Maloney v Inner West Council [2018] NSWLEC 1269

Land and Environment Court New South Wales

Medium Neutral Citation: Maloney v Inner West Council [2018] NSWLEC 1269 Hearing dates: 4 and 5 April 2018 Date of orders: 06 June 2018 Decision date: 06 June 2018 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders:

(1) The appeal is dismissed. (2) The Applicant's Development Application (DA201600410) for demolition of a garage, Torrens title subdivision of land from one lot into two lots, and construction of a two storey dwelling, is determined by refusal. (3) The exhibits are returned. Catchwords: DEVELOPMENT APPLICATION: proposed subdivision of land; Marrickville DCP 2011 section 3.2.2 Control C5; prevailing cadastral pattern; anomalous street and lot configurations; interpretation of the term 'same street'. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Development Control Plan 2011 Marrickville Local Environment Plan 2011 Cases Cited: Nil Category: Principal judgment Parties: Mark Leon Maloney (Applicant) Inner West Council (Respondent) Representation: Counsel: T Robertson (Applicant)

Solicitors: DC Balog & Associates (Applicant) G Christmas, Apex Planning and Environment Law (Respondent) File Number(s): 2017/162109 Publication restriction: No

Judgment

Background 1. COMMISSIONER: Mark Leon Maloney (the Applicant) has appealed a decision by Inner West Council (the Respondent) to refuse his development application (DA201600410) for demolition of a garage, the subdivision of one lot into two lots, and the construction of a two-storey dwelling on one of the newly created lots. 2. The appeal is made pursuant to section 97 (now section s8.7) of the Environmental Planning and Assessment Act 1979 (EP&A Act). 3. The Subject Site is located at 342 Unwins Bridge Rd, Tempe, on the south-eastern side of that street. It backs onto Hudson Street, Tempe. 4. The Subject Site has a frontage to Unwins Bridge Road of 9.97m, a depth of 49.985m on its north eastern boundary and 50.025m on its south western boundary, and an area of 512.2m2. It includes a single story dwelling which fronts Unwins Bridge Road, and a garage structure at the rear of the property which can be accessed from Hudson Street. 5. The Applicant proposes that the Subject Site be subdivided into two Torrens Title lots (referred to in these proceedings as proposed Lots 11 and 12), and further proposes that: 1. the existing dwelling on the Subject Site, fronting Unwins Bridge Road, be retained on proposed Lot 11 with an area of 306.76m2; and 2. a new two storey dwelling be constructed on proposed Lot 12 which would front on to Hudson St with an area of 205.44m2. 1. Hudson Street, at the rear of the Subject Site, forms a termination to John Street, which was referred to during the hearing as the 'hammerhead' end of John Street. 2. The configuration of the Subject Site and its relationship to surrounding streets is illustrated in the figure below (extracted from a Google Maps image). 1. The appeal was the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the LEC Act) on 6 November 2016. The conciliation conference did not resolve contentions between the Parties and the conference was terminated and the matter was listed for hearing. 2. At the commencement of the hearing, an inspection of the Subject Site was undertaken, during which submissions were made to the Court by the following objectors: 1. Ms Sandra Robertson, of 344 Unwins Bridge Road, who raised the following matters in relation to the proposed development: 1. the potential impacts of the proposed development on her property located adjacent to the Subject Site, specifically in relation to overshadowing, privacy, and the bulk/scale of the proposed new dwelling on proposed Lot 12; and 2. the potential for the proposed development, if approved, to create an undesirable precedent for other development in the area. 1. Ms Merle Mendonca and Mr Michael Pinto, of 346 Unwins Bridge Road, who raised the following matters in relation to the proposed development: 1. its inconsistency with the prevailing cadastral subdivision pattern; and 2. the potential impact of the proposed development, and specifically the proposed dwelling on proposed Lot 12, with respect to its bulk/scale, privacy, overshadowing, and visual impacts.