R & D Beattie Properties Pty Ltd v Inner West Council [2026] NSWLEC 1166

Cases Cited: Abraham v Inner West Council [2019] NSWLEC 1370
Connolly v Waverley Council [2024] NSWLEC 1580
Investa Nominees (2) Pty Ltd v City of Sydney Council [2024] NSWLEC 1048
Kharzoo v Inner West Council [2017] NSWLEC 1717
Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174
Threlfo v Inner West Council [2022] NSWLEC 1659
Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115

Texts Cited: Leichhardt Development Control Plan 2013
Woollahra Development Control Plan 2015

Category: Principal judgment

Parties: R & D Beattie Properties Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
S Turner (Solicitor) (Respondent)
Solicitors:
Pikes & Verekers Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s): 2025/261590

Publication restriction: Nil

Judgment

1. COMMISSIONER: Pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) the Applicant appeals Inner West Council’s (Council) refusal of Development Application DA/2025/0235 (DA) for the subdivision of the existing two Torrens title lots into three Torrens title lots on Lots 24 and 25 in Deposited Plan 2821 known as 77 Beattie Street Balmain NSW (Site). The Applicant also seeks consent in the DA for a change of use from the approved multi-housing development to three attached dwellings as a result of the Torrens title subdivision.

2. The Applicant being the owner of the Site was authorised to lodge the DA with the Council pursuant to s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW), and s 4.12 of the EPA Act

3. Pursuant to s 1.5 of EPA Act ‘development’ includes the subdivision of land.

4. Pursuant to cl 2.6(1) of Inner West Local Environmental Plan 2022 (IWLEP 2022) Council has power to grant development consent for the subdivision of land.

5. In accordance with s 4.5(d) of the EPA Act, the Council is the designated authority to process the DA.

6. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

7. The Applicant formerly received consent to Development Application No D/2018/243 (Original DA) for Site consolidation, alterations and additions to the existing warehouse buildings, and change of use to a multi-dwelling housing development containing three dwellings and two car spaces on the Site. The Original DA was granted by the Land and Environment Court of NSW in proceedings Abraham v Inner West Council [2019] NSWLEC 1370 by Commissioner O’Neill (Abraham) giving judgment arising from the parties entering into an agreement pursuant to s 34(3) of the LEC Act.

8. The Site is located on the northern side of Beattie Street, approximately 37 m to the east of the intersection with Montague Street. The Site is regular in shape with a total area of 280.6 m2 with a frontage of 9.145 m to Beattie Street, and rear lane frontage of 9.145 m to Little Llewellyn Street.

Figure 1: Aerial photograph of the Site and surrounding development, with the Site outlined in Red (Metromaps, 2025) (Council’s Statement of Facts and Contentions Ex 1, p 2 [5] (SOFAC))

9. The Site and adjoining properties are zoned R1 General Residential (R1 Zone) under the Inner West Local Environmental Plan 2022 (IWLEP 2022). There are four objectives of the R1 Zone as follows:

Objectives of zone

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide residential development that maintains the character of built and natural features in the surrounding area.

10. The Site is located within The Valley Heritage Conservation Area (HCA) and within the vicinity of the following heritage items under IWLEP 2022:

11. Balmain Co-op Society Limited, including interiors, at 28-30A Montague Street, Balmain (Listing No 1590);

12. Commercial Building at 88 Beattie Street Balmain (Listing No 1446); and

13. Dick’s Hotel, including interiors, at 89 Beattie Street Balmain (Listing No 1786).

14. The Site sits within the finely grained development in the HCA, with single and multi-level housing developments, as well as industrial buildings being converted to housing (including the Site). The locally listed Balmain Co-op Society Building at 28-30A Montague Street is a three story building adjoining the Site on the other side of Little Llewellyn Street.

15. The Site falls approximately 5.44 m from its Little Llewellyn Street boundary to its Beattie Street boundary.

16. Council raised six contentions in its SOFAC. However, Mr Turner confirmed in his Outline that Council’s main issues in these proceedings are:

17. The DA results in a three lot subdivision which is unacceptable as each lot is undersized; and

18. The DA does not result in a development consistent with the prevailing pattern of development.

19. The DA is a stand-alone form of development defined by s 1.5 of the EPA Act which defines development as:

“(1) for the purposes of this Act, development is any of the following –

(a) the use of land,

(b) the subdivision of land,

…...”

15. Development consent is required for the DA pursuant to cl 2.6 of IWLEP 2022:

**“**2.6 Subdivision—consent requirements

(1) Land to which this Plan applies may be subdivided, but only with development consent.”

Evidence

16. Mr S Barwick is the town planner for the Applicant, and Mr E Miletic is the town planner for the Council. Mr Barwick and Mr Miletic are the authors of the Joint Town Planning Report filed 26 November 2026 (JER Town Planning Ex 3).

17. Council’s Contention 1: Appropriateness of the subdivision type raised the issue that this application is inconsistent with the intent of the Original DA and is inconsistent with the pattern of development. Council’s preference is for the previously lodged, but unprocessed application for a strata subdivision and therefore particulars (c) and (d) are relevant:

“A strata division instead of a Torrens title subdivision would:

(i) result in nil variances to the applicable development standards and would remain consistent with the pattern of development, and

(ii) allow for the appropriate ongoing management of the whole development, removing the need to include onerous easements including easements for support, encroaching structures, light and air, and waterproofing that are difficult to maintain. (Ex C, p 4 [2.1 (c)])

“The proposed Torrens title subdivision is contrary to the characteristics of the Site, pattern of development and desired future character because it allows each lot to be subsequently modified independent of one another….” (Ex C, p 4 [21. (d)])

18. Mr Miletic’s evidence in relation to Contention 1 is summarised as follows:

19. His primary concern with the Torrens title subdivision is that the earlier proposed strata subdivision, due to the body corporate owners’ consent requirements, would make external changes to the dwellings more difficult, with the benefit being that the external appearance would more likely remain more uniform. (Ex 3, p 4 [1])

20. The approved multi-dwelling housing development is consistent with the existing pattern of development in the context of the large former warehouse buildings in the vicinity. (Ex 3, p 6 [17])

21. However, the introduction of new Torrens title lot boundaries for three ‘attached dwellings’ as proposed with individual site curtilages between the rear boundary of Lot 1 (Terrace 1) and the southern boundary of Lots 2 and 3 established a new relationship with the physical built form that is inconsistent with the existing pattern of development. Whilst the physical appearance of the built form remains unchanged… a Torrens title subdivision has the effect of creating three individual site curtilages with the opportunity for individual development to occur in piecemeal on each lot over time. (Ex 3, pp 6 and 7 [18])

22. A Torrens title subdivision is also not appropriate because of the complexity of the shared structural components forming a T-shaped spine between the proposed lots and spatial relationships between the dwellings under construction within the site that are likely to be impractical to maintain by individual owners via onerous easements for support, encroaching structures, light and air, and waterproofing and give rise to civil disputes. (Ex 3, p 7 [20])

23. The southern-most wall of Terraces 2 and 3 is located above the rear wall of Terrace 1 and includes south-facing windows above part of another dwelling, as shown with the proposed boundary on proposed Section C of the amended Architectural Plans (Issue 16) dated November 2025 (Ex 3, p 7 [22]). Mr Miletic further details proposed common walls in [23] and [24] on p 8 of Ex 3, and goes on to state:

“Therefore, Torrens title subdivision is not appropriate because the development could not be properly characterised as ‘attached dwellings’, which requires that ‘none of the dwellings is located above any part of another dwelling’ and that ‘each of the dwellings is on its own lot of land.” (Ex 3, p 8 [25])

19. Mr Barwick’s evidence in relation to Contention 1 is summarised as follows:

20. External changes to the built form whether the Site is a strata title subdivision or a Torrens title subdivision is equally difficult given the planning framework and the location of the Site in a heritage conservation area. Other than internal changes, options to pursue further development as complying development consent would be highly limited. Should the future owners seek to make additions or alterations development consent would be required with the full development assessment to be undertaken to the satisfaction of Council. (Ex C p 4 [2])

21. It is incorrect to state that the Original Consent was an adaptive re-use of the former warehouse. The Statement of Environmental Effects in the Original DA did not invoke the adaptive reuse of existing buildings in Zone R1 of the now repealed Leichhardt Local Environmental Plan 2013 (LLEP 2013). There was no reliance upon cl 6.11 of LLEP 2013 as multi-dwelling housing was a land use permitted with consent, and there was no requirement or proposition of the maintenance of the characteristics of a warehouse building. (Ex 3 p 5 [3]-[5])

22. The Council submits that the Original Consent granted the use to be multi-dwelling housing, and that the definition in the IWLEP 2022 prevents the development being described as an “attached dwelling”, particularly because the third part of the definition states: “(c) none of the dwellings is located above any part of another dwelling”. (Ex 3 p 5 [7]-[8]).

23. Council submits in Contention 1(c) that in a Torren title subdivision of this Site there is a requirement for ‘onerous’ easements. This is incorrect. Council has already applied three separate street addresses to the dwellings; each dwelling has separate utility and services connections and separate stormwater connections to Council’s street systems. There is a greater administrative burden in a strata title development with the need to create an owners’ corporation to administer three dwellings which have been approved and constructed so as to operate independently. There are no areas of common property to manage. The only common property would be the external building fabric. (Ex 3, pp 5 and 6 [9])

24. Further with a strata title, there is likely to be an inequitable burden in that there is likely to be greater on-going cost of maintenance to the retained façade to Beattie Street. In a strata scheme two property owners (3A and 3B Little Llewellyn Street) derive no benefit from the retained façade to Beattie Street, but would be required to contribute to its upkeep and maintenance. This lack of an equitable cost burden can become problematic in strata schemes. (Ex 3 p 6 [12]-[13])

25. In response to the definitional issues of ‘multi-dwelling housing’ versus ‘attached dwelling’ and the issue of an unauthorised wall in Terrace 2 by Mr Miletic, Mr Barwick does not agree that the pattern of development results in any part of a dwelling being over another dwelling. An easement in favour of 3A and 3B Little Lewellyn Street and burdening 77 Beattie Street for the south facing windows will be required, however, the walls align with the boundary. In simple terms no part of the accommodation within any of the proposed lots overlaps the dwelling on another proposed lot thus complying with the definition of ‘attached dwellings’. The double brick wall within 3A Little Llewellyn Street (Terrace 2) is a proposed wall to satisfy BCA separations and is not ‘unauthorised’. (Ex 3 p 6 [14])

26. The town planning experts agreed (Ex 3, p 9 [26]) that the minimum lot sizes set out in Council’s Contention 2 particulars is correct:

Particulars

(a) The minimum subdivision lot size pursuant to cl 4.1 of IWLEP 2022 is 200m2.

(b) The proposed lot sizes and subsequent variations to the development standard are as follows:

(i) Lot 1 (77 Beattie St Balmain): 79.8m2, a variation of 120.2m2 or 60.1%.

(ii) Lot 2 (3A Little Lewellyn St Balmain): 100.4m2, a variation of 99.6m2 or 29.8%.

(iii) Lot 3 (3B Little Lewellyn St Balmain): 100m2m, a variation of 100m2 or 50%.

21. The town planners then addressed particulars (c) and (d) in Contention 2. Particulars (c) and (d) are set out below:

(c) The Proposal creates lots that are not consistent with the surrounding prevailing subdivision pattern, contrary to O1(b) and C2 in Part c 1.6 of the Leichhardt Development Control Plan 2013 (LDCP 2013) and cl 4.1 of IWLEP 2022.

(d) A written request to vary the minimum lot size development standard, pursuant to cl 4.6 of IWLEP 2022 fails to demonstrate that compliance with the development standard is unreasonable in the circumstances …..

22. Mr Barwick stated that objectives O1(b) and control C2 have no work to do in the circumstances. The application seeks the subdivision of an approved pattern of development. The pattern of development has been established by the previous consent for the development of three dwellings on the land. He further states that “indeed, the subdivision pattern would be wholly unknown to most observers in the public domain. The pattern of development that would be observed from the public domain would be that [sic] same with or without a subdivision of the land.” (Ex 3, pp 9 and 20 [27]-[31])

23. Mr Miletic stated in relation to Contention 2:

“…the introduction of new Torrens title lot boundaries for the three ‘attached dwellings’ as proposed with individual site curtilages between the rear boundary of Lot 1 (Terrace 1) and the southern boundary of Lots 2 and 3 establishes a new relationship with the physical built form that is inconsistent with the existing pattern of development. Whilst the physical appearance of the built form remains unchanged as currently proposed, a Torrens title subdivision has the effect of creating three individual site curtilages with the opportunity for individual development to occur in piecemeal on each lot over time.” (Ex 3, p 10 [32])

“…The proposed subdivision pattern would be wholly inconsistent with the prevailing subdivision pattern in terms of lot dimensions and areas, whereas the approved consolidation of the site would maintain consistency with the prevailing pattern with lot boundaries to both Beattie Street and Little Llewellyn Street.” (Ex 3, p 10 [33])

“Further, the proposed lot size non-compliances are not acceptable given the development is not suited to Torrens title subdivision as it could not be properly characterised as ‘attached dwellings’, which required that ‘none of the dwellings is located above any part of another dwelling’ and that ‘each of the dwellings is on its own lot of land.”

24. In relation to Contention 3: Minimum Landscaped area, the town planning experts agreed that the proposed subdivision makes no changes to the provision of the landscaping on-site. The town planning experts agreed that “the development was approved with no landscaped area and approving the Torrens title subdivision or pursuing a strata subdivision will not alter this outcome.” (Ex 3 p 11 [35])

25. In relation to Contention 4: Floor Space Ratio (FSR) cl 4.4 of IWLEP 2022, this issue will be dealt with later in the judgment when considering the application of case law. However, in summary the position of the experts is:

26. Mr Barwick: “The variation is a mathematical outcome and does not result in any actual change to built form or environmental impacts.” (Ex 3 p 14 [42])

27. Mr Miletic: “The effect of the proposed Torrens title subdivision is to allow an increased maximum potential FSR for each proposed attached dwelling based on the sliding scale under Clause 4.4, which permits higher FSR as lot size decreases.” (Ex 3 p 14 [48])

28. In relation to Contention 5: Maximum site coverage, the town planning experts agree that “Other than the mathematical non-compliance, no environmental impact has been identified as no impacts arose from the proposed method of land title under which the land would operate”. (Ex 3 p 17 [55]).

29. The Applicant had formerly lodged an application for strata subdivision on the site. In cross examination Mr Miletic agreed that:

30. Strata subdivision would be acceptable in the particular circumstances of the Site. (T 08/12/25 P 18 L 47-50)

31. In IWLEP 2022 cl 4.1 Lot Size control does not apply to strata subdivision. (T 08/12/25 p 19 L 2-6)

32. Strata subdivision has no control other than a requirement to obtain development consent. (T 08/12/25 p 19 L8-10)

33. In the locality strata subdivision can still achieve a variety of development, and lot sizes, in the same way that Torrens title subdivision can achieve a variety of lot sizes and subdivision. (T 08/12/25 p 19 L 13–35)

34. Consistent with his position that strata subdivision would be appropriate, the lot sizes proposed would not result in any adverse amenity impacts. (T 08/12/25 p 19 L 37-46)

35. Strata subdivision would result in lot sizes that do not have any impact upon the architectural urban and landscape design because they are matters that have been dealt with under separate development consents. (T 08/12/25 p 19 L 47–50 and p 20 L 1)

36. The statements above in relation to strata title subdivision are also true in relation to Torrens Title subdivision. (T 08/12/26 L 3-6)

37. In broad terms there are concerns that in a Torrens Title subdivision the three lots would be in separate ownership and capable of change over time. (T 08/12/25 p 20 L 8-20)

38. There is a variety of lot sizes in Balmain. There are some attributes of the existing subdivision pattern which are consistent such as where there are rear lane frontages, a lot is typically dual fronted such that rear lane access is available to a long and narrow lot which is a distinctive feature of many dual fronted lots in the area. (T 08/12/25 p 20 L 20-24)

39. In referring to lots in the immediate vicinity of the Site with rear frontage to a lane and private frontage to a street, Mr Miletic did not ignore the adjacent building to the east of the Site known as the Derrin building. He said:

“So I’m not ignoring the Derrin building but I appreciate there is a variety in the existing subdivision pattern in that there are large historic buildings in the vicinity which sit on much larger parcels of land. So I’d characterise the pattern as one of either large consolidated lots which accommodate historical warehouse buildings or similar buildings of a large area and the other type being the long, narrow, smaller lot sizes which accommodate single dwelling development with rear lane access. (T 08/12/25 p 21 L 22-29)

11. There is a variety in the pattern of subdivision, and the desired future character of Balmain is consistent with the two varieties of subdivision I have mentioned above. (T 08/12/25 p 21 L 35-44)

12. There is absolutely no difference to the built form of the Site if there was a Torrens type of subdivision or if there was a strata subdivision. (T 08/12/25 p 21 L 45-50, and p 22 L 1)

13. When Mr Miletic discussed the pattern of development in his written evidence, he makes a distinction between the pattern of development and the pattern of subdivision in the area. There is no change to the pattern of development as a result of this subdivision application. “What there is, is a change to the subdivision pattern and the potential for change in my opinion is increased with a Torrens title subdivision which does not accord with the prevailing subdivision pattern. (T 8/12/25 p 23 L 14-20)

14. On the basis of delineation of the buildings in the strata subdivision plan (Sheet 2 of Ex C), the only common structure is the common wall between the lots which form a ‘T’, and in terms of the pattern of development the Torrens title subdivision pattern of the “T” is the same as the strata subdivision pattern of the “T”. (T 08/12/25 p 26 L 8-31)

15. In relation to the property known as 12 Llewellyn Street, that Torrens Title subdivision was appropriate because the land was divided into two allotments, both being of a sufficient size and each having access to a public street (Beattie Street and Llewellyn Street). (T 08/12/25 p 27 L 12-24)

16. Agreed that the Site is currently held in an underlying cadastral pattern of two individual allotments, and that the underlying cadastral pattern is a relevant consideration. (T 08/12/25 p 27 L 27-3)

17. In relation to the desired future character or the character of that pattern because there has been large warehouses built across this site and the adjoining site to the east. The only relevance it has is the fact that each of those existing or former built forms and existing built forms had frontage to a primary road and rear access to the lane at Little Lewellyn Street. (T 08/12/25 p 27 L 33-46)

18. There is no zone objective for the land use zone that provides for the desired future character about the pattern of subdivision. (T 08/12/25 p 28 L32-36)

19. In the IWLEP 2022 the desired future character Mr Miletic relies upon is something which is drawn from both the existing context, and we see currently on the site and in the vicinity of the site. It is also drawn from the Distinctive Neighbourhood controls and the Councils DCP and siting and design controls in the DCP which are different controls to the IWLEP 2022. (T 08/12/25 p 38 L 45-50 and p 29 L 1-5)

20. In the IWLEP 2022 Mr Miletic would rely upon the existing development that we see on the ground as we inspected the Site. (T 08/12/25 p 29 L 7-10)

21. Mr Barwick gave evidence in cross-examination:

22. In relation to the pattern of development, looking broadly at the SIX viewer cadastral map at 12 Llewellyn and 41 Beattie Street, what you observe is that the Torrens title lots which exist all have a frontage to a public road. (T 08/12/25 p 29 L 14-34)

23. There is a lack of battleaxe-shaped allotments in the locality and the three lots that are proposed each have a frontage to a public road, either Little Llewellyn Street or Beattie Street. That pattern of how the development of the Site has been approached is consistent with the development at 12 Llewellyn Street. (T 08/12/25 p 29 L 36-43)

Submissions

29. The Applicant’s submissions (taken substantially from Ex B):

30. In Contentions 3, 4 and 5 in Ex 1 Council contends that the development application should be refused on the basis that the proposed development does not comply with the following principal development standards with the IWLEP 2022:

(a) Clause 4.3C(3)(a): Minimum landscaped area (Contention 3); (b) Clause 4.4(2): Floor space ratio (Contention 4); and (c) Clause 4.3C(3)(b): Maximum site coverage (Contention 5).

2. In Ex 3 [36], the town planners agreed that “There is a technical argument that there is no requirement for the landscaped area non-compliance as there is no work proposed that alters the current non-compliance”.
3. Whilst this agreement of the town planning experts was made in relation to the minimum landscaped area control at cl 4.3C(3)(a) of IWLEP 2022, for the reasons set out below, this statement is equally applicable to both the FSR and maximum Site coverage standards at cll 4.4 and 4.3C(b) of IWLEP 2022. The Applicant submits that the landscaped area, the FSR ratio and the maximum Site area standards do not apply to the proposed development.
4. The DA seeks consent to a Torrens title subdivision only. The proposed development does not involve any change to the existing or approved building on the Site.
5. The Court in Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 (Landcorp) relevantly held that the maximum height of building standard in cl 4.3 of the Sydney Local Environmental Plan 2012 does not apply to a proposed development for a business identification sign which does not ‘contribute to’ or ‘alter’ the height of a building. Relevantly –

“[55] The development as proposed in the DA is not development that contributed to or is altering the height of the building. It is, as it presently exists, at a height of 64m and, therefore, in excess of the maximum height of 55m fixed in the Height of Buildings Map for the Subject Site.”

“[56] The context of this clause is that it is located in that part of the LEP which is directed to the provision of development standards for new development. It manages change. To read the clause in this context it can only be relevantly operative where the development proposed creates some exceedance to the

height of a building as objectively determined by reference to the objective means of measuring height as provided for in the LEP.”

6. Like the height of building control, cll 4.3C and 4.4 of IWLEP 2022 are similarly located in Pt 4 of the IWLEP 2022 which, as the Court recognised in Landcorp, contains a provision which is directed to the regulation of new development in order to manage change.

7. The Court’s reasoning in Landcorp has been adopted and applied in the context of a development application for the subdivision of land on which there are existing buildings, and where no consent was sought for any additional or modified buildings.

8. In Investa Nominees (2) Pty Ltd v City of Sydney Council [2024] NSWLEC 1048 (Investa), the Court found (adopting the reasoning in Landcorp) at [89] that the FSR control in cl 4.4 of the relevant local environmental plan did not apply to a development application for strata subdivision as consent was not sought for the erection of any buildings.

9. Similarly in Connolly v Waverley Council [2024] NSWLEC 1580 (Connolly) the Court found (following Landcorp and Investa) at [51] that the FSR control did not apply to a development application for Torrens subdivision of land containing an existing residential flat building and a heritage building containing two dwellings.

10. The above decisions make clear, particularly Investa and Connolly, that where the development the subject of the application does not ‘contribute to’ or ‘alter’ (adopting the Court’s terms in Landcorp) the gross floor area of the development, the FSR does not apply.

11. The same reasoning is equally applicable to cl 4.3C(a) (landscaped area) and 4.3(3)(b) (site coverage) of IWLEP 2022. These provisions both seeks to control the amount of built form that may occupy a site. The objectives of these development standards are set out in cl 4.3(1) and relevantly include ensuring the provision of adequate landscaping, controlling site density and ensuring development promotes the desired character of the neighbourhood. These standards are directed to controlling prospective built form. As explained in Landcorp, when read in that context, on their proper construction the development standards at cl 4.3(C)(3) could only ever apply to development which actually proposed a change to the amount of built form on a site.

12. Like Investa and Connolly, the DA before the Court involves subdivision without any increase to the built form. As such the DA does not ‘contribute to’ or ‘alter’ the gross floor area, site coverage or landscaped area. In those circumstances, we consider that cll 4.3C(3)(a), 4.3C(3)(b) and 4.4(2) of IWLEP 2022 do not apply to the DA, and a cl 4.6 request pursuant to IWLEP 2022 is not required in relation to each standard.

13. Council’s submissions are:

14. Whilst the contentions remain, it appears the main issues in these proceedings are that the DA:

(a) Results in a three-lot subdivision that are undersized, and (b) Does not result in a development consistent with the prevailing pattern of development.

2. The proposed Torrens title subdivision of itself is a stand-alone form of development defined by s 1.5 of the EPA Act.
3. The Site is zoned R1 General Residential pursuant to the IWLEP 2022, and the last objective is the relevant one for these proceedings:

“To provide residential development that maintains the character of built and natural features in the surrounding area.”

4. Mr Miletic considers the characterisation of the subdivision as ‘attached dwellings’ and the works constructed on site would not satisfy the definition of “attached dwellings” in the definition (s 1.5 of EPA Act) as the works do not comply relevantly with:

“(b) each dwelling is on its own lot of land, and

(c) none of the dwellings is located above any part of another dwelling”.

5. The proposal does not comply with the objectives or the lot size provision of 200 m2 in cl 4.1 of IWLEP 2022:

4.1 Minimum subdivision lot size

(1) The objectives of this clause are as follows—

(a) to ensure lot sizes cater for a variety of development,

(b) to ensure lot sizes do not result in adverse amenity impacts,

(c) to ensure lot sizes deliver high quality architectural, urban and landscape design,

(d) to provide a pattern of subdivision that is consistent with the desired future character,

…...

(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

……

(a) The proposed lot area sizes are as follows:

Lot 1 (77 Beattie Street Balmain): 79.8m2;

Lot 2 (3A Little Llewellyn Street Balmain): 100.4m2

Lot 3 (3B Little Llewellyn Street Balmain): 100m2

6. The lots within the proposed subdivision exceed the FSR Control (FSR) in cl 4.4 of IWLEP 2022. The Site at present has a FSR control of 0.5:1, whereas after subdivision Lots 1, 2 and 3 will each have a maximum FSR of 1:1 (Ex 1, p12 cl 4.4 (2B)(b) area 3), meaning that the subdivision will result in an increase in floor area developed on the total site.

(a) The maximum FSR permitted for each proposed lot is:

Lot 1: 1:1 or 79.8m2

Lot 2: 1:1 or 100.4m2

Lot 3: 1:1 or 100m2

(b) The proposed subdivision exceeds the maximum permitted FSR for each lot as follows:

Lot 1: 1.015:1

Lot 2: 1.27:1

Lot 3: 1.275:1

7. The minimum landscaped area required for each proposed lot pursuant to cl 4.3C(3)(a)(i) of IWLEP 2022 (Ex 1, pp 9 & 11) is as follows:

Lot 1: 15% or 11.97m2

Lot 2: 15% or 15.06m2

Lot 3: 15% or 15m2

(a) The proposal seeks to provide nil landscaped area to each lot proposed, resulting in a 100% variation to the landscaped area development standard.

8. The maximum site coverage permitted for each proposed lot pursuant to cl 4.3C (3)(b) of IWLEP 2022 (Ex 1 pp ( & 11) is as follows:

Lot 1: 60% or 45.88m2

Lot 2: 60% or 60.24m2

Lot 3: 60% or 60m2

(a) The proposed subdivision exceeds the maximum permitted site coverage for each lot:

Lot 1: 79.8m2

Lot 2: 110.4m2

Lot 3: 100m2

9. The Site is within the HCA pursuant to cl 5.10(2) of IWLEP 2022. The relevant objectives are to conserve the environmental heritage of the Inner West and to conserve the heritage significance of heritage conservation areas, including associated fabric, settings and view. Clause 5.10(4) of IWLEP 2022 provides that the consent authority must before granting consent consider the effect of the proposed development on the heritage significance of the area concerned. The Respondent relies upon the view of Mr Miletic in this regard.
10. The relevant parts of Leichhardt Development Control Plan 2013 (LDCP 2013) are:

(a) Section C1.1: Site and context analysis which provides that the Site is not to be considered in isolation. Relevantly objectives O1(a) to (h) and O2 which deals with matters to be taken into account: existing and nearby site conditions, development trends in vicinity of the site. (b) Section C1.1.1 refers to the site and context analysis documentation requirements. The Respondent relies upon Kharzoo v Inner West Council [2017] NSWLEC 1717. This property is located at 12 Llewellyn Street Balmain which is to the east of the Site. The proceedings involved the subdivision of land, alterations and additions. It has a dwelling which faces Beattie Street and one which faces Llewellyn Street. The subdivision results in two allotments: one of 200.1 m2 and one of 309 m2. Both allotments comply with the area requirements of cl 4.1 of IWLEP 2022. (c) Section C1.6: subdivision, relevant are objective O1(b) and Control C1 and C2:

O1: objective b. creates lots that are consistent with the surrounding, prevailing subdivision pattern …

C1: Except for strata subdivision of buildings, the minimum lot size for dwellings is 200m2

C2: New Allotments shall be consistent with the prevailing subdivision pattern in the neighbourhood.

(d) Section C2.2.24: The Valley Balmain Distinctive Neighbourhood – control C4

C4: Preserve the rhythm of the neighbourhood by maintaining the lot sizes, housing style and prevalence of hipped and pitched roofs. Preserve the established setbacks for each street.

11. The Respondent relies upon the case of Threlfo v Inner West Council [2022] NSWLEC 1659 (Threlfo) where a lot containing a dual occupancy sought approval for a two lot subdivision. The appeal was dismissed. The Respondent relies upon paragraphs [56], [57] and [58]:

“[56] As outlined in Como v Marrickville CC [2006] NSWLEC 105, ‘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 subdivisions providing separate title’. Further MDCP does not identify built form as an element to be assessed in the determination of the prevailing cadastral pattern. Control C5 of MDCP explicitly identifies the characteristics which together create the cadastral pattern – the area, dimensions, shape and orientation of the lots.”

“[57] The Applicant argued that the built form outcome after subdivision may not be materially different as the dual occupancy development on both lots remains. That may be correct, however, it is not relevant to the consideration before the Court. The question is one of subdivision alone and the existing cadastral pattern and how the lots have been created in the past is to be reflected and reinforced by any new subdivision (Objective O5). In my view it is the characteristics of the pattern of subdivision which are the foundation of the assessment, not the built form outcome (Control C5).

“[58] 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. As noted by Commissioner Clay in Fuller v Inner West Council [2019] NSWLEC 1506, a ‘subdivision pattern is 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.’”

12. In Threlfo the Court held that at [59] ‘the proposed lots are significantly smaller in area and different in shape to the prevailing cadastral character of both Hercules Street and Beach Road and the proposal does not reflect or reinforce the predominant subdivision pattern of the street.’ And in [60] ‘The area, dimensions and shape of the proposed subdivision is inconsistent with the prevailing cadastral pattern and so the application must fail.’

13. The Respondent submits that it has not received any document from the Applicant that informs it what area has been considered to work out the prevailing subdivision pattern. The DA should be dismissed based on the fact that the Applicant has not provided information to inform the Council that the subdivision is consistent with the prevailing subdivision pattern in this locality. The LDCP 2013 says that you have to do an analysis of the prevailing subdivision pattern and that has not been done so the DA should be dismissed.

14. The Respondent has considered the State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pts 2.2, 2.3 and 6.6. There are no trees, building works or the carrying out of any works, and the site is not located in a foreshores and waterways area. The requirements of Pts 2.2, 2.3 and 6.6 are satisfied.

15. The Respondent has considered the State Environmental Planning Policy (Resilience and Hazards) 2021 (R and H SEPP) where the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. There has been evidence of contamination on the Site but the Site has previously been remediated in accordance with the conditions under the Original Consent. The requirements of s 4.6 of the R and H SEPP have been satisfied.

16. The Applicant’s submissions in reply were:

17. The Threlfo case does not apply to the circumstances in these proceedings for the following reasons:

(a) [25] The provisions relating to subdivision are in Part 3 of the Development Control Plan, and most relevantly Clause 3.3.2 which provides an Introduction Objectives and Controls. The Introduction includes the following statement:

“In response to the diversity of household sizes and open space needs Council’s subdivision controls permit a variety of lot sizes and provided that 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.”

(b) [26] The Objectives in Part 3 are as follows:

“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.”

(c) [27] There are four controls, the first of which, C5, is one of the key issues in this appeal:

“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.”

2. The decision in Threflo can be contrasted with the objective of the minimum lot standard in IWLEP 2022 which is to provide a pattern of subdivision that is consistent with the desired future character.
3. So where there is no assessment or even identification of a prevailing cadastral character by Mr Barwick, that should not be seen as a criticism – it is because these controls do not ask for that assessment. What cl 4.1 if IWLEP 2022 does require is that the Court is satisfied, having regard to Mr Barwick’s cl 4.6 Request in the Class 1 Application, that:

(a) Compliance with the development standard is unreasonable or unnecessary or unnecessary in the circumstances; and (b) That there are sufficient environmental planning grounds to justify the contravention of the standard.

4. I refer the Court to the cross examination of Mr Miletic in relation to the power of the owners of the Torrens title land compared to the owners of a strata subdivision. In both cases Mr Miletic conceded that one might have extra forms and two other owners to deal with in a strata title subdivision, but both Torrens and strata title properties are capable of changes to the built form.
5. Mr Miletic also gave another fair concession in cross examination, that the historical cadastral pattern is something that is just that, it is historical. When dealing with the objective of providing a pattern of subdivision that is consistent with the desired future character, there is nothing in IWLEP 2022 that requires or indicates a shape or frontage of a particular lot as part of the subdivision pattern that was part of the desired future character, absent, of course, the minimum lot size, but that does not formulate the shape of a lot.
6. Mr Barwick’s evidence was that what shaped the desired future character was that there was a distinct absence of battleaxe blocks or unusually shaped blocks, except the corner blocks which are necessarily at triangles. On the regular shaped lots, including Council’s example at 12 Llewellyn Street, the lots all have a frontage to a street, and that is no different to the current application before the Court.
7. The heritage experts required the front of the former industrial building to be retained, which necessitated the allotment over the two former Torrens title lots fronting Beattie Street. The rear allotments are retained and given the numbering by Council of 3A and 3B Little Llewellyn Street.
8. In Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115, (SJD DB2) a decision by Preston CJ. Although the development will be six storeys, the street wall height is four storeys and the top two storeys are recessed and will be less visible from the street. The proposed development breaches both the height and floor space ratio (FSR) development standards in Woollahra Local Environmental Plan 2014 (WLEP):

Preston CJ held at [41] …”The term “desired future character” is not defined in WLEP. There is no prescription of matters to be considered or process to be followed to determine what is the desired future character of a neighbourhood or area. In these circumstances, it is a question of fact as to what is the desired future character having regard to all of the circumstances of the case. These circumstances include how the Council has implemented its controls and determined development applications for development that contravenes the controls.”

[46] First, the Commissioner was not legally obliged to construe the term “desired future character” in WLEP by reference to the desired future character provisions of WDCP. As SJD submitted, the provisions of a development control plan cannot be used to interpret the provisions of a local environmental plan, unless the provisions of the local environmental plan expressly refer to the provisions of the development control plan for that purpose. WLEP does not refer to WDCP as explicating the meaning of the term “desired future character” used in provisions of WLEP.

[47] The fact that the principal purpose of a development control plan is to provide guidance on certain matters referred to in s 3.42(1) of the EPA Act does not make it permissible to construe the provisions of a local environmental plan by reference to a development control plan.

[50] This is not to say that it was not permissible for the Commissioner to have had regard to the desired future character provisions in WDCP, only that he was not bound to do so. There can only be an error on a question of law by failing to address a matter that the Commissioner was bound to address. Failure to address a matter that was permissible to consider, but not mandatory to consider, is not an error in deciding a question of law: Minister for Aboriginal Affairs v Peko Wallsend Ltd at 39-40; Randall v Willoughby City Council (2005) 144 LGERA 119; [2015] NSWCA 205 at [15].

[52] Secondly, the Commissioner did not take into account an irrelevant consideration in construing and applying the term “desired future character” in WLEP. As has been noted, the term “desired future character” is not defined in WLEP. Its meaning is to be derived from the text and context of the provisions of WLEP in which it is used and the other provisions of WLEP that frame the urban character and built form of the neighbourhood or area. These provisions include the zoning of land (cl 2.2 and the Land Zoning Map), the zone objectives (cl 2.3), the Land Use Table (at the end of Pt 2) and the development standards in Pt 4, including height of buildings (cl 4.3 and the Height of Buildings Map) and FSR (cl 4.4 and the Floor Space Ratio Map). Together, these provisions of WLEP shape the desired future character of neighbourhoods and areas in Woollahra.

[63] This circularity is avoided if the term “desired future character” is construed as permitting regard to be had to matters other than only the development standard. On this construction, the desired future character of the neighbourhood or area can be shaped not only by the provisions of WLEP, including the development standards themselves, but also other factors, including approved development that contravenes the development standard

9. The size of lots informs the built form that is the development on the Site, and it is bookmarked by the non-negotiable heritage wall to Beattie Street, and then where it reflects the cadastral plan or the historical cadastral plan to Little Llewellyn Street, it is exactly in the formation as you read it that you would expect of a subdivision pattern that meets the existing character of the locality, and the desired future character. In applying the decision in SJB DB2 you can inform yourself by the LDCP 2013 controls, but it is not a requirement to be able to determine the desired future character under that control, or to determine that or the purposes of the IWLEP 2022.

Findings

Contentions 1 and 2

32. This is an appeal against Council’s refusal of the DA to subdivide two lots into three lots, noting that the Original DA included a condition for consolidation.

33. The Original DA has been the subject of several modification applications, but for the purposes of this judgment I shall refer to the Original DA which includes all approved modifications.

34. The Original DA granted approval for demolition of most of the fabric on the Site, noting that the eastern and western boundary walls were constructed on adjoining land. The Original DA also granted approval for the construction of three dwellings: Terraces 1, 2 and 3.

35. Terrace 1 abounds Beattie Street (77 Beattie Street Balmain). Terrace 1 conforms to the advice of the heritage experts in that it retains the original industrial façade, and occupies part of Lot 24 and Lot 25.

36. Terraces 2 and 3 each occupy either the rear portion of Lot 24 or 25.

37. Council allocated addresses to Terraces 2 and 3 are 3A and 3B Little Llewellyn Street Balmain.

38. Each Terrace is serviced separately (including utilities), and each has direct access onto a public street.

39. Council submitted that the Original DA was approved as an adaptive reuse of a heritage property. The Site was not, and is not, listed as a local heritage item under IWLEP 2022. The Site is located within the HCA.

40. After perusing the judgment in Abraham, and documentation available to me, I have not been able to confirm that the Original DA was an adaptive reuse. It was a development application for alterations and additions, and it was granted as such in Abraham.

41. The Original DA was granted as multi-use housing under IWLEP 2022. The DA before the Court seeks approval for a subdivision of the Site and ‘attached housing’. The definitions in IWLEP 2022 are as follows:

attached dwelling means a building containing 3 or more dwellings, where—

(a) each dwelling is attached to another dwelling by a common wall, and

(b) each of the dwellings is on its own lot of land, and

(c) none of the dwellings is located above any part of another dwelling.

Note—

Attached dwellings are a type of residential accommodation—see the definition of that term in this Dictionary.

multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building.

Note—

Multi dwelling housing is a type of residential accommodation—see the definition of that term in this Dictionary.

residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following—

…..

Attached dwellings

…..

Multi-dwelling houses

…...

42. Whilst the Council indicated it would approve a strata subdivision (as it would be on one allotment of land) it would not approve a Torrens title subdivision of land because the DA does not fall within the definition of ‘attached dwelling’ as the rear northern wall of Terrace 1 supports the rear southern wall of Terraces 2 and 3. Mr Miletic relies on the exception in (c) of the definition to refuse the DA. Mr Miletic also opined that it is more difficult to alter the fabric of a strata title development and therefore strata subdivision is a better outcome.

43. Mr Barwick’s evidence is that the development does not result in any part of a dwelling being over another dwelling. An easement in favour of 3A and 3B Little Llewellyn Street and burdening 77 Beattie Street for the south facing windows will be required, however the walls align with the boundary. No part of the accommodation within any of the proposed lots overlaps the dwelling on another proposed lot, thus complying with the definition of ‘attached dwelling’. Mr Barwick also disagreed the Mr Miletic on the ease of alteration of each dwelling if it is Torrens title as a development application would be required, and it would need to comply with the planning scheme, bearing in mind the Site falls within the HCA. Alterations in the future would be unlikely. I accept Mr Barwick’s evidence in this regard.

44. Council’s first main issue is: The DA results in a three lot subdivision which is unacceptable as each lot is undersized. In this regard Council relies on cl 4.1 of IWLEP 2022.

45. Mr Miletic and Mr Barwick agree that the relevant minimum size of allotment is 200 m2. The areas of the Terraces is set out in the JER Town Planning (Ex 3) and [19] above. The town planners disagree as to the application and relevance of cl 4.1 of IWLEP 2022.

46. Attached to the Class 1 Application (Ex A) tab 8 is a Clause 4.6 Request in relation to the application of cl 4.1 of IWLEP 2022.

47. Council relies up particulars (c) and (d) in Contention 2 of Council’s SOFAC (Ex 1), which in summary states:

48. The DA creates lots which are inconsistent with the surrounding subdivision pattern (see [20]) as required by LDCP 2013); and

49. The cl 4.6 request fails to demonstrate that compliance with the development standard is unreasonable in the circumstances.

50. I refer to Figure 1 in [3] above. The surrounding pattern of development is long narrow allotments except where there are triangular corner lots, or several lots have been consumed into one industrial development, e.g. Lots 24 and 25 in the former industrial development on the Site, and the Derrin Building to the east of the Site which appears to occupy six allotments. The façade to 77 Beattie Street is maintained within Terrace 1 – therefore no perceptible change to the streetscape of Beattie Street since the industrial development on the Site, noting Terraces 2 and 3 have been set back 10 m and their windows have been approved by the heritage experts to complement the façade at ground level. Terraces 2 and 3 each relevantly occupy Lot 24 and 25, face onto the street and have been given the addresses by Council of 3A and 3B Little Llewellyn Street.

51. Mr Barwick’s evidence is that objectives O1(b) and control C2 of LDCP 2013 have no work to do in the circumstances of this case. The DA seeks the subdivision of an approved pattern of development, and that pattern has been established by the Original DA for the development of three dwellings on the Site.

52. Mr Miletic disagrees with Mr Barwick, and opines that whilst the physical appearance of the built form remains unchanged, a Torrens title subdivision has the effect of creating three individual curtilages with the opportunity for individual development to occur in piecemeal on each lot over time. The proposed subdivision would be wholly inconsistent with the prevailing subdivision pattern in terms of lot dimensions and areas.

53. However, in cross examination in relation to a proposed Strata subdivision on the land, Mr Miletic agreed that his statements in relation to a Strata subdivision are also true in relation to Torrens title subdivision. In other words, taking into consideration the development in the Original DA and the surrounding prevailing subdivision pattern, his comments in relation to a Strata title subdivision equally apply to a Torrens title subdivision.

54. In relation to objective (d) of cl 4.1 of IWLEP 2022: to provide a pattern of subdivision that is consistent with the desired future character, Mr Miletic agreed:

55. There is no zone objective for the land use zone (R1 General Residential) that provides for the desired future character about the pattern of subdivision; and

56. Advised he relied upon something which is drawn from both the existing context currently on the site and in the vicinity of the site, and from controls in the LDCP 2013. In relation to IWLEP 2022 Mr Miletic relies upon the existing development that we viewed during the Site inspection.

57. On the other hand, Mr Barwick drew the Court’s attention to the pattern of development at 12 Llewellyn Street and 41 Beattie Street where the Torrens title lots all have a frontage to a public road. He further noted that there is a lack of battleaxe-shaped allotments in the locality.

58. The Council relies upon the case of Threlfo where a lot containing a dual occupancy sought approval for a two lot subdivision. Acting Commissioner Sheridan dismissed the appeal relying upon the DCP controls, and finding at [59] that the proposed lots are significantly smaller in area and different in shape to the prevailing cadastral character of the adjoining streets. Further the area, dimensions and shape of the proposed subdivision is inconsistent with the prevailing cadastral pattern. I am not bound by a decision of a Commissioner and for the reasons set out below, I do not rely upon Threlf**o.

59. The Council submits that it has not received any document from the Applicant that informs it what area has been considered to work out the prevailing subdivision pattern. Applying SJD DB2, that as the ‘desired future character’ was not required under IWLEP 2022, and only in LDCP 2013, it was not incumbent upon the Applicant to supply such information.

60. In cross-examination Mr Miletic conceded that the historical cadastral pattern is something that is just that – it is historical.

61. The Applicant relies upon the decision in SJD DB2 by Preston CJ on appeal from Acting Commissioner Clay. In [41] the Court held that where ‘desired future character’ is not defined in the IWLEP 2022, there is no prescription of matters to be considered or process to be followed to determine what is the desired future character of a neighbourhood or area. It is the desired future character having regard to all of the circumstances of the case. Further in [46] the Court held that the Commissioner was not legally obliged to construe the term “desired future character provisions” in Woollahra Local Environmental Plan 2014 by reference to the desired future character provision of the Woollahra Development Control Plan 2015 (WDCP).

62. In the present case the Council has misdirected itself in relation to the focus it has given to the LDCP 2013 controls regarding the ‘desired future character’ of the area in the circumstances where the ‘desired future character’ is not defined in the IWLEP 2022. In SJD DB2 the Court held at [50] “This is not to say that it was not permissible for the Commissioner to have had regard to the desired future character provisions in WDCP, only that he was not bound to do so”.

63. There are no works proposed by the DA. The works on the Site are contained in the Original DA. Terraces 1, 2 and 3 all have a frontage to a public road, and although the lot areas do not comply with cl 4.1, the lots do comply with the objectives and relevantly the desired future character.

64. The shape of the built form, and in this case the shape of the proposed subdivision, has arisen by implementing the advice of the heritage experts to retain the façade of the former industrial use on Beattie Street. By implementing the agreed advice of the heritage experts to retain the Beattie Street façade, the Applicant is upholding Council’s desired future character.

65. I find that the cl 4.6 request is to be upheld in the particular circumstances of this case where the built form is already approved, the Original DA has already been granted and is partly built, so that strict compliance with the area control in cl 4.1 of IWLEP 2022 is:

66. Unreasonable and unnecessary in the unique circumstances of this case, and

67. There are sufficient environmental planning grounds to justify the contravention of the standard.

Contentions 3, 4 and 5

62. Council contends that the DA should be refused because it does not comply with the principal development standards in IWLEP 2022:

Contention 3: Clause 4.3C(3)(a) Minimum landscaped area.

Contention 4: Clause 4.3 Floor space ratio.

Contention 5: Clause 4.4 Maximum site coverage

63. I accept the town planners’ agreement in Ex 3 [36] that there is no requirement for further landscaping as there is no work proposed that alters the current non-compliance.

64. That agreement should also flow to the FSR and maximum site coverage development standards.

65. The development standards in Contentions 3, 4 and 5 were part of the assessment for the granting of the Original DA. I note that the granting of the Original DA in Abraham arose from a s 34(3) Agreement between the parties.

66. I accept the submission by the Applicant in applying Landcorp, and as it has been adopted and applied in Investa and Connolly. The developments standards in cll 4.3, 4.3C and 4.4 of IWLEP 2022 do not apply to this DA for Torrens subdivision of land containing Terraces 1, 2 and 3 (when they are completed) as consent was not sought for the erection of any buildings. As such, the DA does not ‘contribute to’ or ‘alter’ (as those terms were used in Landcorp) the gross floor area, site coverage or landscaped area.

67. I note that the DA complies with the objectives of the R1 General Residential (R1 Zone) under the IWLEP 2022, as relevant:

To provide for the housing needs of the community

To provide for a variety of housing types and densities

To provide residential development that maintains the character of built and natural features of the surrounding area.

68. I shall uphold the appeal, and grant consent to the DA pursuant to s 2.6 of the EPA Act, and s 39(2) of the LEC Act subject to Annexure A.

Orders:

69. The Court orders:

70. The appeal is upheld.

71. Pursuant to cl 2.6 of the Inner West Local Environmental Plan 2022 consent is granted to Development Application DA/2025/0235 for the subdivision of the existing two Torrens title lots into three Torrens title lots on Lots 24 and 25 in Deposited Plan 2821 known as 77 Beattie Street Balmain NSW, and for the use of attached housing.

72. The exhibits are retained.

M Peatman

Acting Commissioner of the Court

**********

Annexure A (155 KB, pdf)