In total, the applicant proposed the following alterations to the site:

The site was ultimately to be subdivided into three lots.

One lot would comprise the northern half of the site. A single storey dwelling house would be erected on this lot.

The other two lots would be on the southern half of the site. The existing dwelling house would be demolished and replaced with a duplex development.

The main controversy arose over the sequence in which these elements of the development were to be carried out, and exactly which elements were the subject of the hearing before the Assessor.

In his judgment, the Assessor characterised the proposed development as involving three elements, as follows:

Lot 1, the road frontage lot with an area of 423.2m2, and

2. The demolition of the existing residence and the construction of:

An attached two storey dual occupancy dwelling on Lot 1 with the dwelling having a gross floor space of 105.53m2 and private space of 82m2; with dwelling 2 having a gross floor space of 104.59m2 and private open space of 50.71m2.

The subdivision of Lot 1 is to provide separate titles to the dual occupancy, thereby ultimately creating three lots.

3. A single storey dwelling on lot 2 with a gross floor space of 139m2 and having 68.1m2 of private open space."

Ms Kelly, who appeared for the applicant at the hearing of this appeal, suggested that the use of the term "dual occupancy" in the context of the attached dwellings on lot 1 was potentially confusing, for reasons which will become apparent. For clarity, I will refer to this building as the duplex.

At the commencement of the discussion of the evidence in his judgment, the Assessor stated as follows:

"The primary hurdle in this development application is the approval of the two lot subdivision so that the proposed dual occupancy [the duplex] and single level residence can follow on the new lots. This was acknowledged by Mr Goldsmith in his submission who said that if there were deficiencies with the housing proposals this could be addressed in subsequent stages after the subdivision was approved."

The Assessor proceeded to consider the subdivision of the existing lot 1 into new lots 1 and 2, which he termed the "primary subdivision". There was much confusion in the way in which the lots were described. For consistency and clarity, I record, first, that the new lot 1, having an area of about 423.2m2, was to be the southern lot, fronting Wyralla Avenue, upon which the existing dwelling (ultimately to be demolished and replaced with a duplex) is located; and, secondly, the new lot 2, having an area of about 300m2, was to be the northern lot at the rear of the site, upon which a new dwelling was to be constructed. I shall refer to the subdivision of the site into those two lots as "the primary subdivision" and I shall refer to the new lots as, respectively, lot 1 and lot 2.

In reaching the conclusion that the primary subdivision should not be approved, the Assessor did not refer to either SEPP 25 or SREP 12. In particular, he found that the primary subdivision "would result in the creation of two lots substantially under the provisions in the relevant DCP".

The basis of the applicant's case is its claim that the Assessor misunderstood the nature of the proposed development the subject of the appeal. As a consequence of that misunderstanding, the applicant submits, the Assessor did not apply the correct statutory controls in assessing the development application.

The development for which the applicant sought approval involved three elements, but the sequence in which they were to be assessed was not as the Assessor described. The correct sequence for assessment of the proposed development was as follows:

- first, the primary subdivision, which involved the subdivision of the existing lot 1 into lots 1 and 2, and the construction of a new dwelling on lot 2;

- secondly, the demolition of the existing house on lot 1 and the construction of the duplex in its place; and

- thirdly, the subdivision of the duplex development on lot 1.

The primary subdivision was in fact a subdivision for the purpose of dual occupancy. The Assessor failed to recognise that the development for which the applicant sought approval was two dwellings (the single-storey dwelling, and either the duplex or the existing house) on one allotment of land (the site).

Therefore, in assessing the primary subdivision, the Assessor was required to apply the provisions of SEPP 25 and SREP 12.

The Assessor erred in law by not assessing the primary subdivision under the provisions of those instruments and merely assessing it under the Parramatta Local Environmental Plan 1993 (Dundas Ward) ("the LEP") and Development Control Plan (Dundas Ward) ("the DCP").

As I have earlier said, the applicant's claim was formulated on the basis that the Assessor erred by not applying the appropriate statutory instruments in assessing the development application. However, as the above summary shows, the applicant claims that this erroneous assessment came about as a consequence of another alleged error which the Assessor made, namely that the Assessor misunderstood the nature of the proposed development the subject of the appeal. I think it can be said that it is this alleged error which is the true basis of the applicant's claim, because the claim that the Assessor did not apply the correct statutory instruments depends for its success on establishing that the Assessor misunderstood the nature of the development application.

Appeals under s 56A of the Land and Environment Court Act 1979 are limited to questions of law. It seems to me that the basis for the applicant's claim in this case raises a question of fact and not a question to law, and cannot therefore be disturbed on an appeal. The Assessor was required in this case to determine the nature of the development application which was the subject of the merit appeal before him; then he was required to direct himself as to the law, and then he was required to apply the law to the facts found. The determination of the nature of the development application which he was required to assess in accordance with the law was, in my opinion, a finding of primary fact or inference which is a matter for the Assessor's decision; and the Court on appeal under s 56A cannot interfere with that finding, even if it were perverse, or patently in error (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-157).

That would be sufficient for this appeal to be dismissed, but I acknowledge that Ms Kelly put the applicant's case to me upon the basis that, following Azzopardi at 156, the Assessor erred in law because he failed to define in accordance with law the question of fact which he had to answer. However, even if the applicant's case is formulated in that manner, I cannot discern any error on the part of the Assessor.

First, I consider that the Assessor did not misunderstand the nature of the development application that was before him. He understood correctly that it involved three separate elements in the sequence which he identified, and that the first element was the primary subdivision, which was a subdivision simpliciter of the existing lot. Secondly, Ms Kelly's submission fails to take into account that the development application as a whole ultimately involved three dwellings on three lots, not merely two dwellings on one lot.

Ms Kelly agreed that Mr B T Goldsmith, an experienced town planner who represented the applicant at the hearing before the Assessor as well as giving expert evidence, had asked the Assessor to examine the primary subdivision as the initial stage of the development application. However, she submitted, the primary subdivision was not a subdivision simpliciter. It was, so she argued, a dual occupancy subdivision, because it sought approval for the subdivision of the site into lots 1 and 2, with an existing house on lot 1 (which was ultimately to be replaced with the duplex) and a proposed dwelling house on lot 2. This is in contrast with the position taken by the Assessor, who apparently saw the primary subdivision as being distinct from the applications for approval of the single-storey dwelling house and the duplex. The Assessor appears to have considered construction and subdivision of the duplex as the only "dual occupancy" part of the development proposal.

The evidence which Ms Kelly relied upon to support her submission was as follows:

In the introduction to Mr Goldsmith's expert report, he stated that "... [t]he determination of the subdivision part of the application is somewhat more urgent on the applicant's behalf, as the provisions of SEPP 25 no longer apply to applications made after the 8th of May 1995".

Development for the purpose of a dwelling house did not require development consent under cl 12 of the LEP, and consequently it was unnecessary to submit a development application for consent to erect a dwelling house on lot 2. Yet the development application contained material (drawings, elevations, site plans) relating to the erection of a dwelling house on lot 2. This indicates that that dwelling house was to be regarded as part of a dual occupancy, for which development consent was required.

At the hearing, when Mr Goldsmith was cross-examined by Mr Tomasetti, for the council, the following exchanges took place (T 13/10 pp 47, 48):

"Q. And your professional view to the Assessor in these proceedings is that that provision in the DCP has absolutely no relevance at all to this application?

A. It has no relevance in regard to an application where dual occupancy or other forms of housing are proposed.

Q. Yes but you don't - you just told me a moment ago Mr Goldsmith that one of the prime objectives is to walk away just with a two lot subdivision?

Q. With a single dwelling on Lot 2 and a single dwelling on Lot 1?

A. And what would that constitute a dual occupancy of the lot.

Q. I see. You say that the LEP properly construed doesn't contain minimum allotment sizes for dual occupancy?

A. If the application is made for the two lots in the form of dual occupancy the LEP and the DCP has no relevance in regard to that density requirement. It is set aside by the provisions of SEPP 25 and SREP 12.

Q. Well again I suggest you're confusing SEPP 25 and SREP 12. Are you saying that a single dwelling development on proposed Lot 2 and a single dwelling on Lot 1 would be dual occupancy development as defined in the LEP? Dual occupancy dwelling as defined in the LEP?

A. It would be a dual occupancy application if it was just to be for two lots, yes."

In response to Ms Kelly's submissions, Mr Tomasetti contended that the primary subdivision was not a subdivision for the purposes of a dual occupancy. He pointed to a wide range of materials, the most significant of which are as follows:

The development application which was tendered in evidence before the Assessor. This document indicated that the number of dwellings proposed was three, that the existing house was to be demolished, and that the proposed subdivision provided for three lots.

The introduction to Mr Goldsmith's statement of evidence which stated:

"It is proposed to subdivide the existing site into three allotments and to erect two dwellings (dual occupancy) on the street-front allotments and a single storey dwelling on the new rear allotment."

Mr Tomasetti submitted that this indicated that the subdivision was to precede the dual occupancy development (the duplex) and the construction of the single storey dwelling.

The passages respectively appearing on pages 8 and 9 of Mr Goldsmith's statement of evidence, where, in referring to the statutory controls relevant to the development application, he stated:

"It is proposed to erect and subdivide a dual occupancy development on the southern allotment in accordance with SEPP 25 and SREP 12."

"... the proposal relies upon the now superseded SREP 12 to erect 2 attached dual occupancy dwellings on the southern or street front allotment."

An extended discussion which took place between the Assessor and the representatives of the parties as to the manner in which the development application should be treated, containing as it did many separate elements. The following relevant exchanges took place, which I reproduce in the order in which they occurred [T 12/10 pp 27, 28; T 12/10 pp 29, 30]:

"ASSESSOR: The primary hurdle in this application is to get a two lot subdivision approved initially. Which plan do you wish to be considered for that?

ASSESSOR: Mr Tomasetti, can we proceed on that basis that it's plan AF is the subdivision plan?

TOMASETTI: Understood Mr Assessor. If that application fails, we still have to make a decision on the way in which the case proceeds it seems to me Mr Assessor. If this application fails, what does the applicant then propose?

GOLDSMITH: I've just been through that Mr Assessor. We would propose that the dual occupancy be dealt with by way of condition or otherwise, in other words to create two allotments or to leave the dual occupancy on the allotment of land that exists today ... If we are to elect, if we are required to do so by this court, then we would have the dual occupancy sitting on a single parcel of land and then make further application to council in relation to how that might be further subdivided either by Strata or by Torrens title at some point in the future ... On the basis that we are able to make that application later, the applicant would say forget the subdivision matters, we'll deal with the dual occupancy on that block of land.

TOMASETTI: I understand that the applicant is seeking subdivision consent to plan AF. If plan AF is granted approval to, the applicant will then proceed to seek approval to a dual occupancy development on the southernmost allotment and a subdivision of that allotment centrally down the line of that allotment in a north-south axis. If the initial subdivision consent is not granted, the applicant will seek consent to a dual occupancy building on the entire parcel otherwise unsubdivided and will make another application at a future date to the council for subdivision of that lot. In those circumstances, we will assess the environmental effect of the subdivision and we will assess the environmental effect in all its relevant respects of the dual occupancy building as the development will relate within the site and to its neighbours.

Mr Goldsmith did not take issue with the formulation put by Mr Tomasetti in this passage, which effectively concludes an exchange which extended over six pages of transcript.

An examination of the transcript and the judgment reveal the following:

Mr Goldsmith agreed to the development application being considered in stages. In particular, the primary subdivision was to be considered before the duplex.

I accept that there may be confusion with the use of the term "dual occupancy". In the evidence of Mr Goldsmith and in the oral evidence, the term was generally used to refer to the duplex and not to the primary subdivision. In particular, Mr Goldsmith's statement that, if the Court should reject the primary subdivision, then it should "forget the subdivision matters, we'll deal with the dual occupancy on that block of land" indicates that Mr Goldsmith was using the term to refer to the duplex, and not the primary subdivision.

The plan relied upon by Mr Goldsmith as demonstrating the primary subdivision was plan AF. This plan shows a division of the site into lot 1 and lot 2, with the existing dwelling on lot 1 and no structure on lot 2. Elsewhere in the transcript [T 13/10 p2 at line 5] Mr Goldsmith is recorded as describing this plan to the Court as being "Two lot subdivision plan which is before this Court, and that's talking about the threshold case, two lots".

The statements of Mr Goldsmith during cross-examination do not in any way indicate that the applicant was changing its proposal from that which was outlined during the exchange referred to by Mr Tomasetti, nor did the applicant alter its suggestion as to the order in which the Assessor should assess the various elements of the development application.

The submissions made by the parties' representatives before the Assessor were not transcribed. However, in his judgment the Assessor noted that in his submissions, Mr Goldsmith "said that if there were deficiencies with the housing proposals this could be addressed in subsequent stages after the subdivision was approved".

I conclude, from plan AF, the discussions reproduced above and the comment in the Assessor's judgment, that the primary subdivision was intended by the applicant to be assessed before assessment of the single-storey dwelling. In that respect, the first element to be considered was for a simple subdivision of the site into two lots, divorced from consideration of the duplex on lot 1 and the single-storey dwelling on lot 2.

Furthermore, it was clear that the development application as a whole sought approval for three dwellings upon three lots. Ms Kelly's contention that the primary subdivision involved two dwellings on one allotment (and was therefore a dual occupancy subdivision) focuses only on part of that which was sought by the applicant. Looked at overall, the development application did not seek approval for two dwellings upon the existing lot; it sought approval for three dwellings on three lots. It would not have been in accordance with the facts for the Assessor to regard the primary subdivision as involving a dual occupancy subdivision if, as he was required to do, he had regard to the whole of the development application before him.

I conclude, therefore, that the Assessor correctly understood that the primary subdivision involved the subdivision of the existing lot into lots 1 and 2, with the existing dwelling house located on lot 1.

I did not understand Ms Kelly to be putting the proposition that, if the correct nature of the development application involved, as a first step, the subdivision of the existing lot into lots 1 and 2, the provisions of SEPP 25 and SREP 12 applied to the primary subdivision. Clearly, as I will show, those provisions did not apply.

In 1995, SEPP 25 and SREP 12 were amended to repeal provisions which permitted subdivision of dual occupancy developments. A savings provision operated, however, to preserve development applications for dual occupancy made before 8 May 1995. Consequently, these instruments, if relevant at all to the development application in this case, applied in their pre-1995 form.

Clause 2(1) of SEPP 25 (in its pre-1995 form), defined "dual occupancy development" as being development that results in two dwellings, whether attached or detached, on a single allotment of land. Clause 11 stated that where dual occupancy development was permissible with or without the consent of the council, a person might with the consent of that council subdivide the dual occupancy development.

Here, however, as I have set out, the primary subdivision is not a subdivision of a dual occupancy development. It is, rather, the subdivision of an allotment which contains one dwelling. The subdivision as shown on plan AF does not divide the dwelling and does not result in two dwellings. Accordingly, it is not a subdivision of a type to which SEPP 25 related, and it did not have to be assessed under that instrument.

SREP 12 permits, with consent, the creation of two dwellings on one allotment. (The 1995 amendment expressly provides that SREP 12 does not allow subdivision of an allotment on which development has been carried out in accordance with its provisions). I repeat, however, that the primary subdivision does not result in the creation of two dwellings upon one allotment, and SREP 12 has no relevance to it.

Accordingly, in assessing the primary subdivision application, the Assessor was required to take into consideration the LEP and the DCP, but not SEPP 25 and SREP 12. This is in fact what he did. Therefore, the Assessor's judgment does not disclose an error of law.

In accordance with the foregoing my formal orders are as follows:

2. The decision of Assessor Hussey made on 27 November 1995 is confirmed.

3. The exhibits may be returned, with the exception of exhibits 7 and B.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 12 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.