Fuller v Inner West Council

The proposal

1. The development application seeks approval to subdivide the lot into two Torrens Title allotments together with some minor demolition of existing hard paved areas, the existing fireplace and the concrete tank.
2. The lots proposed to be created are: "Lot A Area : 279.16 square metres Width : 7.62m Depth : 36.635m Fronts South street Lot B Area : 203.55 square metres Width : 7.62m to 7.7m Depth : 26.150m Fronts Crawford Lane (In some of the documents before the Court Lot A is referred to as Lot 1 and Lot B is referred to as Lot 2, however the proposed subdivision plan describes the lots as lots A and B.)"
3. The proposed subdivision is shown in Figure 2.
4. The application anticipates the retention of the existing dwelling on Lot A, but does not seek approval for any alterations or additions to it, nor for a new dwelling on the additional lot proposed to be created (Lot B).
5. The Applicant has however provided concept plans which are intended to demonstrate that the two lots can support in an appropriate way the existing dwelling and a new dwelling. The concept plans include some alterations to the existing dwelling as well as a new dwelling. I repeat that development consent is not sought for that work. The plans are for explanatory purposes only. The only work for which development consent is sought is the minor demolition referred to in [10].
6. The proposal was notified in accordance with the DCP and a number of submissions objecting to the proposal were made, including an immediate neighbour to the south of the site.
7. On 31 May 2019, the Court granted leave to amend the application by moving the proposed boundary line a short distance to the east, enlarging proposed Lot A and reducing proposed Lot B by a small amount. The amendment made no material difference to the objections to the proposal by local residents, nor the principal issues.

Statutory Context

1. The site is zoned R2 Low Density Residential pursuant to Marrickville Local Environmental Plan 2011 (the LEP).
2. Development consent is required for subdivision by virtue of cl 2.6 of the LEP. Unusually, the LEP does not have a minimum lot size provision. The LEP does have a Floor Space Ratio (FSR) control in cl 4.4 which provides for decreasing maximum FSR as the areas of lots increase - from 1.11:1 for lots of equal to or less than 150 square metres in area to 0.5:1 for lots in excess of 400 square metres in area.
3. The Applicant drew the Court's attention to cl 2.6 of the LEP to make the point that there exist very small allotments in the local government area. On the other hand, the Respondent pointed to the fact that the site at present has an FSR control of 0.5:1, whereas after subdivision Lot A will have a maximum FSR of 0.8:1 and Lot B will have a maximum of 0.9:1, meaning that the subdivision is likely to lead to an increase in floor area developed on the total site. Whilst both observations were undoubtedly correct, arguments based on those observations were not ultimately developed.
4. There is the usual provision requiring the consent authority to have regard to the objectives of the zone (cl 2.3) but Council does not assert that the proposed subdivision in inconsistent with any of the objectives of the R2 zone.
5. As the parties correctly pointed out, the deliberate absence of a minimum lot size control in the LEP means that the Council has left it to the provisions of the DCP to manage and control subdivision. Like in the LEP, there is no minimum lot size in the DCP, but rather there are objectives and controls which are designed to ensure that proposed subdivisions are appropriate in their particular context.
6. It is well settled that a development control plan is a focal point for consideration (Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 ("Zhang")) and the decision maker must not depart from the policy evident in the development control plan (Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226).
7. A development control plan is not an environmental planning instrument, is drafted by planners not lawyers, and so must be approached having regard to its terms but with a degree of flexibility (see s 4.15(3A) of the EPA Act and Zhang).
8. Part 1 of the DCP deals with "Statutory Information" including the structure and application of the DCP. At clause 1.1.11, the DCP provides that before granting consent "Council [now the Court] must consider: • All applicable requirements of MLEP 2011; • The objectives of this DCP; • Compliance with the generic provisions (objectives and controls) contained in Part 2 of this DCP; • Compliance with the relevant objectives and controls in Parts 3 to 8 of this DCP; and • Compliance with any precinct or site specific controls in Part 9 of this DCP."
9. Clause 1.1.11 also provides that compliance with a development control does not necessarily mean that a development is appropriate in its particular circumstances. And further, that a development may be appropriate notwithstanding non-compliance with a control: "The controls in this DCP may not normally be varied. However, if an applicant is able to clearly demonstrate that a particular control is unreasonable or unnecessary in the circumstances and that the objective of the control is satisfied, Council may consider waiving or varying the control."
10. Clause 1.1.13 sets out a procedure for an applicant who seeks to vary a control, and states: "This DCP relies upon the satisfaction of objectives and compliance with development controls and best practice guidelines to shape development outcomes. It aims to allow flexibility in the application of such development controls where strict application of the controls is unreasonable or unnecessary."
11. In this case, the Applicant seeks to vary two controls (private open space and car parking) in respect to the existing dwelling after the proposed subdivision. The Applicant does not seek to vary any control in relation to the subdivision itself, but rather asserts consistency with the DCP.
12. The provisions relating to subdivision are in Part 3 of the DCP, and most relevantly clause 3.3.2. Conventionally it provides an Introduction, Objectives and Controls. The purpose of the introduction is to explain somewhat, and to put in a broader context, what follows, and includes: "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 actually 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."
13. The Objectives reflect that broader intention and are: "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."
14. There are four controls, the first of which - C5 - is at the heart of the principal issue in this case: "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."
15. Some observations should be made.
16. First, the parties agree that the phrases in the Objectives and Controls: prevailing cadastral character (O3), predominant subdivision pattern (O5) and prevailing cadastral pattern (C5) are synonymous. I agree that whilst in some circumstances there may be a nuanced difference in meaning, in the present case, they are to be taken to have the same meaning.
17. Second, the actual control is in the first part of C5 - the proposed subdivision must have characteristics similar to the prevailing cadastral pattern of the lots fronting the same street. The characteristics which give rise to the pattern are area, dimensions, shape and orientation.
18. Third, the second part of C5 directs the decision maker to the area from which the determination of the prevailing cadastral pattern is made - up to ten lots on both sides of the subject site and 20 or so lots on the other side of the street. Sensibly, the drafter has used words of flexibility - "generally", "up to" and "if applicable" - recognizing that a particular formula does not work in every situation. In this case, there is no disagreement as to the area of enquiry.
19. Fourth, the synonymous phrases, cadastral character, subdivision pattern and cadastral pattern, together with the identified characteristics of area, dimensions, shape and orientation appear to direct attention to the layout of lots created by the subdivisions as if read on a plan. The existing layouts of lots create a pattern against which the proposal is to be assessed. That is, this exercise appears to one directed to ensuring that the lot itself is reflective of the predominant pattern without consideration of built form, existing or proposed. A pattern is not necessarily easily perceived on the ground because whilst frontages can be observed, the depth of lots and their areas cannot always also be observed, because of the intervention of built form. Nevertheless, the control directs attention to the subdivision layout, existing and proposed.
20. The remaining relevant controls are intended to ensure that any lot created is appropriate for the use for which it is intended: "C6 Proposed lots must be of a size and have dimensions to enable the siting and constructional a dwelling and ancillary buildings that : …. v Provide useable 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 … C8 Where a proposal for subdivision or 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."
21. The Applicant provided a conceptual building plan but there remains debate about the potential consequences of the subdivision if approved, having regard to other relevant provisions of the DCP relating to car parking and private open space.
22. The DCP provides in clause 2.10.5 and Table 1 that car parking in this location should be provided at the rate of one car space per dwelling when on separate lots. Here, obviously a total of two would be required, whereas only one is proposed. If there was a single dwelling and a secondary dwelling, then only one space would be required in total for both dwellings.
23. The provisions relating to carparking are complex and comprehensive and seek to deal with every possible form of development which could occur in the local government area. The objectives of the controls are equally broad but relevantly include: "O1 To balance the need to meet car parking demand on-site to avoid excessive spillover onto streets, with the need to constrain parking to maintain the Marrickville LGA's compact urban form and promote sustainable transport. … O4 To ensure parking provision and design is compatible with the particular development proposed. O5 To allow for appropriate variation of provision rates and design parameters for developments with particular characteristics, such as affordable housing or re-use of older buildings"
24. Clause 2.10.4 recognises that there may be justification for the provision of car parking at rates lower than that prescribed in the control and gives examples of such justification including: "2. Existing site and building constraints make provision of car parking impractical; 3. Located adjacent to high-frequency public transport services and/or urban services; … 9. Parking for the development is consistent with the aims and objectives of this section of MDCP 2011."
25. Clause 2.18.11 deals with the requirement for the provision of private open space for dwelling houses, attached dwellings and semi-attached dwellings: "C12 Private open space i The greater of 45 square metres or 20% of the total site area with no dimension being less than 3 metres, must be private open space. ii A minimum of 50% of private open space must be pervious."
26. The phrase "private open space" is not defined in the DCP and so has its ordinary meaning as an outdoor space for active and passive recreation for the occupiers of the dwelling. The nature and quality of the private open space can be gleaned from the objectives of the Landscaping and Open Space provisions in clause 2.18.1 which include: "O3 To provide dwellings with outdoor recreation space. …. O7 To provide private open space areas which act as an extension of the living area of a dwelling and, where practicable, receive adequate sunlight."
27. In the strategic context, the site is within the Ness Park planning precinct in Part 9 of the DCP. The existing character is said in clause 9.21.1 to include the subdivision character of a mix of small and medium sized allotments. Whilst it was appropriate for the Council to draw the Court's attention to the provisions of Part 9 of the DCP, in the end no submission was made and nothing turned on it.

The issues

1. Shortly stated, the issues raised by the Council are: 1. Whether the proposed subdivision is consistent with the predominant subdivision pattern of the street; 2. Whether the subdivision should be approved in circumstances where, as a consequence, the existing dwelling on proposed Lot A would not comply with the provision of car parking and private open space.

Objectors

1. The same or similar issues were raised by a number of objectors to the proposal who had made written submissions and which I have read and considered.
2. Mr Frank Harlow of 19 South Street (next door to the south) gave oral evidence on site on behalf of himself and his wife, Mr Gerry Choate of 16 Harney Street and Felin and Edel Brady of 27 South Street. Mr Harlow had made two very comprehensive and helpful submissions to the Council, which are in evidence, and in his oral evidence summarized their position as supporting development such as a secondary dwelling over a garage on Crawford Place, but described the proposal as an overdevelopment due to land size and the provision of carparking being inadequate.
3. Mr Harlow and those on whose behalf he spoke remained opposed to the development.

Evidence and submissions

1. The planning evidence was given by Mr B Threlfo for the Applicant and Ms K Zieme for the Council.
2. Traffic evidence was given by Mr M Logan for the Applicant and Mr M Mariner for the Council.
3. In each of the disciplines, comprehensive joint reports were provided clearly setting out the positions of the experts.
4. In summarising the evidence and submissions I do not intend to do a disservice to the experts, all of whom assisted the Court in accordance with their respective obligations, nor to the carefully considered submissions by the advocates for the parties.

Consistency with prevailing cadastral pattern

1. Mr Threlfo carried out a comprehensive analysis of the relevant lots on South Street on both sides of the street and divided the lots into three categories: "Type 1 Narrow (width 6.1m-7.6m) and short, areas 252 square metres to 342 square metres. Type 2 About 7.6m wide, long with areas of 443 square metres to 487 square metres Type 3 About 12.19m wide with areas of 456 square metres to 494 square metres."
2. He said there are seventeen Type 1, six Type 2 and nine Type 3. He then grouped Types 2 and 3 as fifteen large lots and Type 1 described as seventeen small lots. In cross-examination, Mr Threlfo agreed that three lots exceeded the area of Type 3 as defined, and that therefore there were only six Type 3, not nine. Nevertheless, those three lots would fall into the large lot category for the purpose of his analysis and his conclusion remained unchanged.
3. That conclusion was that none of the types are the prevailing pattern in South Street but that Lot A fronting South Street has similar characteristics to Type 1 and therefore Lot A is acceptable.
4. Mr Threlfo in the joint report opined that because Lot B does not have a frontage to South Street, the control in the DCP does not require an assessment to be made as to whether that lot has characteristics similar to the lots in South Street. He said there is no prevailing cadastral pattern in Crawford Place and assessed Lot B against control C6, rather than C5, stating that having regard to the uses and built form in Crawford Place, Lot B and the concept dwelling house are not out of character.
5. Mr Threlfo and Ms Zieme were asked by the Court to assume that the DCP called up consideration of both South Street and Crawford Place as the "same street" as the proposed subdivision. Mr Threlfo was of the view that Crawford Place had no prevailing subdivision pattern and his conclusion remained unchanged. He considered the built form outcome as relevant to consideration of the subdivision pattern.
6. Ms Zieme accepted that Lot A "on its own" is not inconsistent with the prevailing subdivision pattern. Lot B however was not consistent. In her opinion, the prevailing pattern against which the application is to be measured is the pattern of lots from 15 South Street to 37 South Street. Those lots run from South Street to Crawford Place with widths of 7.62m, depths from 47.4m to 67m and areas from 257 square metres to in excess of 500 square metres. Ms Zieme says that with any area of only 203.55 square metres Lot B is not consistent with the characteristics of the prevailing cadastral pattern.
7. When asked to consider Crawford Place Ms Zieme also considered that Lot B was inconsistent with the lots in Crawford Place being both significantly smaller in area and narrower by at least about 2 metres.
8. Ms Zieme agreed in cross-examination that there were varying sizes of allotments in the area but did not agree that the pattern was eclectic.
9. The Applicant submitted that both the LEP and DCP anticipated small lot sizes. The pattern is eclectic and Lot A is consistent with such pattern as there is in South Street, in accordance with what was said to be the concession by Ms Zieme. As to Lot B, the Applicant accepted that the assessment of Lot B must include analysis of South Street as well as Crawford Place, but that greater weight should be given to Crawford Place and there was no pattern at all in Crawford Place. It was submitted that built form is part of the context and should be considered in determining whether or not the proposed subdivision is consistent with the prevailing pattern.
10. The Council submitted that the prevailing pattern is that demonstrated from 15 to 37 South Street, that both proposed lots are to take their cues from South Street and that built form is irrelevant to the assessment. Accordingly, the proposed subdivision is not consistent with that prevailing pattern. The Council also submitted that the proposal does not retain or reinforce the pattern in accordance with the objectives of the control.
11. The Council in support of its submission provided the Court with a recent decision of the Court - Maloney v Inner West Council [2018] NSWLEC 1269 ("Maloney") in which a two lot subdivision with some similarities to the present was refused by the Court. It is invariably difficult to consider a decision concerning a different factual situation in the assessment of a development application. Obviously the facts are different, location is different, the evidence, opinions and submissions presented to the Court will be different.
12. Similar cases can assist in providing an example of a type of decision or guidance as to an approach to assessment, a principle, or a construction of a planning instrument or development control plan.
13. In Maloney, the Court refused the subdivision application after a detailed analysis of the peculiar characteristics of the subdivision pattern in the vicinity of the site. The approach taken by the Commissioner may be slightly different to my approach here, but it is not necessary to analyse any such difference because of the different factual situations and any difference in approach does not alter the outcome in this case in any event.
14. In the consideration which follows, I generally agree with the analysis and opinion of Ms Zieme.

Consideration - Consistency with prevailing cadastral pattern

1. The first step is to determine the characteristics of prevailing cadastral pattern of the lots fronting the same street in terms of area, dimensions, shape and orientation. Whilst the area of enquiry is agreed, it is necessary to determine what is the same street for the purposes of the exercise.
2. That is, does street mean the street or streets on or between which a lot exists prior to subdivision, or does it mean the street which to which each lot has a frontage after the proposed subdivision? Put another way, in the circumstances of this case, is Lot A assessed only against South Street and Lot B only against Crawford Place? Or are both streets assessed in relation to both lots?
3. In my opinion, the better approach is that the prevailing cadastral pattern is determined by considering the lots fronting the street prior to subdivision, not after. That is, here one considers the lots in the vicinity of the subject lot fronting both South Street and Crawford Place to determine the characteristics of the prevailing cadastral pattern. This is for the following reasons: 1. the language of control C5 does not state that the analysis is bifurcated but is more consistent with one analysis; 2. in the second part of the control, the pattern is said to be determined by examination of lots "on either side of the subject site" and "opposite the subject site" as distinct from being on either side of the lots to be created; 3. where the question is one of determination of an appropriate cadastral outcome, it is logical to determine the pattern of subdivision in the vicinity of the whole of the subject site rather than in parts.
4. The question also arises as to whether built form is relevant to the determination of the prevailing cadastral pattern. Whilst the potential built form on a lot to be created is assessed as part of the acceptability or otherwise of a subdivision (control C6 for example), I cannot see that it is relevant for the determination of the subdivision pattern. A subdivision pattern is just that - the pattern of the lines on a plan. It is not where, and in what form, the buildings on the lots are. Control C5 identifies the characteristics which together create the cadastral pattern - the area, dimensions, shape and orientation of the lots. The DCP does not identify built form as an element in that determination.
5. I will deal with each of the characteristics within the area of enquiry, although in reverse order.
6. The orientation of the lots is overwhelmingly east-west. The only exceptions are 6, 8 and 10 Crawford place and 17 Pine Street. The orientation which prevails is east-west.
7. The shape of most of the lots is rectangular. Whilst some have one splayed end (2 and 4 Crawford Place and 2- 14 Harney Street) they are what I would describe as largely rectangular in shape. The exceptions are 6 Crawford Place and 17 Pine Street, both of which are more peculiarly shaped.
8. The shape which prevails is rectangular.
9. The dimensions and area of a lot are clearly related - the area is a function of the dimensions. Nevertheless, each should be considered separately.
10. The frontages of numbers 1 to 27 South Street (on its western side) have a generally consistent width in the order of 7m to 8m. Going further south along South Street the widths are: "29 15.25m 31 10m 31 (sic) 5m 33 12.19m 35 7.62m 37 7.62m"
11. The east side of South Street is more varied: "4 6.65m 6 6.78m 8 6.78m 10 12.19m 12 12.16m 14 12.19m 16 12.19m 18 12.19m 20 6.1m 22 6.1m 24 12.19m 26 12.19m 30 6.15m 32 21.19m"
12. There is no evidence about the widths of the remaining lots under consideration in Crawford Place, but observations can be made from the cadastral plan which includes the areas of the lots.
13. The only two relevant lots which do not also front South Street are 2 and 4 Crawford Place which are plainly much wider than 7.62m, probably in the order of 12m. Number 15 South Street and numbers 19 to 37 South Street also have a frontage to Crawford Lane and therefore have approximately the widths at Crawford Place set out in [75]. I say approximately because there is a slight angle of the eastern boundary of those lots along Crawford Place so that the length of the eastern boundary is slightly different, but not materially so.
14. The lots on Crawford Place which also front Harney Street for the most part are wider lots but for numbers 4, 6 and 16 Harney Street which appear to be in the order of 6m to 7m.
15. In terms of the width of lots, there is a preponderance of narrow lots, mostly in the vicinity of 6m to 8m. There is a concentration of narrow lots adjacent to the site on the western side of South Street.
16. Applying the flexibility in control C6, it is logical that the more distant a lot is from the site, the less likely it is to contribute to the pattern of subdivision within which the site falls. The more immediate context is usually more telling. And therefore, I give less weight to the lots on the eastern side of South Street and more weight to those in the immediate vicinity of the site. Similarly, the larger lots fronting Harney Street are not characteristic of the prevailing pattern.
17. In my opinion, the characteristic of the dimension of width is that of narrow lots of the approximate dimension of 6m to 8m because of the large number of such allotments in the area under review and the significant number of narrow lots in the immediate vicinity of the lot.
18. There is no specific evidence of the depths of each of the lots, but having determined the characteristic of width, the area becomes a function of the depth of the allotments and so it is not necessary to separately consider depth as a dimension. Depth is inferentially dealt with when dealing with area. I should note however that Ms Zieme identified the depths of the lots with frontages to both South Street and Crawford Place as having depths of between 47.4m and 67m.
19. Mr Threlfo gave evidence of the areas of most of the lots which is summarized at [52] and [53] above. Whilst that is a useful analysis, it is now necessary only to consider the lots I have already identified as having the prevailing characteristics of orientation, shape and width. Those lots are as follows: "1 - 13 South Street (7 lots) 274 - 309 square metres 15 - 27 South Street (7 lots) 414 - 497 square metres 31 South Street 251 square metres 35 -37 South Street (2 lots) 257 - 287 square metres 4 - 8 South Street (3 lots) 261 - 274 square metres 4 Harney Street 196 square metres 6 Harney Street 229 square metres 16 Harney Street 447 square metres"
20. I will discount 4 Harney Street because it is significantly smaller in area than any of the other lots and is somewhat distant from the site on the other side of Crawford Place. Similarly, I give less weight to 6 Harney Street because it is well below the area of the overwhelming majority of lots, and is also on the other side of the street. I would also give less weight to 4 - 8 South Street because they too are more distant from the site and there are larger lots on either side of those two lots, including those larger lots directly opposite the site. Numbers 4 - 8 South Street therefore contribute less to the prevailing subdivision pattern of the site.
21. There is a general consistency of areas of the remaining lots of around 250 square metres as a minimum and up to around 500 square metres as a maximum, but mostly in the 250 - 450 square metre range. The overwhelming majority of those lots are in the immediate vicinity of the site and on the same side of the street as the site.
22. I conclude then that the characteristic of area which prevails is in the order of 250 to 450 square metres.
23. The prevailing cadastral pattern is lots of an area in the order of 250 to 450 square metres, having a width of 6m to 8m, generally rectangular in shape and oriented east-west. That pattern is established principally by numbers 1- 15 and 19 - 27 South Street.
24. It is against those characteristics that the proposed subdivision is then tested by asking the question - do the proposed lots have similar characteristics and therefore are consistent with the prevailing pattern of subdivision.
25. Lot A has each of those characteristics. It has an area of 279.16 square metres, has a width of 7.62 metres, is generally rectangular and is oriented east-west.
26. Lot B has a width of 7.62 metres, is generally rectangular and is oriented east-west. However, it has an area of only 203.55 square metres. In my opinion, that is not similar to a range of areas of 250 - 450 square metres. It is an area in the order of 20% less than the lower end of the range of areas of the prevailing cadastral pattern.
27. Its depth is also out of character, being much shorter than what prevails.
28. It is apparent from that analysis that the proposed subdivision does not reflect or reinforce the existing subdivision pattern because Lot B is significantly smaller in area and shorter in depth than those characteristics of the prevailing subdivision pattern.
29. I should add that, contrary to the above assessment, if the determination of the prevailing cadastral pattern in relation to Lot B is limited to Crawford Place alone as the relevant street, then the prevailing pattern would be essentially the same because 19 - 27 South Street are also on Crawford Place and the characteristics of those lots create the prevailing cadastral pattern largely for the same reasons as above - the most proximate and consistent lots on Crawford Place are 19 - 27 South Street. Whilst there is somewhat of a pattern on the eastern side of Crawford Place, the lots are more variable and indeed in any event much larger than what is proposed.
30. The Applicant argued that the built form outcome after subdivision may not be materially different from a garage with studio or a secondary dwelling on Lot B facing Crawford Place. That may be correct, however, it is not to the point. The question is one of subdivision alone and the existing cadastral pattern - how the lots have been created in the past is to be reflected and reinforced by any new subdivision (Objective O5). It is the characteristics of the pattern of subdivision which are the foundation of the assessment, not the built form outcome (Control C5).
31. Properly, it was not submitted that if there was a finding that the proposed subdivision is not similar to that which prevails, the Court could otherwise approve the subdivision, because of the flexibility of the DCP and the provisions relating to variation of controls. It would be difficult to see how a subdivision which does not meet the "similar" test would otherwise meet the objectives of the control.
32. It follows that the appeal must be dismissed and development consent refused. Whilst it is strictly unnecessary to deal with the remaining issues, in deference to the contributions from the parties, I will make some short observations.

The non-compliance of Lot A with the provision of car parking and private open space

1. Undoubtedly because of the understandable desire to retain the existing dwelling, the subdivision would result in an overall shortfall in parking space of one space (Lot A will not have a space) and a shortfall in private open space of Lot A.
2. The Council through Ms Zieme says that whilst there may ordinarily be some flexibility in the application of the controls in the DCP, when there is a subdivision creating a new lot there should be strict numerical compliance with the DCP.
3. Mr Threlfo says that the same level of flexibility should be applied in the terms of the DCP, whether considering the potential outcome of development following a subdivision or otherwise.
4. Control C8 requires a demonstration that "the relevant DCP controls can be complied with". I take that to mean that the provisions of the DCP relating to the variation of controls should also be taken into account, a proposition with which the Council in its opening agreed. Control C8 is the implementation of Objective 4 which is to ensure the "size of new allotments … permits adequate solar access, areas for open space, landscaping and car parking."
5. The question of the capacity of a proposed lot to provide adequate area for a dwelling and ancillary uses only arises if the proposed subdivision is consistent with the prevailing subdivision pattern. It is, in effect, the second gateway. So my assessment of this second issue is predicated on the assumption that there is consistency of the proposed subdivision with the prevailing pattern. That does not of course mean that a dwelling necessarily can be accommodated because other lots of similar size can do so. It is the current controls which must be considered, not the controls, if any, in place when older dwellings were constructed.
6. In my opinion, the DCP should be applied in all its terms in the consideration of a concept plan in support of a proposed subdivision. That means not requiring absolute compliance with numerical controls, but applying the terms of the whole of the DCP including its inherent flexibility.
7. The DCP provides that one car space should be provided for each dwelling. Proposed Lot B will have access from Crawford Place and enable a parking space, whether by a garage or otherwise. Lot A fronting South Street will not have a car parking space. The lot is too narrow for parking beside the dwelling and parking in the front setback is discouraged and unlikely to be approved should such an application be made. Therefore, there is a shortfall of one space.
8. In the joint report of the traffic consultants, Mr Logan and Mr Mariner, they agreed that there was sufficient capacity in South Street to accommodate an additional vehicle. That conclusion was based on surveys conducted on behalf of Mr Logan and about which Mr Mariner was satisfied as to the content and the reliability of the conclusion. At the relevant night time peak, the occupancy rate of the street was 74.5% leaving 14 spaces available. Mr Mariner concluded that there is enough parking in South Street in the vicinity of the site to absorb the demand from an additional dwelling if Lot A has no car parking space.
9. Given that there is such capacity in South Street, I would regard the application of the standard of one car space per dwelling as unreasonable or unnecessary. (I also note the proximity of the site to the bus services on Marrickville Road, although this was not specifically relied upon by the Applicant.)
10. In relation to private open space (POS), there are two issues - the correct calculation of the POS, and whether the non-compliance is acceptable.
11. The relevant calculations are: "Mr Threlfo 53.57 square metres Ms Zieme 45 square metres DCP 55.83 square metres (20% of site area)"
12. The existing dwelling is elevated above the rear yard. A deck at or about the level of the dwelling is proposed. There are two sets of stairs - one from the laundry within the dwelling and one from the proposed deck. In calculating POS, Mr Threlfo has not counted the area below the stairs from the laundry (or the stairs) but has counted the area of the stairs from the deck. Ms Zieme has not counted the area of either set of stairs. The first question is therefore whether the stairs from the deck should be excluded.
13. There is no particular assistance from the DCP beyond the scant references at [42] above. It seems to me that access from a deck to the rear yard is access from one part of the POS to another part of the POS and should not be excluded. Also, it is not unknown for stairs of a deck in a rear yard to be a place for sitting and enjoying the general ambience of POS. For both those reasons, I would agree with Mr Threlfo that the stairs from the deck to the rear yard are included in POS.
14. That means there is a shortfall of a touch over two square metres. In my view, that is a minimal variation and would not warrant refusal of the subdivision application. It is above the minimum for slightly smaller lots of 45 square metres and is a sufficient area for recreation in a location such as this. Ms Zieme agreed that if this was an application for alterations and additions then she would not object to such a modest shortfall, but for the purposes of a subdivision requires absolute compliance with the numerical control. For the reasons already stated, I do not agree with that approach.

Conditions

1. Although not necessary to determine, there were two debates about conditions on which I should comment. First, the Council sought to impose a condition requiring a covenant in terms of advising potential purchasers of a minimum floor level for a future dwelling because of potential flooding. There was no evidence to support the specific level in the proposed condition and had I approved the subdivision I would not have imposed the condition. I note that the floor level of any future dwelling would be the subject of a development application in any event and could be dealt with then.
2. There is a Complying Development Certificate (CDC) which has approved certain works to the existing building which is in part not consistent with the concept plan. I was concerned that if the subdivision was approved, the CDC could be implemented and the assumption about the future development upon which an approval for subdivision was based could be put at nought. The Applicant agreed to provide a condition which would have overcome that concern.

Conclusion

1. The proposed subdivision is not consistent with the prevailing cadastral pattern and so the application must fail. Had the subdivision been consistent, then I would not have refused the application on the grounds of the shortfalls in parking spaces and private open space.

Orders

1. The Court orders: 1. The appeal is dismissed. 2. Development Application No. 201800138 for the subdivision of Lot 1 DP 970333 known as 17 South Street, Marrickville is refused. 3. The exhibits other than Exhibit A are returned.

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: 23 October 2019