landscaping over basement parking and Torrens title subdivision into five lots, at 436 Marrickville Road, Marrickville, is refused. 3. The exhibits, other than Exhibits 3, A and P, are returned. ____________ Susan O'Neill Commissioner of the Court ********** 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: 20 January 2021