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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.
Statutory context
Environmental Planning and Assessment Act 1979
1. The Environmental Planning and Assessment Act 1979 (EP&A Act) section 79C(1) (now section 4.15(1)) requires that in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and
(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ),
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.".
1. Section 79C(3A) Development Control Plans of the EP&A Act (now section 4.15(3A)), further provides that:
If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c) may consider those provisions only in connection with the assessment of that development application.
1. Development on the Subject Site is subject to the provisions of Marrickville Local Environment Plan 2011 (MLEP).
2. Under MLEP the Subject Site is zoned R2 Low Density Residential. The objectives of the R2 zone are to:
* provide for the housing needs of the community within a low density residential environment;
* enable other land uses that provide facilities or services to meet the day to day needs of residents;
* provide for multi dwelling housing and residential flat buildings but only as part of the conversion of existing industrial and warehouse buildings;
* provide for office premises but only as part of the conversion of existing industrial and warehouse buildings or in existing buildings designed and constructed for commercial purposes;
* provide for retail premises in existing buildings designed and constructed for commercial purposes.
1. Subdivision of land, demolition of existing structures and the erection of a dwelling house are permissible with consent within the Subject Site's R2 zoning.
2. Other provisions of MLEP that are of particular relevance in this appeal are:
1. Clause 2.6 Subdivision, which provides that:
(1) Land to which this Plan applies may be subdivided, but only with development consent.
Notes.
1 If a subdivision is specified as exempt development in an applicable environmental planning instrument, such as this Plan or State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, the Act enables it to be carried out without development consent.
2 Part 6 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 provides that the strata subdivision of a building in certain circumstances is complying development.
(2) Development consent must not be granted for the subdivision of land on which a secondary dwelling is situated if the subdivision would result in the principal dwelling and the secondary dwelling being situated on separate lots, unless the resulting lots are not less than the minimum size shown on the Lot Size Map in relation to that land.
Note. The definition of secondary dwelling in the Dictionary requires the dwelling to be on the same lot of land as the principal dwelling
1. As a consequence of this clause the Subject Site may be subdivided with consent. As there is no secondary dwelling on the Subject Site in its current configuration, the provisions of cl2.6(2) are not triggered.
2. Following subdivision, it is proposed that each of the two resulting lots would include a primary dwelling.
1. Clause 2.7 Demolition, which provides:
The demolition of a building or work may be carried out only with development consent.
Note. If the demolition of a building or work is identified in an applicable environmental planning instrument, such as this Plan or State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, as exempt development, the Act enables it to be carried out without development consent
1. Clause 4.3 Height, which provides that:
(1) The objectives of this clause are as follows:
(a) to establish the maximum height of buildings,
(b) to ensure building height is consistent with the desired future character of an area,
(c) to ensure buildings and public areas continue to receive satisfactory exposure to the sky and sunlight,
(d) to nominate heights that will provide an appropriate transition in built form and land use intensity.
(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.
1. The agreed position of the Parties was that the dwellings proposed for each of proposed lots 11 and 12 were compliant with the height controls applicable to those lots.
1. Clause 4.4 Floor Space Ratio (FSR), which provides that:
(1) The objectives of this clause are as follows:
(a) to establish the maximum floor space ratio,
(b) to control building density and bulk in relation to the site area in order to achieve the desired future character for different areas,
(c) to minimise adverse environmental impacts on adjoining properties and the public domain.
(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.
(2A) Despite subclause (2), development for the purposes of attached dwellings, bed and breakfast accommodation, dwelling houses and semi-detached dwellings on land labelled "F" on the Floor Space Ratio Map is not to exceed the relevant floor space ratio determined in accordance with the Table to this subclause.
1. The Subject Site is located on land labelled "F" on the Floor Space Ratio Map, and as a consequence, the provisions of the table referred to sub-clause 2A apply.
2. The table requires that:
1. for lots with an area of 200-250m2, the maximum FSR of a dwelling on the lot is 0.9:1;
2. for lots with an area of 300-350m2, the maximum FSR of a dwelling on the lot is 0.7:1.
1. The Parties agreed that the dwellings proposed for each of proposed Lots 11 and 12, were compliant with the FSR requirements of cl4.4 of MLEP.
1. Clause 6.5 Development in Areas Subject to Aircraft Noise, which provides as follows:
(1) The objectives of this clause are as follows:
(a) to prevent certain noise sensitive developments from being located near the Kingsford Smith Airport and its flight paths,
(b) to assist in minimising the impact of aircraft noise from that airport and its flight paths by requiring appropriate noise attenuation measures in noise sensitive buildings,
(c) to ensure that land use and development in the vicinity of that airport do not hinder or have any other adverse impacts on the ongoing, safe and efficient operation of that airport.
(2) This clause applies to development:
(a) that is on land that is near the Kingsford Smith Airport and in an ANEF contour of 20 or greater, and
(b) that the consent authority considers is likely to be adversely affected by aircraft noise, and
(c) that involves any one or more of the following:
(i) the erection of a new building,
(ii) a substantial alteration or addition to an existing building,
(iii) an alteration or addition to a building that is required by a development consent to be compliant with AS 2021:2015,
(iv) the change of use of any part of a building to a centre-based child care facility, educational establishment, entertainment facility, health services facility, place of public worship, public administration building or residential accommodation,
(v) the change of use of any part of a building on land that is in an ANEF contour of 25 or greater to business premises, a hostel, office premises, retail premises or tourist and visitor accommodation,
(vi) the change of use of any part of a building on land that is in an ANEF contour of 30 or greater to light industry.
(3) Before determining a development application for development to which this clause applies, the consent authority:
(a) must consider whether the development will result in the creation of a new dwelling, or an increase in the number of dwellings or people affected by aircraft noise, and
(b) must consider the location of the development in relation to the criteria set out in Table 2.1 (Building Site Acceptability Based on ANEF Zones) in AS 2021:2015, and
(c) must be satisfied the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021:2015.
(4) In this clause:
ANEF contour means a noise exposure contour shown as an ANEF contour on the Noise Exposure Forecast Contour Map for the Kingsford Smith Airport prepared by the Department of the Commonwealth responsible for airports.
AS 2021:2015 means AS 2021:2015, Acoustics—Aircraft noise intrusion—Building siting and construction.
1. The Parties agreed that, should the proposed development receive consent, the requirements of this clause would be addressed through an appropriately drafted condition of consent, which the Parties tendered as evidence during the hearing.
1. Development on the Subject Site is also subject to the provisions of the Marrickville Development Control Plan 2011 (MDCP), the following provisions of which are of relevance in this appeal:
1. Part 2 (Generic Provisions), and in particular:
1. Part 2.1 Urban Design, includes:
1. urban design principles;
2. a description of the contribution of streetscape and townscape to urban design, in which the contribution of a subdivision pattern is noted; and
3. in-fill design guidelines, noting, inter alia, that mock replications of period buildings should be avoided, and that the contribution that contemporary design of buildings can make to character of an area.
1. Part 2.7 Solar Access, including requirements to be met by proposed developments in terms of the solar access to be provided to surrounding buildings. This part of MDCP provides a series of controls for proposed development in relation to maintaining solar access to neighbouring buildings, as follows:
C2 Direct solar access to windows of principal living areas and principal areas of open space of nearby residential accommodation must:
i. Not be reduced to less than two hours between 9.00am and
3.00pm on 21 June; or
ii. Where less than two hours of sunlight is currently available on 21
June, solar access should not be further reduced. However, if the
development proposal results in a further decrease in sunlight
available on 21 June, Council will consider:
a. The development potential of the site;
b. The particular circumstances of the neighbouring site(s), for
example, the proximity of any residential accommodation to
the boundary, the resultant proximity of windows to the
boundary, and whether this makes compliance difficult;
c. Any exceptional circumstances of the subject site such as
heritage, built form or topography; and
d. Whether the sunlight available in March to September is
significantly reduced, such that it impacts upon the functioning
of principal living areas and the principal areas of open space.
To ensure compliance with this control, separate shadow diagrams for the March/September period must be submitted in accordance with the requirements of C1;
Where less than two hours of sunlight is currently available on 21 June and the proposal is not reducing it any further, Council will still consider the merits of the case having regard to the above criteria described in points a to d.
C4 Council will also consider the overshadowing impacts of a proposal upon a window which provides ambient light to a principal living area within a neighbouring dwelling where that window results in the only source of light to that room.
1. Part 2.10 Parking, although parking was not pressed by the Respondent as a contention in this appeal;
2. Part 2.18 Landscape and Open Spaces although landscaping was not pressed by the Respondent as a contention in this appeal.
1. Part 3 (Subdivision, Amalgamation and Movement Networks), which provides:
1. under Part 3.2.1 (General Torrens Title Subdivision and Amalgamation), the following objectives:
O1 To ensure site features and constraints are considered as part of the Subdivision;
O2 To ensure subdivision relating to existing uses is appropriately considered.
1. under Part 3.2.2, (Residential Torrens Title Subdivision and Amalgamation), the following objectives and controls:
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.
C6 Proposed lots must be of a size, and have dimensions to enable, the siting and construction of a dwelling and ancillary buildings that:
i. Protect any natural or cultural features, including heritage items and their curtilage;
ii. Acknowledge site constraints such as terrain or soil erosion;
iii. Address the street;
iv. Minimise impact on neighbours' amenity including access to sunlight, daylight, privacy and views;
v. Provide usable outdoor open space;
vi. Provide activities for relaxation, recreation, outdoor dining and children's play areas; and
vii. Provide convenient pedestrian, bicycle and motor vehicle access and parking.
C7 Subdivision or site amalgamation must not compromise the setting of any existing building on the site or the setting of adjoining sites.
C8 Where a proposal for subdivision or site amalgamation involves the creation of new allotments, the development application must be accompanied by a conceptual building plan, demonstrating that the relevant DCP controls can be complied with.
1. Part 4 (Low Density Residential Development), which in section 4.1 provides objectives and controls to guide low density residential development in areas including the Subject Site.
2. Part 9 (Strategic Context), which includes statements for the desired future character for precincts covered by MDCP, including the Unwins Bridge Road precinct (Precinct 31), within which the Subject Site is located, and which includes the following element of desired future character:
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.
Contentions
1. At the commencement of the hearing the Respondent advised that the proposed development's compliance with parking requirements under MDCP 2011, and which had been in contention between the Parties, was no longer pressed.
2. Additionally, during the hearing the Parties confirmed that:
1. there is no numeric control in relation to the size of lots that may be created by subdivision of the Subject Site. They noted that the principal controls in relation to the subdivision of the Subject Site were those provided within MDCP 2011 (see [16(2)] above);
2. the design of the dwelling proposed for construction on the proposed Lot 12 was compliant with the height and FSR controls within MLEP (see paragraphs [15(3)] and [15(4) above], respectively).
1. The principal contentions between the Parties during the hearing addressed the following questions:
1. Is the proposed subdivision compliant with the controls for residential subdivision in MDCP Part 3, in particular section 3.2.2, as noted above at [16(2)]?
2. Are the overshadowing impacts of the proposed development on neighbouring properties acceptable?
3. Are the presentation and streetscape impacts of the dwelling proposed for construction on proposed Lot 12 acceptable?
1. These contentions are addressed below.
Is the proposed subdivision compliant with the controls for residential subdivision in MDCP 2011 Part 3, in particular section 3.2.2?
The requirements of section 3.2.2 of MDCP Part 3
1. As noted above at [5], the Applicant has proposed that the Subject Site be subdivided into two lots, referred to as proposed Lots 11 and 12.
2. Also as noted above at [16(2)], section 3.2.2 of MDCP Part 3 provides controls in relation to Torrens title subdivision of land for residential purposes, and which notes states that:
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.
1. The Subject Site is located in the southern area of the Marrickville LGA, in the area described in MDCP as being characterised by 'larger lot subdivisions with detached housing'.
2. Section 3.2.2 of MDCP Part 3 also states that:
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.
1. The objectives of section 3.2.2 of MDCP 2011 Part 3 that are of particular relevance to this contention are:
O3 To retain the prevailing cadastral character of the street.
O5 To ensure that the subdivision or amalgamation of sites reflects and reinforces the predominant subdivision pattern of the street.
1. The principal control within section 3.2.2 of MDCP Part 3 that gives effect to these objectives is Control C5 (hereafter referred to simply as C5), which provides as follows:
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.
What are the characteristics of the prevailing cadastral pattern of the current Subject Site?
1. The location of the Subject Site is indicated by the red outline in the aerial photograph below.
2. The green line in that aerial photograph illustrates the line of proposed subdivision of the Subject Site into proposed Lots 11 and 12.
3. The photograph is oriented north (top) to south (bottom). Proposed Lot 11 is occupies the north-west (NW) portion of the Subject Site, and proposed Lot 12 occupies its south-east (SE) portion.
1. This figure was tendered as evidence by the Respondent during the hearing. The red outline of the Subject Site, and the green line delineating the proposed subdivision, have been added to support interpretation of proposed lot descriptions and locations in this judgment.
2. The Subject Site is currently rectangular in shape, and is oriented NW/SE. The current frontage of the Subject Site is to Unwins Bridge Road at its NW end. It has a frontage width to Unwins Bridge Road of 9.97m. The lot depth is 49.985m along its north-east (NE) boundary and 50.025m along its south-west (SW) boundary.
3. The proposed subdivision would result in two lots with the same orientation as the Subject Site, and, while the lots would be smaller in area than the current lots, each would be rectangular in shape.
4. C5 provides that:
1. the subdivision 'must have characteristics similar to the prevailing cadastral pattern of the lots fronting the same street, in terms of area, dimensions, shape and orientation', and this should be based on a comparison with 'the typical characteristics of up to ten allotments on either side of the subject site'; and
2. "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".
1. The nature of the prevailing cadastral pattern of the Subject Site was the subject of evidence in a joint report, and testimony during the hearing, from the expert planners, Mr Jeremy Swan (for the Applicant) and Mr Garry Chapman (for the Respondent).
2. The joint report of these expert planners was tendered as evidence during the hearing. This document included, as Appendix 4, a 'Subdivision Pattern Study' prepared by Mr Swan.
3. This study included an aerial photograph highlighting the Subject Site's location in relation to surrounding roads and allotments, and also included details of the dimensions of lots located either side of the Subject Site along Unwins Bridge Rd between Foreman Street to its SW and Lymerston Street to its NE.
4. The illustration from Appendix 4 of the expert planners' joint report is reproduced below.
1. The NW/SE orientation of the Subject Site, and its rectangular shape, are confirmed in this illustration, as is its consistency with the orientation of the nine lots to its SW towards Foreman Street and with the ten lots to its NE towards Lymerston Street.
2. Based on the data provided in the Subdivision Pattern Study prepared by Mr Swan, the nine lots to the SW of the Subject Site have a depth of 50m, which is consistent with the current depth of the Subject Site.
3. However, the widths of these nine lots vary between 6m and 11m. As a consequence of these inconsistent lot widths, the areas of those nine lots are also inconsistent, and vary between 295m2 and 560m2.
4. Based on these data, I conclude that the current configuration of the Subject Site is consistent with the prevailing cadastral pattern of lots to its SW, which are characterised by the following predominant features, and which, taken together, in my view represent the prevailing cadastral pattern of those lots:
1. a consistent lot length (50m);
2. a consistent orientation (NW/SE); and
3. a rectangular shape.
1. Based on the data provided in Subdivision Pattern Study prepared by Mr Swan, lots to the NE of the Subject Site with a frontage to Unwins Bridge Road exhibit a different cadastral pattern to those on the SW side of the Subject Site. That prevailing cadastral pattern is characterised by the following features:
1. a consistent lot length (31m).
2. a consistent orientation (NW/SE), and
3. a rectangular shape.
1. The frontage widths and areas of the lots to the NE of the Subject Site, like those to the SW, vary between 7.7m and 10.2m, and as a consequence their lot areas are inconsistent, and range between 242m2 and 320m2.
Is proposed Lot 11 compliant with the provisions of C5?
1. C5 requires that the lots created through subdivision must have characteristics similar to the prevailing cadastral pattern of the lots fronting the same street, in terms of area, dimensions, shape and orientation, where the prevailing cadastral pattern is based on 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.
2. Proposed Lot 11 would front Unwins Bridge Road.
3. The depth of proposed Lot 11 would be between 30.345m and 30.185m, with an average width of 30.265m. The 10 lots of the NE of that proposed lot each have a depth of 31m. The difference in length of proposed Lot 11 compared to the lots to its NE side is approximately 2.3%. I consider this difference to be minor for the purposes of interpreting compliance with C5. Consequently, in my assessment, the depth of proposed Lot 11 is similar to depths of the 10 allotments on its NE side.
4. Proposed Lot 11 would also have a NW/SE orientation which is consistent with the orientation of the lots on either side of the Subject Site between Foreman Street and Lymerston Street. Its rectangular shape is also similar to the shape of those lots.
5. Based on this I am of the view that the shape and orientation of proposed Lot 11 is similar to the shape and orientation of the 10 lots to its NE.
6. Proposed Lot 11 also has a similar lot depth to those lots to its NE side.
7. The area of proposed Lot 11 differs to its neighbours to the NE, principally due to its different frontage width. However, I note that the areas of lots to the NE are also inconsistent, due to their varying frontage widths.
8. On this basis, I accept that the proposed Lot 11 has characteristics that are similar to the prevailing cadastral pattern to the NE of the Subject Site, and I conclude that this is sufficient for it to be compliant with the provisions of C5.
9. I also note that during the hearing, neither Party, nor their expert planners, contended that proposed Lot 11 was other than compliant with the provisions of C5.
Is proposed Lot 12 compliant with the provisions of C5?
1. In contrast to proposed Lot 11, the expert planners did not agree as to the compliance of proposed Lot 12 with the provisions of C5.
2. Proposed Lot 12 would have a frontage to Hudson St.
3. The characteristics of proposed Lot 12 are that it would have:
1. a depth of between 19m and 20m (19.84m on one side and 19.64m on the other, with average depth of 19.74m);
2. a frontage width of 10.51m;
3. an area of 205.44m2;
4. a NW/SE orientation;
5. a rectangular configuration.
1. C5 requires that the proposed subdivision must have characteristics similar to the prevailing cadastral pattern of the lots fronting the same street, in terms of area, dimensions, shape and orientation, where, the 'prevailing cadastral pattern' is generally held to be established by the typical characteristics of up to ten allotments:
1. on either side of the subject site; and
2. a corresponding number of allotments directly opposite the subject site, if applicable.
1. I will address first the question of the similarity of the proposed Lot 12 with the characteristics of prevailing cadastral pattern of the lots fronting the same street, in terms of area, dimensions, shape and orientation.
2. I will then examine the question of the similarity of the proposed Lot 12 with the characteristics of prevailing cadastral pattern of a corresponding number of allotments directly opposite that lot, in terms of the same factors.
Does proposed Lot 12 have similar characteristics to the prevailing cadastral pattern of the lots on either side of the subject site fronting the same street?
1. The lots to the SW of proposed Lot 12 are 344 and 346 Unwins Bridge Rd. While these lots have rear access to Hudson Street, they front Unwins Bridge Road. Consequently, based on the requirements of C5 that the comparison should be with lots fronting the same street, these allotments cannot form a basis for assessment of compliance with C5.
2. Consideration should then be given as to whether the proposed Lot 12 has characteristics consistent with the prevailing cadastral pattern of allotments to its NE side.
3. This was the subject of evidence during the hearing from the expert planners, and on which the experts provided differing opinions.
4. The configuration of Hudson Street and its relationship to John St was addressed above at [6] and [7].
5. Within the joint report of the planning experts, and in his testimony during the hearing, Mr Chapman was of the opinion that Hudson Street, as the so-called 'hammerhead end' of John Street, and John Street itself, should be taken together as forming a single street for the purposes of assessing compliance of proposed Lot 12 with the provisions of C5.
6. Mr Chapman stated in the joint report of the expert planners that, in his opinion, proposed Lot 12, being at a 'cul-de-sac head of Hudson Street', did not relate to the existing subdivision pattern of the locality, and he said that this was illustrated in the aerial photograph (above between paragraphs [37] and [38]) drawn from the Subdivision Pattern Study in the joint report.
7. He said that, in his opinion, proposed Lot 12 should be assessed against the characteristics of the prevailing cadastral pattern of the lots on the 'western side' of John Street, for the purposes of assessing compliance with C5. The lots on the 'western side' of John Street to which he referred were those lots referenced in this judgment as being located to the NE side of proposed Lot 12.
8. Mr Chapman said that, based on his opinion at [63], proposed Lot 12, while oriented NW/SE, did not have other essential characteristics required for it to be similar to the prevailing cadastral pattern established by the ten allotments to its NE side.
9. Mr Swan had stated in the joint report that, based on his Subdivision Pattern Study:
1. there is a wide range of lot sizes in the area around the Subject Site, including lots of similar size to the proposed Lot 12. In support of this Mr Swan said that he had identified three lots with similar area to proposed Lot 11. These lots were located on the eastern side of John Street, along with two lots in Way Street (opposite proposed Lot 11 and off Unwins Bridge Road), and one lot fronting Unwins Bridge Road.
2. there is a wide range of lot dimensions within the area around the Subject Site. He also said that this was also illustrated by the lots identified above at [(1)];
3. most lots in the area were rectangular shape, consistent with the shape of proposed Lot 12;
4. many lots in the area have a NW/SE orientation consistent with the orientation of proposed Lot 12;
5. the frontage width of proposed Lot 12 is wider than the majority of lots in the area.
1. Based on these points, Mr Swan concluded that the proposed subdivision of the Subject Site, including the creation of proposed Lot 12, satisfied the objectives of the subdivision controls in section 3.2.2 of MDCP, and the provisions of C5.
2. The expert planners also gave evidence in relation to proposed Lot 12 during the hearing.
3. Mr Chapman's evidence, consistent with his evidence in the expert report, was that, irrespective of the merits of the dwelling proposed for construction on Lot 12, he did not support the Applicant's proposed subdivision and, in particular, the creation of proposed Lot 12.
4. Mr Chapman said that for the purposes of assessing compliance of the proposed development with C5 he did not 'read' Hudson Street as being a different street to John Street. He said that the so-called hammerhead arrangement of Hudson Street at the top end of John Street created an anomalous area in relation to the prevailing cadastral pattern around the Subject Site.
5. Mr Chapman confirmed that, based on his view that Hudson Street and John Street should be read as the same street for the purposes of control C5, it was his opinion that proposed Lot 12 was not similar to the prevailing cadastral pattern of allotments on either of its sides.
6. Mr Swan said that a broader consideration of the lots in John Street and Hudson Street provided examples of similarity to proposed Lot 12 and were sufficient to establish the proposed subdivision was compliant with the provisions of C5.
7. Having considered the differing opinions of the expert planners, and the submissions of the Parties on this point, I favour Mr Chapman's evidence in relation to assessing the compliance of proposed Lot 12 with the provisions of C5, over the assessment of Mr Swan, for the following reasons:
1. The lots upon which Mr Swan based this conclusion are not located in the manner required under C5, including:
1. some of the lots upon which he relied were located on the opposite side of John Street to those which might otherwise be used in the assessment of compliance with C5.
2. some lots were located in Unwins Bridge Road and Way Street.
3. none of the lots were located such they could be considered as being located 'on either side' of proposed Lot 12, as required under the provisions of C5.
1. The lots upon which Mr Chapman relied for his assessment are located immediately to the NE side of proposed Lot 12, and I agree with Mr Chapman that:
1. it is important to establish what constitutes 'the same street' for the purposes of assessing compliance of proposed Lot 12 with the provisions of C5;
2. proposed Lot 12 would front a cul-de-sac end of Hudson Street;
3. the so-called hammerhead arrangement of Hudson Street in relation to the top end of John Street, together with the naming of these streets, is anomalous.
1. In my view, this is supported by the fact that, notwithstanding that a number of other dwellings front onto Hudson Street, all of these dwellings have John Street addresses. This was confirmed in the Subdivision Pattern Study which formed part of the join report of the expert planners.
1. notwithstanding that Hudson Street and John Street are named separately, the functional configuration of these two streets is such that for the purposes of applying the provisions of Control C5, Hudson Street and John Street should be treated as a single street. Reasons also supporting this conclusion include:
1. C5 provides that the 'prevailing cadastral pattern' is generally taken to include the typical characteristics of up to ten allotments on either side of the subject site (my emphasis);
2. the proposed Lot 12 does have two identifiable sides;
3. no allotments fronting the separately named Hudson Street can be identified as being located on either side of proposed Lot 12;
4. ten allotments adjacent to the NE side of proposed Lot 12 are available for assessment of compliance with the provisions of C5. Those lots are 9-25 John Street and 1/328 Unwins Bridge Road (Lot 8 DP375617);
5. nine of these ten allotments front John Street, the exception being the anomalous small allotment at 1/328 Unwins Bridge Road, between 328 Unwins Bridge Road and 13 John Street;
1. the majority (eight of ten) of the allotments to the NE side of proposed Lot 12 have a consistent lot depth of 31m.
2. proposed Lot 12 would have a depth of between 19 m and 20 m, which differs significantly to the depth of those other lots to its NE side;
3. lot depth is an important characteristic in the identification of the prevailing cadastral pattern against which proposed Lot 12 should be assessed;
1. I also observe from the data presented in Mr Swan's Subdivision Pattern Study within the joint report of the expert planners that:
1. the 19m to 20m depth of proposed Lot 12 differed significantly to that of the lots to its NE side, eight of which had depths of 32m;
2. the area of proposed Lot 12 (205m2) fell outside the range of eight of the ten allotments to its north east with consistent lengths of 32m, and each of which had an area between 270m2 and 320m2.
1. In my view, it is the combination of the dimension of consistent lot depth, orientation, and lot shape that are the distinguishing characteristics of the prevailing cadastral pattern applicable to Lot 12 and against which compliance with the provisions of C5 should be assessed.
2. This approach is consistent with the earlier assessments of prevailing cadastral pattern undertaken in respect of the proposed Lot 11 (see [51]) and the current configuration of the Subject Site (see [42]).
3. Given that proposed Lot 12 has substantially different dimensions, most notably a substantially dissimilar lot depth, and a substantially different area, to the lots to its NE side, I agree with the assessment of Mr Chapman that, if created, proposed Lot 12 would not be similar to the prevailing cadastral pattern of lots to its sides as required under C5, and so would not comply with the this aspect of C5.
Does proposed Lot 12 have similar characteristics to the prevailing cadastral pattern of the lots directly opposite the subject site fronting the same street?
1. C5 also provides that, in addition to the lots on either side of the proposed lot, the assessment of characteristics and similarity with the prevailing cadastral pattern can extend to a 'corresponding number of allotments directly opposite the Subject site, if applicable'.
2. In relation to assessing this aspect of C5, the characteristics of the the prevailing cadastral pattern of the lots directly opposite and fronting the same street, and upon which comparison would be based, are also the area, dimensions, shape and orientation, of the relevant lots.
3. Based on the data provided in the Subdivision Pattern Study within joint report of the expert planners, only two allotments could be considered to be located directly opposite proposed Lot 12 on Hudson Street, in my assessment (see figure above between paragraphs [37] and [38]. These are the lots referenced in that figure as numbers 56 and 57, and which have the addresses 30 John Street and 27 William St, Tempe respectively.
4. Of these two lots:
1. only the lot at 30 John Street fronts onto Hudson Street;
2. the lot at 27 William St has a rear yard backing onto Hudson Street.
1. In relation to the one lot directly opposite proposed Lot 12 fronting on Hudson St, that being 30 John St, I am not satisfied that this one lot establishes a prevailing cadastral pattern that could be applied in order to assess the compliance of proposed Lot 12 with the provisions of C5 in terms of lot area, dimensions, shape and orientation.
2. Consequently, I conclude that:
1. proposed Lot 12 would not have characteristics that are similar to a prevailing cadastral pattern established by lots directly opposite that lot on the same street; and
2. proposed Lot 12 does not comply with the provisions of C5 in respect of this further consideration of its characteristics in relation to the prevailing cadastral pattern within which it would be situated.
Consideration of the provisions of Section 79C(3A) Development Control Plans (now section 4.15(3A)) of the EP&A Act
1. As noted at [11], Section 79C (3A)(b) (now section 4.15 (3A)) of the EP&A Act provides that:
If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
….
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.
1. As noted at [78] and [84(2)], the proposed development does not comply with the provisions of C5, which is a provision of a DCP that sets a standard with which the development application in this case does not comply. The Court as consent authority must consider whether the proposed development provides an alternative solution that, notwithstanding the non-achievement of the standard in C5, can nevertheless achieve the objects of that standard.
2. The relevant objects for the consideration of the requirements of s79C(3A) of the EP&A Act are:
O3 To retain the prevailing cadastral character of the street, and .
O5 To ensure that the subdivision or amalgamation of sites reflects and reinforces the predominant subdivision pattern of the street.
1. As discussed above at [78] and [84], I have concluded that the proposed subdivision of the Subject Site does not have characteristics that would establish that it is similar to the prevailing cadastral pattern. As a consequence, I also conclude that:
1. the proposed development cannot retain the prevailing cadastral character of the street; and
2. the proposed subdivision does not ensure that the subdivision of the Subject Site would reflect and reinforce the predominant subdivision pattern of the street.
1. As a consequence, I find that the alternative solution offered by the Applicant in its development application does not achieve the objects of the standard set in C5.
Conclusion
1. Based on the above considerations, I find that:
1. the proposed subdivision of the Subject Site into two lots (proposed Lots 11 and 12) would not result in lots that have characteristics that are similar to the prevailing cadastral pattern as required under the provisions of C5, and so the proposed development does not, therefore, comply with the provisions of C5;
2. the proposed development also does not achieve the objects of the standard in C5, and so does not present an alternative solution that merits flexibility in the application of the standard in C5.
1. I conclude that, based on the findings at [90], the appeal should be dismissed.
2. As a consequence of my conclusion at [91], I do not need to assess the merits of the proposed dwelling on the proposed Lot 12 in relation to the remaining contentions.
Orders
1. The Court orders that:
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.
………………………….
Michael Chilcott
Commissioner of the Court
Amendments
07 June 2018 - Correction to typographical error at para [32].
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Decision last updated: 07 June 2018