Como v Marrickville CC

Brendan Howell v City of Canada Bay Council [2005] NSWLEC 335; CASES CITED: Cracknell and Lonergan v Marrickville CC [2004] NSWLEC 161; Zhang v Canterbury City Council [2001] NSWCA 167

APPLICANT Mr B. Phillips, solicitor of Macedone Christie Willis LEGAL REPRESENTATIVES: RESPONDENT Mr G. Christmas, solicitor of Marrickville Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was delivered extempore and for clarity it has been edited before publication 1 This is an extempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Marrickville Council's refusal of a development application for the subdivision of land. The proceedings today have been conducted as an on-site hearing.

2 The subject site is known as 122 Wardell Road, Marrickville and is on the corner of Pile Street.

3 The proposal is to subdivide the 509 sq m lot into two single Torrens Title allotments. Proposed Lot 1 has an area of 290 sq m and a frontage to Wardell Road of 18.95 m side with a side boundary to Pile Street of 13.26m and a southern boundary of some 24 m. Proposed Lot 2 has a site area of 219 sq m with a 14 m frontage to Pile Street, an eastern boundary of 15.2 m and a southern boundary of 14.35 m. The layout of the dwellings on the site means there is no common property.

4 The history of the application needs to be considered in the context of the Court's assessment in this matter. The council approved a dual occupancy development on the subject lot and the approval also provided for strata title subdivision of the two dwellings to be erected on the site. The two x 2-storey dwellings each have a floor area of approximately 145 m2. The two dwellings are configured such that vehicle access is provided from Pile Street for both dwellings and the garage of each dwelling forms the common wall of the dwellings. The garages for each dwelling are single garages with a tandem space between the garages and the boundary. The corner dwelling has frontage and pedestrian access to Wardell Road. The second dwelling at the rear has frontage to Pile Street. 5 The proposed dual occupancy development complies with council's controls of a maximum FSR 0.6:1, the proposed development is some 0.58:1. According to the applicant the subdivision would in effect merely reflect in a Torrens title what has been approved by the council and there would be no difference in terms of the presentation to the street.

6 The applicant has indicated that it is appropriate to look at the subdivision pattern within the area and not confine it to Wardell Road, I would agree with the concept of looking at the visual catchment area and perhaps a little beyond in terms of the subject site. It is noted that there are number of small lots with narrow frontages, some with semi-detached traditional style single dwelling cottages erected on same. I have given consideration to the sub-division pattern around the subject lot and I have benefit of an inspection of the streets and the evidence of both the applicant and the respondent.

7 The council contends that the proposed development was approved on the basis of a dual occupancy development and that the proposed sub-division would be out of character with the area. The proposed sub-division provides for one lot being of 219 sq m, which is a small lot when I compare it to the existing sub-division pattern around. It also has a different configuration to other allotments around being approximately square as opposed to long rectilinear blocks and it is also noted that there have been no Torrens Title of similar allotments where dual occupancy development has occurred. There is no evidence that there has been a similar sub-division in terms of a Torrens Title sub-division of a dual occupancy development. 8 Mr Christmas, on behalf of the council, submits that the expectations of the owners of a Torrens Title allotment of land are quite different to a body corporate strata title. For example in the future the owners of each lot could reasonably expect to redevelop their lot separately which would detract from the subject site presenting in the streetscape as an integrated development.

9 The applicant submits that there is not the opportunity to consolidate the lot for a larger medium density development as allowed under the 2(b) zone, and the Court does not question this. It is noted that the allotment of land next door that is currently vacant has a development approved.

10 The question for the Court is the appropriateness of a Torrens title sub-division in the circumstances of the case. The Court has the benefit of council's Assessment Officer Ms Lyndon and a Statement of Evidence and the applicant's town planner consultant, Mr Cox, who also provided a statement to the Court. A joint statement was provided to the proceedings that I have also considered.

11 Under the Marrickville Local Environmental Plan 2001 the site is zoned Residential 2(b) and The zoning provides for an objective that is "to identify areas suitable for multi-unit housing and residential flat buildings to a maximum of two-storeys in appearance." The general restrictions on sub-divisions are that one cannot sub-divide without a development consent. The DCP that is relevant to these proceedings is DCP No. 35 Urban Housing Volume 1 and there are provisions or guidelines with respect to sub-division. In section 3A for the sub-division of land it states this is usually followed by its development of one or more dwellings. Sub-division is defined and development consent is required for all proposals involving sub-division. 12 The DCP states: "The residential sub-division pattern of Marrickville is characterised by smaller sub-divisions of attached and detached housing along northern eastern part while large lot sub-divisions with detached housing are found in the western southern areas. In response to the diversity of the house hold-sizes and open space needs, the LEP permits a variety of lot sizes as long as the allotment size and shape relate to the existing sub-division pattern of the locality; the context of the site; and is adequate in size to provide room for open space parking and landscaping. New development of newly created allotments has potential to impact on the streetscape and the amenity, consequently it is essential that the design elements in the DCP are considered as part at the land sub-division stage. This will ensure that future development on the site maintains and enhances the character and amenity of the locality and the sub-division of land shall permit the continuation of the dominate building pattern found in the street." 13 The DCP objectives include: 1. To retain the prevailing sub-division and building character of the street. 2. To ensure the size of new allotments caters for a variety of dwelling and household types and permits adequate solar access, areas of open space, landscaping, carparking 3. To ensure sub-division or amalgamation of allotments reinforces the dominant sub-division pattern of the street. 14 The DCP contains a number of controls in terms of streetscape and C2 states that: o proposed lots shall be of a size and have dimensions to enable the siting and construction of a dwelling and ancillary buildings and amongst those there are criteria for addressing the street, o minimising impact on neighbours, o provide usable outdoor open space, o provide activities for relaxation, recreation, out door and children's play, o provide convenient vehicle access and parking.

15 In the preparation of the sub-division applications the DCP requires applicants to demonstrate certain issues have been considered including: the sub-division pattern within the area, vehicle arrangements, vegetation, landscaping and storm water etc. There is an advisory note that states "the sub-division of dual occupancy development will be considered on merit after consideration of the above objectives and controls."

16 The applicant comes to the Court today agreeing to a 'deferred commencement'. That is, the sub-division is not to take place until after the dwellings, as shown in the approval by the council, have been erected.

17 The Court was referred to two judgments in this Court. The first one of Commissioner Watts in Brendan Howell v City of Canada Bay Council, 24 June 2005 10311 of 2005. In this decision the applicant pointed out in paragraphs 42 and 43: "given that no distinction is made in the DCP between the various forms of sub-division an applicant for either an attached or detached dual occupancy development might expect to sub-divide land that meets the minimum requirements. As an attached dual occupancy development the proposal would comply with certain provisions of the plan and the proposal also meets the minimum allotment area. There is no dispute between the parties that the physical form of the approved dual occupancy reflected the desired future character of the area. The Commissioner in that matter also stated in paragraph 32 "that also one could look to the planning consequences of an un-sub-divided attached dual occupancy with one where each of the proposed new dwellings and the attached dual occupancy development are situated on a separate Torrens Title lot. In the first instance the ownership would be likely to remain in the hands of a single entity and in the second each dwelling in the dual occupancy might be owned by a single entity. In the first instance the likely the physical form of the two dwellings in the attached dual occupancy would remain as an integrated hole as proposed and plus appear more like a single dwelling in a street and fit in with the desired future character. In a second instance each individual owner might seek to individualise the dwelling so that each dwelling would appear different and the development complex not as an integrated whole. Plus there is a potential for a different planning outcomes in each case as a result of sub-division. Even if the attached dual occupancy with strata title the Builders Owners Corporation might exert some control over the aspirations of each of the potential individual lot owners and so keep the development as an integrated whole and one that would fit better within the streetscape. Significant improvements to each dwelling would need the body corporate approval. 18 The other judgment I was taken to is that of Commissioner Bly in Cracknell and Lonergan v Marrickville CC 2004 NSWLEC 161, June 2004. In this matter, Commissioner Bly considered a development application for multi unit development on an allotment of land 330 sq m with a proposal for Torrens Title for each dwelling unit. He states in paragraph 23

"finally in relation to the sub-division proposal I agree with the submission made on behalf of the respondent that this should not be approved taking into account the existing sub-division pattern and typical lot sizes in the locality. The proposed lot sizes range between 72 and 95 sq m where a typical lot size in the immediate locality is in the range of 225 to 351. The proposed lots would be out of character with the area, notwithstanding I have decided that the development of the site as a whole would not be out of character. I agree with the concerns that in the long term the separate re-development of these small lots could be problematical and it would be far better to retain the existing 330 sq m as a consolidated lot, having an area much the same as those lots surrounding." 19 I do note that there are distinguishing facts in both of these judgments to the case before me today. However, in the matter now before the Court I have also concluded that sub-division is not appropriate for the following reasons. I recognise that the applicant is prepared to tie the sub-division to the plan that has been approved by the council and the applicant submits that the presentation to the street is the same as the council approved development. However, the configuration of lots has much greater longevity than that of a development and this must be taken into consideration in an assessment of applications for sub-divisions providing separate title. While there are a number of lots that are relatively small those that are the size and configuration of the proposed 219 m2 are rare, even in the larger catchment. The existing smaller lots are generally long and narrow presenting as a different configuration to the proposed lots, that is the shape is very different to what is in the area generally. There is one similar lot that the Court was taken to, on the corner of George and Wardell Road, that is some 230 m2 however this sub-division dates back to about 1956 and the remaining parcel is about 500 m2.

20 The Court must give central consideration to the DCP guidelines. This includes an assessment of the general sub-division pattern, character and context of the site in the area, as well as "whether the subdivision would reinforce the dominant subdivision pattern in the street". While the LEP permits variety in lot sizes in the municipality this is on the basis that the allotment size and shape relates to the existing sub-division pattern of the locality. An assessment of the proposed Torrens Title subdivision is not in my assessment consistent with the planning regime that requires a more comprehensive assessment than saying the development will appear the same in the streetscape as the development already approved by the council. 21 Furthermore, while not determinative, if the Court was to approve the application for sub-division of the proposed dual occupancy development this could also create an undesirable precedent in that other applicants with integrated attached dual occupancy or multi unit developments may seek to invoke Torrens title sub-division for those developments, either pre or post development.

22 The Court considers that the subject development as approved by the council with strata title is an appropriate outcome for the site. And the Court also agrees with the Council that it would be inappropriate to allow separate allotments for this integrated development (by its very nature an integrated development means the whole is made up elements). Torrens title subdivision would mean not only that the development could no longer be said to be integrated but the subdivision itself would be out of character with the area in the long term.

23 Council's controls allow for attached dual occupancy developments on lots over 400 sq m and detached dual occupancies on lots that are 600 sq m. The ability to strata title the dwellings means that in many instances if not most instances there is separate ownership. At the same time strata title provides greater certainty in terms of future integrated re-development that respects the underlying subdivision pattern. It would be short sighted of the Court to only have regard to the approved integrated development or to regard the line down the middle as merely a line on a plan because the approved development would have the same appearance in the streetscape. This would be short sighted of the Court in terms of future re-development of the area. As I have said the underlying sub-division pattern must be respected as it also guides future re-development and for this reason the appeal before me must not be assessed just in terms of the approved development. 24 Although I accept the applicant may not be seeking to change the plans approved for the dwellings this is not the issue but rather the determinative issue is that two lots would be out of kilter and out of character with the general sub-division configuration, not just size, in the locality. I have considered the allotment size not just in terms of the 2(b) zone but within the broader area of the subject site. The Court must give "real genuine and proper consideration to the provisions of councils DCP" as required by the Court of Appeal decision of Zhang v Canterbury City Council [2001] NSWCA 167. For all the foregoing reasons the application must fail.

25 Therefore on the basis of the Court's assessment the formal orders of the Court are:

1. The appeal in respect of the property known as No. 122 Wardell Road, Marrickville is dismissed.

2. The development application for the sub-division of the land into two separate Torrens title allotments is refused consent.

3. The exhibits, except for exhibit A, are returned to the parties.

      J S Murrell
      Commissioner of the Court
      ljr

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.