38 The property in Empire Lane which was cited, that is Nos. 1 to 9 where there is a more recent townhouse development that had relied upon existing use rights cannot be equated with the subdivision of the subject land as this did not alter the subdivision pattern and a subdivision pattern is a fundamental, underlying, prevailing pattern within the area and there are no properties in the vicinity of the subject site or even in a broader context have only rear lane access for a residential property. Whilst the DCP does say that it does not prevent or prohibit such development at the same time a common sense interpretation of the DCP must be taken in terms of what the prevailing subdivision pattern is. Yes, there is a mixture of lot sizes but the prevailing subdivision pattern still does not provide for lots with their only access, from a laneway whether it be vehicle or pedestrian access.
39 During the proceedings the Court raised the issue of the interface with the existing box factory and the planners were given the opportunity to respond to the Court's concern in this regard. The Court invited Mr Pickles to advise, either before hearing from the planners, whether an adjournment was sought to allow the applicant to address this issue, given the Court had raised it and it was not identified directly as an issue in the proceedings. The planners, and I accept their opinion, consider that the interface with the box factory would not warrant refusal of the application in itself. They have advised that due to the 25 ANEF affectation the dwelling would have to be designed for noise insulation purposes and therefore in terms of the box factory noise would not be a concern. They both said that it certainly does not provide a good outlook for dwellings but this is not a reason for refusal of the application and accept this.