56The configuration of the lots in the context of the topography of the site relies on vehicular access across each of the allotments from Parkview Lane, and pedestrian access for the central two allotments across the adjoining allotments. The proposed subdivision does not comply with clause 3.3.4 (a) and (d) of DCP 2007, as it does not demonstrate that the these allotments have vehicular access to a public road, nor that a dwelling can be accommodated on the allotment in compliance with the controls in DCP 2007. We agree with the Council that the inter-dependencies of the allotments make their future development, beyond the economic life of the current proposal, difficult.
57We accept Mr Stray's evidence that the development proposed on the four individual lots results in breaches of the FSR (for lots 2 and 3), breaches of the setback controls and open space controls of DCP 2007.
58We 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.
59We agree with the Council that the circumstances of this case raise similar issues, and that a single management entity would enable the development to be maintained and appear as a single development.
60The applicant relies in this regard on the proposed positive covenants, amended during the course of the hearing to add the individual lots as benefited lots, for the obligations imposed. That amendment overcomes to some extent Mr Stray's concerns that it is unreasonable to impose on the Council alone the power to enforce those obligations. The obligations include obligations to comply with the consent, which would include the landscape plan and schedule of finishes.
61While we agree that the proposed positive covenants would assist, for example, in maintaining the finishes and landscaping approved in the Townhouses appeal, we are of the view that this is a cumbersome approach to management of inter-dependencies between dwellings. Management under the Strata Schemes Management Act 1996 provides for agreements to be made and enforced without requiring the Council to intercede.
62Retaining a single allotment for the townhouses proposal would allow for the future development of the site beyond the economic life of the current proposal. That is a preferable outcome than one where the subdivision pattern would be a legacy extending beyond the life of the immediate built form: Sindesi Properties Pty Ltd v Campbelltown City Council [2007] NSWLEC 436 at [54]. If approved, lots 2 and 3 would be significantly smaller than the sites in the locality, whether oriented to Sydney Road or on an east west basis, and significantly smaller than the lot sizes contemplated in the DCP 2007. The culmination of the breaches of the applicable controls, and the inter-dependencies on adjoining lots for access, demonstrates that the small central allotments are unsuitable for development independent of the adjoining allotments, and on that basis the Subdivision application should be refused.