Threlfo v Inner West Council

The Proposal

1. The development application seeks approval to subdivide the lot into two Torrens Title allotments.
2. The lots proposed to be created are: Lot 11 Area: 216.4 square metres Width: 10.61m frontage Depth: 14.28m-16.245m Fronts Hercules Street Lot 12 Area: 193.3 square metres Width: 14.25m frontage to Beach Road Depth: 13.54m Fronts Beach Road
3. The proposed subdivision pattern for Lot 11 and 12 is shown in Figure 1 and marked in red.

Statutory Context

1. At the time of the appeal the Marrickville Local Environmental Plan 2011 (MLEP) was the relevant environmental planning instrument for assessment of the DA. The Site is zoned R2 Low Density Residential pursuant to the MLEP.
2. Subsequently, following the hearing, the Inner West Local Environmental Plan 2022 (IWLEP 2022) was gazetted on 23 August 2022. Clause 1.8A of IWLEP 2022 contains a savings provision which states that if a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. In any case, the IWLEP 2022 maintains the current zoning of the property as R2 Low Density Residential and makes no real changes regarding subdivision (cl 2.6) or minimum lot size.
3. Development consent is required for subdivision by virtue of cl 2.6 of MLEP (also cl 2.6 IWLEP 2022). The MLEP does not have a minimum lot size provision.
4. MLEP has a Floor Space Ratio (FSR) control in cl 4.4 which provides for decreasing maximum FSR as the areas of lots increase. The maximum FSR for the site is 0.6:1. The existing dual occupancy development on the site meets this FSR of 0.6:1. However, once the lots are subdivided, under cl 4.4(2A) of MLEP the proposed Lots 11 and 12 would be subject to a maximum permissible FSR of 0.9:1 on each of the resulting lots.
5. There is the usual provision requiring the consent authority to have regard to the objectives of the zone (cl 2.3 of the MLEP) but Council does not assert that the proposed subdivision in inconsistent with any of the objectives of the R2 zone.
6. As the parties correctly pointed out, the deliberate absence of a minimum lot size control in the MLEP means that the Council has left it to the planning controls and objectives of the DCP to manage and control subdivision. Like in the MLEP, there is no minimum lot size in the DCP, but rather there are objectives and controls which are designed to ensure that proposed subdivisions are appropriate in their particular context.
7. It is well settled that a development control plan is a focal point for consideration (Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 ("Zhang")) and the decision maker must not depart from the policy evident in the development control plan (Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226).
8. A development control plan is not an environmental planning instrument and so must be approached having regard to its controls and objectives , but with a degree of flexibility (see s 4.15(3A) of the EPA Act and Zhang).
9. Part 1 of the DCP deals with "Statutory Information" including the structure and application of the DCP. At clause 1.1.11, the DCP provides that before granting consent "Council [now the Court] must consider: • All applicable requirements of MLEP 2011 (now Inner West LEP 2022); • The objectives of this DCP; • Compliance with the generic provisions (objectives and controls) contained in Part 2 of this DCP; • Compliance with the relevant objectives and controls in Parts 3 to 8 of this DCP; and • Compliance with any precinct or site specific controls in Part 9 of this DCP."
10. Clause 1.1.11 of the DCP also provides that compliance with a development control does not necessarily mean that a development is appropriate in its particular circumstances. And further, that a development may be appropriate notwithstanding non-compliance with a control: "The controls in this DCP may not normally be varied. However, if an applicant is able to clearly demonstrate that a particular control is unreasonable or unnecessary in the circumstances and that the objective of the control is satisfied, Council may consider waiving or varying the control."
11. Clause 1.1.13 of the DCP sets out a procedure for an applicant who seeks to vary a control, and states: "This DCP relies upon the satisfaction of objectives and compliance with development controls and best practice guidelines to shape development outcomes. It aims to allow flexibility in the application of such development controls where strict application of the controls is unreasonable or unnecessary."
12. In this case, the Applicant seeks to vary two controls (floor space ratio and site cover) in respect to the existing dual occupancy dwellings after the proposed subdivision. The Applicant does not seek to vary any control in relation to the subdivision itself, but rather asserts consistency with the DCP.
13. The provisions relating to subdivision are in Part 3 of the DCP, 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 provided the 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."
14. The Objectives of 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."
15. 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, if applicable."
16. In relation to the objectives and controls for subdivision, it is my view that the phrases in the Objectives and Controls: prevailing cadastral character (O3), predominant subdivision pattern (O5) and prevailing cadastral pattern (C5) should be taken to have the same meaning.
17. The actual control is in the first part of C5 - the proposed subdivision must have characteristics similar to the prevailing cadastral pattern of the Lots fronting the same street. The characteristics which give rise to the cadastral pattern are area, dimensions, shape and orientation. The second part of C5 directs the consent authority to the area from which the determination of the prevailing cadastral pattern is made - which is up to ten lots on both sides of the subject site and 20 or so lots on the other side of the street. The wording in MDCP has flexibility using terms such as "generally", "up to" and "if applicable" which recognises that the prevailing cadastral pattern could vary on a site by site basis.
18. The phrases in MDCP, cadastral character, subdivision pattern and cadastral pattern, together with the identified characteristics of area, dimensions, shape and orientation appear to direct attention to the layout of lots created by the subdivisions as if read on a plan. The existing layouts of lots create a pattern against which the proposal is to be assessed. This requirement of the DCP is to ensure that a proposed lot is reflective of the predominant pattern without consideration of built form (such as FSR or site cover), existing or proposed.
19. In the strategic context, the Site is within the Dulwich Hill Station North (Precinct 18) planning precinct in Part 9 of the DCP. The existing character in 9.18.1 states that the land=use pattern of the precincts consists mainly of low density residential streets and the subdivision pattern is influenced by the precinct's location abutting the rail corridor. The desired future character in 9.18.2 of the DCP is (in relation to subdivision) to protect prevailing subdivision patterns. Whilst it was appropriate for the Council to draw the Court's attention to the provisions of Part 9 of the DCP, in the end no submission was made and nothing turned on it.

The issues

1. In summary, the issues raised by the Council are: 1. Whether the proposed subdivision is consistent with and has characteristics similar to the prevailing subdivision (cadastral) pattern of the immediate locality (Contentions 1 and 2); 2. Whether the subdivision should be approved in circumstances where the proposed lots will allow an increase in the FSR (to 0.9:1 and 1:1), resulting in development that is not consistent with the predominantly low-density residential development in the immediate locality on the southern side of Hercules St and the eastern and western side of Beach Road. (Contention 3)

The Evidence

1. The planning evidence was given by Mr Threlfo for the Applicant and Mr Chapman for the Council.
2. A comprehensive joint report was provided clearly setting out the positions of the experts (Exhibit 2).

Issue 1 - Consideration of consistency with prevailing cadastral pattern

1. Mr Chapman's evidence was that the existing Site at 7 Hercules Street is currently consistent with the pattern of the allotments at 7-23 Hercules Street, noting that the allotments have a north-south orientation and a lot depth of approximately 30m. However, he was of the view that the proposed subdivision will split the existing lot into two lots with a depth of 14.28m-16.24m, resulting in allotments that are inconsistent with the cadastral pattern on the southern side of Hercules Street from its intersection with Beach Road.
2. Mr Chapman also pointed out that the allotments fronting Beach Road have an east west orientation and a depth ranging from 36m to 43m for those properties between Hercules Street and Macarthur Parade. The proposed subdivision will result in Lot 12 having a frontage to Beach Road and a depth of 13.54m, which is inconsistent with the properties on the western side of Beach Road between Macarthur Parade and Hercules Street.
3. Mr Threlfo was of the view that Objectives 03 and 05 and Control C5 of DCP are of limited relevance as these provisions are based on the underlying assumption that subdivision of land is followed by development. Mr Threlfo opined that in the subject circumstance the dual occupancy development on the Site has already been approved and constructed and Council has already approved a physical division of the land. Mr Threlfo provided evidence that as development for the construction of two dwellings have already been approved, the provisions of C5 regarding the prevailing cadastral pattern should be considered with flexibility because the pattern of development has already been implemented by Council's approval to construct two dwellings. The issue of built form is considered further in [54] to [58] below.
4. I prefer and accept Mr Chapman's evidence that it is necessary to identify the prevailing cadastre pattern in the vicinity of the Site as this approach is consistent with the approach specified by MDCP. It is essentially within the immediate surrounds of the site. I also accept Mr Chapman's evidence that the proposed lots 11 and 12 are inconsistent with the prevailing cadastral pattern and the characteristics of the new lots in both site area, frontage and depth differ significantly from the surrounding lots in Beach Road and Hercules Street.
5. Notwithstanding Mr Threlfo's view regarding the relevance of the prevailing subdivision pattern, he has carried out a comprehensive analysis of the surrounding lots which is presented in Figure 2 and the Tables 1 and 2 below. Figure 2 - Block Plan - Extract from Joint Expert Report

Table 1 Beach Road Subdivision Analysis - Extract from Joint Expert Report

Table 2 - Hercules Street Subdivision Analysis - Extract from Joint Report

1. From the analysis in the above Tables 1 and 2, Mr Threlfo provided evidence in the Joint Expert Report (Exhibit 2) that Proposed Lot 11 will face Hercules Street and have a frontage of 10.61m, which in his opinion is consistent with the prevailing frontage of other lots in the vicinity. Mr Threlfo opined that in Beach Road there are two frontage patterns. There are 11 Lots with a frontage in the range of 5.5-7m and 8 lots with a frontage of 9.8-12.67m. He says that proposed Lot 12, with a frontage of 14.25m to Beach Road is "reasonably compatible with these 8 wider lots". Mr Threlfo also was of the view that the frontage of a lot is the most significant factor in determining consistency with the subdivision pattern and the site area is a less significant consideration because it has limited public presentation.
2. Mr Chapman was of the alternate view, noting that the proposed subdivision does not meet control C5 in MDCP which states that the proposed subdivision "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, if applicable."
3. Mr Chapman provided evidence that the lots on the southern side of Hercules Street between 7 and 23 Hercules Street have a site area that ranges between 202m2 - 311m2. He noted that 21 and 23 Hercules Street are smaller allotments and the allotments between 9 - 19 Hercules Street (the six properties immediately to the west of the subject site) range between 300m2 - 311m2. Mr Chapman further noted that the proposed allotments, Lot 11 (216.4m2) and Lot 12 (193.3m2) are 83.6m2 to 117.7m2 (27% - 37%) smaller than the lots within the immediate locality.
4. Mr Chapman also noted in the Joint Report (Exhibit 2) that Lot 12, fronting Beach Road, is not consistent with the area of the lots at 2 - 8 Beach Road being the four properties that adjoin the southern boundary of the subject site. The allotments adjoining the southern boundary - Beach Road have a consistent east-west orientation and the lots range between 304m2 - 328m2. Mr Chapman was of the view that the proposed lots are in the order of 110.4m2 -134.7m2 (36% - 41%) smaller than the four allotments adjoining the southern boundary of the subject site and proposed Lot 12 fronting Beach Road has a 14.25 metre frontage, and this is inconsistent with the frontage of the allotments fronting Beach Road ranging from 6 metres to 7 metres.
5. Mr Chapman summarises his views in the Joint Expert Report (Exhibit 2). He notes that the proposed lots do not have characteristics similar to the prevailing cadastral pattern of the lots fronting Hercules Street between 9 - 19 Hercules Street or Beach Road between 2 - 8 Beach Road in terms of the area, dimension, shape and orientation of the proposed allotments. Further, Mr Chapman notes that the proposed lots are not consistent with the prevailing cadastral pattern of the allotments in the immediate locality being the eight (8) properties to the west of the subject site (9-11 Hercules Street) and the four (4) properties in the immediate locality on Beach Road adjoining the southern boundary of the subject site.
6. Mr Chapman also notes that the lots on the opposite side (northern side) of Hercules Street are in the R1 General Residential Zone and present a different characteristic than the southern side of Hercules Street being part of the R2 Low Density zone. The properties opposite the subject site, eastern side of Beach Road, have a site area of ranging from 278m2 - 304m2 and it is acknowledged that 17 and 19 Beach Road have areas of 171m2 and 182m2. While these allotments are smaller than the prevailing cadastral pattern defined by 9-19 Hercules Street and 2-8 Beach Road, the lots have a consistent orientation (east-west) to Beach Road. In Mr Chapman's view, the proposed subdivision that splits the existing Torrens Title allotment is not consistent with the orientation of the allotments in the immediate locality
7. I generally agree with the analysis and opinion of Mr Chapman for the reasons stated below in [47-53].
8. The first step in assessing the proposed subdivision is to determine the characteristics of prevailing cadastral pattern of the lots fronting the same street in terms of area, dimensions, shape and orientation. In this case I have considered the lots in the vicinity of the subject lot fronting both Beach Road and Hercules Street to determine the characteristics of the prevailing cadastral pattern.
9. I do not accept the argument of Mr Threlfo that the frontage of a lot is the most significant factor in determining the consistency with the subdivision pattern. Whilst the frontage is the most visible from the street, all of the characteristics of the lot - area, depth, frontage and orientation make up the prevailing subdivision pattern of an area. It is against those characteristics that the proposed subdivision is then tested by asking the question - do the proposed lots have similar characteristics and therefore are consistent with the prevailing pattern of subdivision.
10. The current orientation of the un-subdivided 7 Hercules is north-south. By splitting it in half this orientation changes with one of the proposed lots now fronting Beach Road and orientated east-west and I concur with Mr Chapman's evidence in this regard.
11. The shape of a majority of the lots in both Hercules Street and Beach Road is generally rectangular, with a few exceptions. The new proposed lots will be roughly (although not exactly) square in shape which is inconsistent with the prevailing rectangular shaped lots, which are generally much deeper.
12. The depth of the proposed lots 11 and 12 are out of character, being much shorter in depth than what prevails. For example, 7-23 Hercules Street, have a north-south orientation and a lot depth of approximately 30m. The proposed subdivision will split the existing allotment into two lots with proposed Lot 11 having a depth of 14.28m-16.24m, resulting in allotments that are inconsistent with the cadastral pattern on the southern side of Hercules Street from its intersection with Beach Road. The allotments fronting Beach Road have an east-west orientation and a depth ranging from 36m to 43m for those properties between Hercules Street and Macarthur Parade, compared to a depth of 13.54m for proposed Lot 12, which is inconsistent with the properties on the western side of Beach Road between Macarthur Parade and Hercules Street.
13. The dimensions and area of a lot are clearly related - the area is a function of the dimensions. I accept the evidence of Mr Chapman that the prevailing dimensions (both frontage and depth) and site area of existing allotments in the vicinity of the site differ significantly from the proposed lots and their characteristics are, in my view, out of kilter with the prevailing subdivision pattern.
14. I am persuaded from the analysis provided by Mr Chapman and illustrated in the Block Plan - Figure 2, that the proposed subdivision does not reflect or reinforce the existing subdivision pattern because proposed lots 11 and 12 are significantly smaller in area, different in shape and shorter in depth, than those characteristics of the prevailing existing subdivision pattern.

Issue 2 - Consideration of Built Form

1. I now turn to Mr Threlfo's evidence that consideration of the prevailing subdivision pattern as required by C5 in DCP is of limited relevance because Council has already approved a physical division of the land and buildings and that approval has been implemented and the dual occupancy constructed and each dwelling has its own services and private open space.
2. From Mr Threlfo's evidence, the question arises as to whether built form is relevant to the determination of the prevailing cadastral pattern. 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 am of the view that it is not relevant for the determination of the subdivision pattern.
3. 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.
4. 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).
5. 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."

Conclusion

1. 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.
2. The area, dimensions and shape of the proposed subdivision is inconsistent with the prevailing cadastral pattern and so the application must fail. It follows that the appeal must be dismissed, and development consent refused. Had the subdivision been consistent with the prevailing cadastral pattern, then I would not have refused the application on the grounds of excessive FSR/site cover.

Orders

1. The Court orders that: 1. The appeal is dismissed. 2. Development Application DA 2021/0949 for the subdivision of Lot 1 DP 1156430 known as 7 Hercules Street, Dulwich Hill into two Torrens title lots is refused. 3. All Exhibits, except for Exhibits 1 and 2, are returned. ………………. L Sheridan Acting Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2022