Conclusion
22For the determination of this matter, I have carefully considered the evidence, the submissions and undertaken a view. In this regard, I note that the appeal commenced by way of a s34 Conference on-site, which was terminated and the parties agreed to my determination of the matter.
23The determination is more involved because of the applicant's "stepped process" to obtain the 3 - lot subdivision approval to retrofit the MDD. This is shown in the draft conditions tendered, which provide for a 'deferred commencement' condition enabling this outcome.
24Notwithstanding this, it seems to me that the primary focus in this matter concerns the merits of the proposed 3 -lot subdivision application. Accordingly, I understand that the relevant evaluation criterion includes the following provisions in HLEP 1994 of a minimum lot size of 450 sqm and minimum frontage of at least 15m for the erection of a dwelling. These requirements are supported in cl 3.2.2.2 of the HDCP. In this regard, different and somewhat more relaxed density standards apply for MDD.
25Insofar as HLEP 2012 has been made, it now provides for a minimum lot size area of 450 sqm as a subdivision development standard but there is no minimum frontage requirement. However, the savings clause does not result in determinative weight being given to the HLEP 2012 provisions.
26By reference to the planner's 'locality' plan of the neighbouring area, I am satisfied that the majority of lots within it exceed the 450 sqm minimum area requirement. Whilst a considerable number of the lots are below the 15m frontage requirement, they are generally spread through the locality and contain existing dwellings, thereby significantly reducing their ability for subdivision as proposed in the subject application.
27When assessing a subdivision application for residential lots, a common consideration is whether suitable dwellings could subsequently be erected on the new lots, in compliance with the other relevant controls. This often involves the consideration of notional building footprints and building sections for the new lots.
28In the subject circumstances, the approved MDD proposal is directly related to the suitability of the new lots for dwelling houses and enables this suitability consideration. Insofar as Mr Nash says that this proposal is a unique development, I nevertheless think it will present differently to the existing residential subdivision character because of:
* The location of the 3 adjoining, narrow lots.
* The overall uniformity of the designs of the townhouses.
* The minimum side boundary setbacks, which contrast with the existing variable setbacks in the locality.
29My assessment is that the ultimate development would present more as group of buildings on smaller lots, which in Ms Bizimis opinion is not the planning outcome envisaged by the controls. In the subject context, I think that the likely outcome of 3 x 2 - storey dwellings on the subject lots would present more like other forms of higher density development rather than the predominant presentation in the locality of detached dwellings on larger lots within the locality.
30Therefore, I agree with Ms Bizimis that the proposed subdivision of the 2 existing lots into 3 non - conforming lots does not satisfactorily retain the pattern of subdivision and that it does not represent orderly development of the land. Consequently, I give diminished weight to Mr Nash's opinion that the subdivision should be approved because the streetscape and other impacts will be similar irrespective of the land title for the development.
31In support of this conclusion I note that the question of alternative title arrangements has been considered in a number of previous appeals. This includes Vescio v Manly Council [2012] NSWLEC 1098, wherein Pearson C and O'Neill C stated:
58 We accept that the difference in title if the subdivision is approved would not change the built form approved in the Townhouses appeal, and would not be discernible from any public place. However, we agree with Mr Stray that retaining a single allotment would assist in ensuring that the built form remained an integrated whole. In Brendan Howell v City of Canada Bay [2005] NSWLEC 335 Commissioner Watts commented, in the context of an application for the Torrens title subdivision of an attached dual occupancy development:
32 Also one could look to the planning consequences of an un-subdivided attached dual occupancy with one where each of the proposed new dwellings in the attached dual occupancy development are situated on a separate Torrens title lot. In the first instance the ownership would be likely to remain in the hands of a single entity and in the second each dwelling in the dual occupancy might be owned be a single entity. In the first, it is likely that the physical form of the two dwellings in an attached dual occupancy would remain as an integrated whole, as proposed, and thus appear more like a single dwelling in the street and fit in with the desired future character. In the second instance, each individual owner might seek to 'individualise' their dwelling so that each dwelling would appear different and the development complex not as an integrated whole. Thus, there is the potential for different planning outcomes in each case, as a result of subdivision. Even if the attached dual occupancy were strata titled, the building owners' corporation might exert some control over the aspirations of each of the potential individual lot owners and so keep the development as an integrated whole and one that would better fit in with the streetscape. Significant 'improvements' to each dwelling would need the approval of the owners' corporation
32Therefore, in the circumstances of this matter, I think that significant weight should be given to the DCP controls, which require a minimum subdivision lot size of 450 sqm and minimum frontage of 15m. Whilst the proposed subdivision does not comply with these controls, there is an additional control in cl 3.2.7 of the DCP, which deals with "subdivision title". Clause 3.2.7.2 - "Torrens Title Subdivision" states:
Allotments where dwelling houses or dual occupancy dwellings are proposed or exist are permitted to be Torrens Title. Residential flat buildings and multiple dwellings are not suitable for Torrens Title (my emphasis).
33According to Ms Bizimis, this is to maintain overall control of the multiple dwelling developments in some form of owner's corporation, rather than allowing separate owners to individually alter the overall development in the future. She expressed particular concern about the retention of the uniformity of the common front setback areas. This is to achieve the aims of orderly development for the various forms of residential development, considering the concessions allowed in site area for residential development not categorised as 'dwelling houses'. In the absence of any compelling evidence against this DCP provision on "subdivision title", I give it significant weight. Accordingly, the proposal is non - compliant.
34In this regard, I have also considered the submissions regarding consistency in decision making and the DCP provisions being the focal point for decision-making set out in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 and Zhang v Canterbury City Council [2001] NSWCA 167. Also, Stocklands Development Pty Ltd v Manly Council [2004] NSWLEC 472 where McClellan CJ examined the role and weighting for DCP provisions. Accordingly, I give determinative weight to the DCP provisions, resulting in the failure of the subdivision application.
35Apart from this, I note that a SEPP 1 Objection to the development standard in cl 11 of HLEP 1994 was initially lodged with the application. However, I accept Mr Cotton's submission that it is not relevant because it does not apply to the subject subdivision application, instead it applies to the minimum lot size for a dwelling house and it is not a development standard for a subdivision.
36In summary then, I consider that the proposed subdivision application when considered alone, does not merit consent because all of the three lots are deficient in area and frontage and the proposal is not consistent with the subdivision requirements for MDD stated in the DCP. Whilst the MDD is a separate matter, nevertheless the applicant's case is to effectively retrofit the MDD to the subdivision proposal. I rely on the opinion of Ms Bizimis that this outcome would result in an unsatisfactory change in the categorisation of the ultimate development, which does not satisfy the orderly development aims.
37Furthermore, cl 8 of the HLEP 1994 contains the zone objectives and cl 8 (3) requires council to be satisfied that any consent should be consistent with the zone objectives. I do not consider that the granting of consent to this 3 - lot subdivision on the basis submitted by the applicant will preserve and enhance the character and amenity of the established residential area in which the development is proposed. For the aforementioned reasons, the proposed subdivision should be refused in my assessment.