Does proposed subdivision of the Subject Site have characteristics similar to the prevailing subdivision pattern of lots fronting the same street, in terms of area, dimensions, shape and orientation?
- The provisions of Parts 3E.2.1 (Control C3) and 3E.2.2 of BBDCP (Control C2) (see above at [13(1)(a)(ii)] and [13(1)(b)(ii)]) require that the Applicant's proposed subdivision must have characteristics similar to the prevailing subdivision pattern of lots fronting the same street, in terms of area, dimensions, shape and orientation.
- The provisions of both Parts 3E.2.1 and 3E.2.2 include the following note in relation to the assessment of the prevailing subdivision pattern required under these Parts:
"Note: Council generally considers the 'prevailing subdivision pattern' to be the typical characteristic of up to ten allotments on either side of the subject site and corresponding number of allotments directly opposite the subject site. Properties located in the surrounding streets do not usually form part of the streetscape character and are therefore not taken into consideration when determining the prevailing subdivision pattern."
- The Parties' expert town planners, Ms Eberhard and Mr Hammoud, considered this matter within the joint expert report, and provided further oral evidence at the hearing in response to questions from the Parties.
- Within their joint expert report, the expert town planners had identified those properties, that, in their opinion, were relevant for the assessment of the prevailing subdivision pattern. The experts' nominated properties of relevance differed but included the following properties in common:
- The experts also both included the property at 31 to 33 Napoleon Street, a strata plan development adjacent to, and south, of the Subject Site, in their nominated properties of relevance, but:
1. Ms Eberhard noted that this property is one of two "unique developments" on Napoleon Street (the other being the townhouses at 22A, 22 and 24 Napoleon Street), and proposing that:
1. it is a multi-dwelling complex comprising seven units;
2. the strata units are not individually titled and the lot must be interpreted in its entirety, with area of 1189m2 and front width of 36.1m, rather than the strata entitlements defining lot size and other characteristics; and
3. it be removed from the nominated properties for the purposes of calculating average lot area and width;
1. Mr Hammoud opined that:
1. the seven units in the strata scheme should be included as individual lots for the purposes of Parts 3E.2.1 and 3E.2.2 of BBDCP;
2. the individual areas and widths of those lots, varying between 4.9m and 5.4m in width and 139m2 to 145m2 in area, should be included in any calculation of average lot dimensions as these relate to assessing the prevailing subdivision pattern and the conformity of the Applicant's proposed lots 1 and 2 with this pattern; and
3. if the seven lots were included in calculations of the average lots dimensions for the purposes of establishing a prevailing subdivision pattern, the average lot area would be around 312m2 and average street frontage would be around 9.9m
- The experts also differed in relation to the treatment of the properties at 22, 22A and 24 Napoleon Street as follows:
1. Ms Eberhard suggested that these lots should be excluded from any assessment of the prevailing subdivision pattern in the vicinity of the Subject Site because:
1. these were lots created under a previous instrument that were of a form discouraged, and described as not acceptable, under control C3 in Part 3E.2.1 and its related Figure 1 (see above at [13(1)(a)(ii)]);
2. the lots were inconsistent with the prevailing subdivision pattern, and did not provide an example of acceptable precedent for future subdivision of land;
1. Mr Hammoud was of the opinion that these lots should be included because, notwithstanding their origin, they were present in the streetscape and formed part of the prevailing subdivision pattern in the vicinity of the Subject Site, consistent with the note in BBDCP concerning properties to be included in any assessment of that pattern (see above (at [17]).
- Finally, the experts differed in their view concerning the treatment of the lots on the corner of Napoleon and Coward Streets, identified as 74 and 76 Coward Street, in relation to which:
1. Ms Eberhard included them in the lots she nominated for consideration in calculating average areas and front widths and establishing the prevailing subdivision pattern; and
2. Mr Hammoud opined that these lots should be excluded as their inclusion artificially increased the average areas and front widths of lots in relation to assessing the prevailing subdivision pattern.
- In their closing remarks, the Parties submitted as follows:
1. the Applicant said:
1. the term "prevailing" as applied to the subdivision pattern referred to in the controls implied that the relevant subdivision pattern was the current (ie existing) and predominant pattern of subdivision;
2. the strata lots at 31-33 Napoleon Street:
1. were present in the streetscape, can be seen, and their built form which can be seen from the street;
2. should be considered part of the subdivision pattern as the terms lot, allotment and property were interchangeable, notwithstanding the Applicant's agreement that the strata lots are not shown on the cadastre;
1. the Respondent said:
1. the term prevailing, while not defined in BBDCP, should be interpreted as that pattern which is typical, more common or most frequent, as observed in the 10 lots either side of the Subject Site and opposite;
2. consistent with the observation of Clay AC in Fuller v Inner West Council [2019] NSWLEC 1506 (at [69]) (Fuller) that "a subdivision pattern is just that - the pattern of lines on a plan" and "it is not where, and in what form, the buildings on the lot are", the built form of the strata units on 31 Napoleon Street should be ignored;
3. if the lot at 31 Napoleon Street were to be considered in relation to the prevailing subdivision pattern it should be noted as having a width to Napoleon Street of 36.43m;
4. noting the above points, the prevailing subdivision pattern in relation to the provisions of Parts 3E.2.1 and 3E.2.2 was best described as lots having frontage widths of around 12m;
5. the Applicant's proposed subdivision provided for two lots with widths of around 6m, which was half that of lots representative of the prevailing subdivision pattern in the vicinity of the Subject Site, and was even smaller than that of the lots at 22, 22A and 24 Napoleon Street which had frontage widths of around 8m but which Ms Eberhard had described as unique developments.
- Having considered the evidence of the experts and the submissions of the Parties in relation to this matter, I have concluded that:
1. consistent with the terms of the note that forms part of the controls in Part 3E.2.1 of BBDCP, and which state that properties located in the surrounding streets do not usually form part of the streetscape character and are therefore not taken into consideration when determining the prevailing subdivision pattern, I am satisfied that:
1. the properties at 74 and 76 Coward Street do not contribute to the prevailing subdivision pattern in the locality of the Subject Site; and
2. those properties should not form part of the assessment of the Proposed Development for the purposes of the controls in Parts 3E.2.1 and 3E.2.2 of BBDCP;
1. I agree with the Respondent, supported by the evidence of its expert, Ms Eberhard, and consistent with the findings of Clay AC in Fuller, that the development at 31 Napoleon Steet, should be considered a single lot for the purposes of controls in Parts 3E.2.1 and 3E.2.2, with an area of 1189m2 and a frontage of around 36m;
2. notwithstanding this, and recognising the unique nature of the development at 31 Napoleon Street in terms of the prevailing subdivision pattern, I do not consider that it contributes to the prevailing subdivision pattern in the locality of the Subject Site;
3. I also embrace the evidence of Ms Eberhard in relation to the lots at 22, 22A and 24 Napoleon Steet, that, consistent with the provisions of Part 3E.2.1 of BBDCP, and for reasons noted above (at [20(1)]) with which I agree, these are an undesirable form of subdivision as the resulting lots are not consistent with the prevailing subdivision pattern of the locality;
4. noting the above findings, I agree with the Respondent, that consistent with the evidence of its expert town planner, Ms Eberhard, and noting the characteristics of lots in the table above (at [19]), that the prevailing subdivision pattern is best described as lots having:
1. a width of around 12m; and
2. an area:
1. ranging between 296m2 and over 400m2;
2. with an average of around 390m2;
1. I also note that, even if I were to consider that the properties at 22, 22A, and 24 Napoleon Street as contributing to the prevailing subdivision pattern, and their dimensions were to contribute to the average dimensions of the prevailing subdivision pattern:
1. the average width of lots considered above in the table (at [19]) would still exceed 11.5m;
2. the average area of lots would be around 370m2; and
3. the dimensions of the Applicant's proposed lots 1 and 2 have:
1. a width of 6m which is approximately half of that represented by the prevailing subdivision pattern, and
2. an area of approximately 195m2 which is significantly smaller than the area of lots within the prevailing subdivision pattern which range between 260m2 to over 400m2, and with an average are of around 370m2.
1. based on the above points, and notwithstanding the east west orientation of the Applicant's proposed lots and their general rectangular configuration, I am satisfied that the Proposed Development is not consistent with the prevailing subdivision pattern of the area and so is not compliant with control C3 of Part 3E.2.1 and control C2 of Part 3E.2.2 of BBDCP.
- Notwithstanding this non-achievement of the controls in Parts 3E.2.1 and 3E.2.2, I am required under the provisions of s 4.15(3A) of the EP&A Act (see above at [9]) to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.
- The relevant objectives of controls C3 in Part 3E.2.1 and C2 in Part 3E.2.2 of BBDCP are in similar terms to the controls themselves, as follows:
1. Objective O2 For control C3 in Part 3E.2.1, which is:
"To ensure the proposed subdivision or amalgamation is consistent with the prevailing lot pattern including the area, dimensions, shape and orientation".
1. Objective O2 for control C2 in Part 3E.2.2, which is:
"To ensure the proposed subdivision is consistent the existing or prevailing subdivision pattern".
- As I have already concluded that the proposed subdivision does not have the similar characteristics to the prevailing subdivision pattern of lots fronting the same street, I am also able to conclude that the Proposed Development does not achieve objectives O2 of either Part 3E.2.1 or 3E.2.2, and so does not merit application of flexibility in relation to the controls as per s 4.15(3A) of the EP&A Act.