Peric v Bayside Council

[2021] NSWLEC 1128

Land and Environment Court

New South Wales

Medium Neutral Citation:

Peric v Bayside Council [2021] NSWLEC 1128

Hearing dates:

1 December 2020

Date of orders:

15 March 2021

Decision date:

15 March 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) The Development Application No 2020/28 seeking development consent for the demolition of all existing structures, Torrens title subdivision into two allotments and construction of two semi-detached dwelling houses at 192 Bay Street Pagewood, NSW legally identified as Lot 282 in DP 12533 is refused.

(3) The exhibits are returned except for Exhibits H and 6.

Catchwords:

DEVELOPMENT APPEAL – subdivision – character – semi-detached dwelling – orders

Legislation Cited:

Botany Bay Local Environmental Plan 2013

Draft Bayside Local Environmental Plan 2020

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy 55—Remediation of Land

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Infrastructure) 2007

Cases Cited:

Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Texts Cited:

Botany Bay Development Control Plan 2013

Category:

Principal judgment

Parties:

Djura Peric (First Applicant)
Vida Peric (Second Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicants)
J Cole (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicants)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2020/101142

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) being an Appeal against the deemed refusal of Development Application No 2020/28 seeking development consent for the demolition of all existing structures, Torrens title subdivision into two allotments and construction of two semi-detached dwelling houses (the Proposed Development) at 192 Bay Street Pagewood, NSW legally identified as Lot 282 in DP 12533 (the Site).

2. This case is about whether the proposed subdivision of the Site is inconsistent with the existing and future desired character (Streetscape) and with the subdivision pattern of the area. The Respondent contends that the Proposed Development is not consistent with the character and subdivision pattern whereas the Applicant seeks to rely on the desired future character statement in the Botany Bay Development Control Plan 2013 (BBDCP) to support the argument that the fact that this Proposed Development may be the first to propose a subdivision in the area should not be a sufficient reason to warrant refusal to the Proposed Development. It is agreed between the parties that the Botany Bay Local Environmental Plan 2013 (BBLEP) does not prescribe a minimum subdivision lot size and that the Court is required to assess the Proposed Development in accordance with the controls in the BBDCP.

3. The Respondent submits that there is a fundamental disconnect between the parties in this case in particular as to what the BBDCP is saying, what it is seeking to achieve and the compliance of the Proposed Development with its provisions (Tcpt, 1 December 2020, p 3(25)-(45))). Part 3E of the BBDCP deals with Subdivision and Amalgamation and these controls apply to all land in Botany Bay and needs to be read in conjunction with the other Parts of the BBDCP including Part 8 Character Precincts which at Part 8.3 deals with the Pagewood Character Precinct (Part 3E.1.1 BBDCP).

4. The Respondent contends that the desired future character statement at Part 8.3 of the BBDCP must be read in the context of the whole of BBDCP (Tcpt, 1 December 2020, p 65) and that to read the Pagewood character statement in isolation or to give it, or part of it, primacy over the BBDCP results in a misapplication of the BBDCP.

5. There is an issue of permissibility raised by the Respondent in the context of the BBLEP definition of a ‘semi-detached dwelling’ which is agreed to be development that is permissible in this R2 Low Density Residential zone if “each dwelling is on its own lot of land”. The Respondent submits that the approval sought for Torrens title subdivision is critical to the success of the Proposed Development. The Respondent submits that it is important to note that an application for approval could be sought to erect this development as a dual occupancy on a single lot of land then afterwards seek to subdivide that land however, as a result of dual occupancy not being a permissible development in this R2 Low Density Residential Zone:

“here you have to get through subdivision to be able to then erect a semi-detached house on either allotment […] there is a primacy in relation to looking at applying the controls which looks to the subdivision controls in the DCP.”

(Tcpt, 1 December 2020, p 65(1)-(10))

6. I will deal with this in more detail further in the judgment.

7. The hearing commenced with an on-site inspection and a view of surrounding areas within the Pagewood Precinct.

8. The Applicant sought and was granted leave to amend the Development Application and rely on amended plans following a Notice of Motion on 30 July 2020. An Amended Statement of Facts and Contentions (ASOFAC) was filed on 26 August 2020 (Exhibit 6) and details the Proposed Development following demolition to consist of:

1. Torrens title subdivision into two allotments with each proposed allotment comprising an area of 269.9m² and lot width of 6.33m; and

2. Construction of two semi-detached part-two part-three storey 4 bedroom dwelling houses with basement parking, pitched roof form, including steps up to the front main entrance of each dwelling.

9. It is the Respondent’s case that without subdivision the Proposed Development (which would be a dual occupancy if consent for subdivision were not sought) is otherwise prohibited and the case centres around subdivision and character. The Respondent relies on the Pagewood Character Precinct statement in Part 8 of the BBDCP and contends that the “general and consistent character of the area is predominantly single storey cottage style dwellings on lots averaging 557m² in area and 13.5m in lot width with single driveways and substantial landscaped front yards.” (ASOFAC par (e) on page 5) and “the subdivision pattern in the area is consistent.” (ASOFAC par (h) on page 5). The Respondent’s sole contention is that the Proposed Development is “inconsistent with the existing established and future desired character and subdivision pattern of the area.” (page 10 ASOFAC). It is relevant to note that there are 20 particulars relating to this contention including reference to Part 3E of BBDCP titled “Torren Title Subdivision and Amalgamation” (referred at [3] in this judgment).

10. I reproduce below an image prepared by the town planning expert for the Respondent included in the Joint Expert Report (JER) prepared by Fiona Prodromou, Town Planner for the Respondent and James Lidis, Town Planner for the Applicant, filed 10 November 2020 (Exhibit 4).

11. Mr Lidis relies on the following different image in the Joint Expert Report to illustrate his opinion that “the proposal has the appearance of a single dwelling house in the streetscape and its overall height, bulk and scale is consistent and compatible with the adjoining three single storey dwelling development at 190 Bay Street.” (par 4.45 of JER)

12. I note the difference between the images relied on by the two Town Planners. In order to discern which image is accurate I have referred to the amended plans relied on by the Applicant in Exhibit A and I find that the image prepared by Ms Prodromou is consistent with the Applicant’s amended Proposed Development Drawing LEC 2.2 Issue A. Notwithstanding this finding, I do not agree that the Proposed Development presents as a single dwelling as asserted by Mr Lidis for the reason that there are clearly 2 front doors, 2 garage doors and 2 driveways all of which indicate 2 separate and distinct residential dwellings.

13. At page 11 of the ASOFAC the Respondent contends that “The proposed subdivision of the site, will result in two narrow symmetrical allotments, 6.33m in width and 269.9m² in area, which are inconsistent with the existing prevailing subdivision pattern” and includes Figure 1 derived from Part 8.3.2- Desired Future Character of BBDCP. (Particular f. of ASOFAC). I include Figure 1 from the ASOFAC which is also found at folio 164 in the Respondent’s Bundle of Documents and is extracted from Part 3E of BBDCP “Torren Title Subdivision and Amalgamation”.

14. The Respondent submits that this is an important precedent case (Tcpt, 1 December 2020, p 6) and at page 13 of the ASOFAC the Respondent contends that “The subdivision of the site as proposed will establish an undesirable precedent in an area where allotments widths and overall areas remain primarily intact, as per the original subdivision pattern.” (particular l.) And at particulars m. and n. of the Contention, the ASOFAC provides as follows:

“The proposal will have an unacceptable visual impact on the desired future character of the area, streetscape and context by virtue of the design of the development with its twin driveways, twin garages, twin stairs and minimal landscaping forward of the building line […] and give a clear appearance of two large semi-detached dwellings, in lieu of a detached freestanding dwelling form with a single driveway and substantial landscaping within the front setback, which is characteristic within context of the site.”

15. At the outset, the Respondent submits that there is a complete disconnect between the parties as to what the BBDCP is saying and what the BBDCP is seeking to achieve. The Respondent submits that “the DCP actually goes and drills down into individual areas of Pagewood character precinct.” (Tcpt, 1 December 2020, p 3(45)). However, in submissions in reply, the Applicant made submissions to the effect that there are four areas within the Pagewood Precinct in Part 8 of the BBDCP being the following areas:

1. the H3 area within which the Site is located and which has ‘the encouragement of detached/attached dwellings’,

2. the Myrtle and Bay Street Area which ‘encourages townhouses’,

3. the Banks Avenue area where there is encouragement of medium density development and

4. the ‘remaining area’.

16. It is the Applicant’s case that any reference to the ‘remaining area’ or the ‘remaining residential land’ in the BBDCP does not include the Site.

17. The Applicant’s argument, made during submissions in reply, that there are four areas was objected to by the Respondent on the basis of lack of procedural fairness and the Respondent submits that the Applicant ‘could have led any of this evidence at any time in the case, and to come at it in submissions in reply is probably one of the most outrageous uses or abuses of submissions in reply that I have seen.” (Tcpt, 1 December 2020, p 78(28)). The Applicant relied on the evidence of Mr Prodromou that the whole of the BBDCP needs to be considered and that he is relying on parts of the BBDCP, which he notes are not included in the Respondent’s bundle of documents. I note the context of the Applicant’s submission including the fact that neither of the Experts were given an opportunity to comment. The Respondent made a brief response to the effect that the Applicant’s argument is erroneous in that the effect or result of the Applicant’s argument would be that all the other controls would be ignored and that only one control applies to the Site. I advised the parties that I would treat the Applicant’s submission as an interpretation of section 8.3.2 Desired Future Character in the BBDCP and also, I would consider the context that this interpretation was not put to the Experts for their expert opinion.

18. Having considered the evidence and submissions, I am of the view that the ‘four areas’ argument does not assist the Court in relation to the approval sought for the proposed subdivision. There is no evidence from either of the expert witnesses regarding the ‘four areas’. I also give reasons below which are to the effect that consideration of the Desired Future Character is a part of the assessment (control C1 of Part 3E8.2.1 and C1 of Part 3E.8.2.2) and that compliance with the other controls in Part 3E also need to be achieved such as controls C3 of Part 3E.8.2.1 and C2 of Part 3E.8.2.2 which requires that the proposed subdivision have similar characteristics to the prevailing subdivision pattern. Accordingly, the ‘four areas’ argument does not address nor further the evidence as to whether the other subdivision controls are complied with.

19. The arguments put by the parties was a little confused at times during the hearing and I agree that there was a disconnect between the parties as to the interpretation and effect of the BBDCP on this Proposed Development. I will now deal with the existing character of the area, the desired future character of the area and whether the Proposed Development complies with the subdivisions controls of the BBDCP.

What is the existing established character of the area? What is the subdivision pattern?

20. Mr Lidis does not agree with the description of The Locality as set out by the Respondent in the ASOFAC in pars e), f) and h) on page 5. As this case revolves around the description of the locality and whether the Proposed Development is inconsistent with the existing character and desired future character, I set out the contested description of the locality from the ASOFAC in full below:

“e)   The general and consistent character of the area is predominantly single storey cottage style dwellings on lots averaging 557 sqm in area and 13.5 m in lot width with single driveways and substantial landscaped front yards.

f)   Front setbacks to such dwellings referred to in (e) above are fairly consistent. The street is wide and tree lined. Overall a pleasant, relatively consistent streetscape is reflected albeit with slight variation in house design.

h)   The subdivision pattern in the area is consistent.”

21. In the Joint Expert Report at [3.2] Mr Lidis’ opinion is that “there is a range of lot sizes and configurations in the locality as shown in the map extract below (subject site edge red), including two existing smaller lot subdivisions opposite and to the west of the site at 1 Dalley Avenue/297 Bay Street and 184 and 184A Bay Street.”

22. Ms Prodromou at [3.5] of the Joint Expert Report “acknowledges that there are limited variations to lot widths, shapes and areas, in proximity to the site, however these are not indicative of the ‘prevailing’ subdivision pattern and are consequential as a result of past planning controls and circumstances ie secondary street access.”

23. I accept the description and evidence of Ms Prodromou following hearing the evidence, reviewing the Joint Expert Report and having seen the Site and the larger Pagewood Precinct. Ms Prodromou’s evidence is also consistent with Part 8 of BBDCP (folio 380 of Respondent’s Bundle of Documents) where at Part 8.3.1 titled “Existing Local Character” the second paragraph reads as follows:

“The Pagewood Precinct contains a significant portion of the LGA’s low density residential development, being one and two storey detached dwelling houses of varying architectural styles and periods. Allotments are in excess of 400m2 with wide frontages. The Pagewood Precinct also contains a number of aged residential flats of two to three storeys and new terrace house developments.”

24. I have established the existing character of the area and now it is necessary to consider what is the desired future character of the area as this is a fundamental and key element of the case and requires a more detailed and complex consideration of the evidence and submissions.

What are the subdivision controls?

25. As I mentioned at [19] above, the parties remain in dispute on the interpretation of and application of the Pagewood Character Precinct in Part 8 of the BBDCP to the assessment of the Proposed Development. The interpretation of and application of the BBDCP as a whole is relevant because the BBLEP does not provide a minimum subdivision lot size (refer to [2] in this judgment). It follows that the assessment of the Proposed Development requires consideration by the consent authority, in this case the Court, of the relevant controls in the BBDCP.

26. In written submissions, the Applicant identifies Part 1.9 of the BBDCP which provides as follows:

“1.9   This DCP contains character statements, objectives and controls that should be complied with. Consistent application of the provisions of the DCP will be given high priority by Council.”

27. The Applicant then submits that Part 1.9 suggests that “the precinct area controls prevail over the more general controls.” (par 10, Applicant written submissions). I do not accept that the precinct controls override or exclude the application of the general controls of the BBDCP and I give my reasons below.

28. The starting point for the assessment of this Proposed Development which seeks consent for Torrens title subdivision is consideration of Part 3E of the BBDCP which provides for the subdivision and amalgamation of land in Botany Bay. The Respondent referred the Court to Objectives O1 and O7 of Part 3E.1.2 – General Objectives which provide as follows:

“O1   To ensure that subdivision and amalgamation and any associated development is consistent with the Desired Future Character of the area through consistent lot size, shape, orientation and housing density;

[…]

O7   To ensure that subdivision and amalgamation result in lots which can achieve compliance with all other relevant DCP controls”

29. The Respondent, in opening, noted that the Proposed Development seeks to halve the size of the existing lot and in relation to shape paraphrased the Applicant’s position that “they are rectangles, and therefore a rectangle is the shape and therefore it is okay [but] we say that that is not as simple as that, it has got to be, shape is your length and your breadth, not just the depth, and whether it is rectangle or not […] what is proposed here is significantly out of character with what we see in the area.” (Tcpt, 1 December 2020, p 11(45)-(50))

30. Further, the objectives O1 and O2 in Part 3E.2.1 – General Torrens title Subdivision and Amalgamation provide as follows:

“O1   To ensure that proposed subdivision or amalgamation is consistent with the Desired Future Character of the area;

O2   To ensure the proposed subdivision or amalgamation is consistent with the prevailing lot pattern including the area, dimensions, shape and orientation.”

31. The relevant control relied on by the Respondent in Part 3E.2.1 is Control C3 which provides as follows:

“C3   Proposed subdivision or amalgamation must have characteristics similar to the prevailing subdivision pattern of lots fronting the same street, in terms of area; dimensions, shape and orientation (refer to Fig 1).

Note:   Council generally considers the ‘prevailing subdivision pattern’ to be the typical characteristics of up to ten allotments on either side of the subject site and correspondent number of allotments 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.”

32. Finally, in relation specifically to residential Torrens title subdivision, Part 3E.2.2 has the following two objectives:

“O1    To ensure that the proposed subdivision is consistent with the Desired Future Character of the area;

O2   To ensure the proposed subdivision is consistent the existing prevailing subdivision pattern;”

33. The relevant controls for residential Torrens title subdivision in Part 3E.2.2 are Controls C1 and C2 which provide as follows:

“C1   Development Applications shall demonstrate that the proposed subdivision or amalgamation is consistent with the Desired Future Character of the area (refer to relevant sections in Part 8 – Character Precincts . . .)

C2   Proposed subdivision or amalgamation must have characteristics similar to the prevailing subdivision pattern of lots fronting the same street, in terms of area, dimensions, shape and orientation.

Note:   Council generally considers the ‘prevailing subdivision pattern’ to be the typical characteristics of up to ten allotments on either side of the subject site and correspondent number of allotments 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.”

34. I note that both Part 3E.8.2.1 and Part 3E.8.2.2 have a control C1 in identical terms as follows:

“C1 Development Applications shall demonstrate that the proposed subdivision or amalgamation is consistent with the Desired Future Character of the area (refer to relevant sections in Part 8 – Character Precincts […])”

35. The parties agree that the Torrens title subdivision objectives and controls in Part 3E of the BBDCP require that Development Application demonstrate that the subdivision of the Proposed Development is consistent with the desired future character of the area and that the desired future character is addressed in part 8.3.2 of the BBDCP.

What is the Desired Future Character of the area?

36. I reproduce an extract of Part 8.3.2 of the BBDCP below as there is much emphasis and argument between the parties regarding the fifth bullet point under the hearing “Function and Diversity” and the second bullet point under the heading “Form, Massing, Scale and Streetscape”.

37. The Desired Future Character statement in the BBDCP continues for another 3 pages and includes headings like Setbacks, Landscaping, Solar Access and Subdivision.

38. The Respondent contends that the Proposed Development is contrary to Part 8.3.2 – Desired Future Character which establishes the desired future character for the area. The Applicant’s case relies heavily on the Desired Future Character as set out in the BBDCP, in particular the apparent inconsistency between the 5^th bullet point under the heading “Function and Diversity” and the 2^nd bullet point under the heading “Form, Massing, Scale and Streetscape” as well as relying on the Subdivision subsection which appears 2 pages later in part 8.3.2 extracted below as follows:

“Subdivision

Retain and preserve the rectilinear grid pattern within the precinct (with the exception of land owned by the Department of Housing.)”

39. The Respondent submits that this statement in Part 8.3.2 does not ‘trump’ the general subdivision controls in Part 3E of the BBDCP. The Respondent went into some significant detail in opening and went through the various headings in Part 8.3.2 and addressed the Court on whether and how the Proposed Development complied with these.

40. The Applicant also focussed on Part 8.3.2 and submits that the Special Height Area H3, in which the Site is located, is an area that is marked for change and this Proposed Development may be the first. The Applicant submits that the planning principle in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 makes it quite clear that development where compatibility is desirable, in situations where the planning controls envisage a change in character, the compatibility with the future character is more appropriate than with the existing and “that is a planning principle that applies all the more with more force here, because the council’s DCP controls specifically require you to have regard to the desired future character.” (Tcpt, 1 December 2020, p 77(45)). The relevant statement in Project Venture appears at [23] as follows:

“23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them.”

41. Mr Lidis considers the Special Height Area H3 at par [4.46] of the JER and states that:

“The scale of the proposed building is consistent with Council’s controls for Special Height Area H3 within which the site if located and the Desired Future Character to promote and encourage low density residential accommodation in the form of detached/attached dwellings with a maximum height of 2 to 3 storeys (10 metres height limit) depending on the slope of the land with a FSR of 0.55:1 with the lower level comprising only non-habitable (garage) space as required. […]”

42. Mr Lidis’ application of the controls for the Special Height Area H3 is correct in my view in that he limits it to the assessment of scale which is appropriate as the reference to the H3 area appears in the second bullet point under the heading “Form, Massing, Scale and Streetscape”. I do not accept the argument of the Applicant in submissions which would extend the application of the second bullet point beyond the scope of “Form, Massing, Scale and Streetscape” but rather extend its application to support the argument that a semi-detached dwelling and subdivision in the form proposed is permissible and encouraged which if the Applicant were correct would result in not requiring the Proposed Development to comply with the other controls in Part 3E of the BBDCP. I do not accept that this is the correct application of the provisions of the BBDCP.

43. I accept the evidence in the JER at page 13 that the proposed subdivision “retains a rectilinear grid pattern within the precinct.” However, I note that Mr Lidis, at par [4.41] states as follows:

“In my view, the introduction of two lots which are narrower and have a lesser area than its immediate neighbours into the area, as proposed, will not have any significant adverse impact on the character of the locality or unduly disrupt the overall subdivision pattern in the locality. The proposed lots are consistent with its neighbours with regard to length, shape and orientation.”

44. The above evidence from Mr Lidis makes the concession that the Proposed Development will have an adverse impact on the character of the locality and that the Proposed Development will disrupt the overall subdivision pattern in the locality. Further at [4.43] Mr Lidis states that:

“The proposed subdivision will not compromise any significant features of the existing streetscape character, landscape features or tress and is consistent with the Desired Future Character to enhance the public domain and streetscapes within the Precinct.”

45. Having considered the evidence and the submissions of the parties, I find that the Court is required to assess the Proposed Development in accordance with the controls in Part 3E of the BBDCP and part of that assessment includes a consideration of whether the Development Application has demonstrated that the Proposed Development is consistent with the Desired Future Character (Control C1 of Part 3E.2.1) as well as an assessment of the Proposed Development for compliance with the other controls including C3 of Part 3E.2.1 and C2 of Part 3E.2.2 quoted above at [31] and [32]. The consideration of whether the Development Application has demonstrated consistency with the Desired Future Character does not exclude or excuse the Applicant from compliance with control C3 of Part 3E.2.1 and control C2 of Part 3E.2.2. It is relevant that the note to both of these controls provides guidance on how to establish and determining what is the “prevailing subdivision pattern”.

46. I note that the method adopted by the Respondent to determine the prevailing subdivision patter is slightly different to the guidance provided in the BBDCP in that the Respondent adopts a 300m radius of the Site to assess the allotments surrounding and within close proximity to the Site to determine the prevailing subdivision pattern (refer to particular e of the ASOFAC and [4.12] of the JER). The Respondent’s method is wider and perhaps broader than the method provided in the BBDCP in the note to the relevant controls which refers to a consideration of ‘up to ten allotments on either side of the subject site and corresponding number of allotments directly opposite the subject site’.

47. I have reviewed the 300m radius diagrams included in the JER at pages 3 and 15 and I have reviewed Exhibit 3 which is a map tendered by the Respondent. I note Mr Lidis’ opinion at [3.2] of the JER that “there is a range of lot sizes and configurations in the locality as shown in the map […] including two existing smaller lot subdivisions opposite and to the west of the site at 1 Dalley Avenue/297 Bay Street and 184 and 184A Bay Street.” Ms Prodromou, considers the same 300m radius map and “is of the view that this illustrates lots width, shape and symmetry which are generally consistent and akin in overall area with the lot subject of these proceedings”. (par 3.3 JER) At [3.4] Ms Prodroumou goes on to refer to the 300m radius map in the JER on page 3 and states “that the nature of the established subdivision pattern within the context of this site is primarily consistent with respect to lot width and overall area […] indicates existing lots which comprise a prevailing lot width of 12m – 15m & site area primarily ranging between 500sq/m – 626sq/m.”

48. Ms Prodroumou does acknowledge that there are limited variations to lot widths, shapes and areas however “these are not indicative of the ‘prevailing’ subdivision pattern and are consequential as a result of past planning controls and circumstances ie secondary street access.”

49. The reference by Ms Prodroumou to secondary street access is a response to the Applicant attempting to rely on approvals to semi-detached dwellings on Ocean Street. The properties the Applicant refers to are detailed at [20] Applicant’s written submissions and these properties were pointed out during the Site view. The properties in Ocean Street are located outside the 300m radius and are also not within the area described in the notes to the controls namely, up to 10 allotments on either side of and opposite to the Site. For these reasons I do not consider that the Ocean Street properties are relevant to the ‘prevailing subdivision pattern’ which is referred to in controls C3 of Part 3E.2.1 and C2 of Part 3E.2.2.

50. I also do not consider the comparison with the Ocean Street properties helpful in these proceedings as these Ocean Street properties and the approvals of their development were not subject to any subdivision controls or Torrens title subdivision assessment was not relevant to those developments, so it is my view that the comparison is not justifiable and does not assist the Court. The relevant Ocean Street properties did not require subdivision, so, consideration of the BBDCP controls regarding subdivision were not relevant to those proposals. The Proposed Development expressly seeks approval for Torrens title subdivision and without that approval a semi-detached dwelling will not have its own lot of land and the alternative is a dual occupancy which is not permitted in the R2 Low Density Residential land use table in the BBLEP.

51. I find that the prevailing subdivision pattern relevant to the Proposed Development is as described in particular e of Contention 1 in the ASOFAC being lots which comprise of a prevailing width of 12m – 15 m and site area primarily ranging between 500m² and 626m².

52. I find that the Proposed Development is consistent with the Desired Future Character to the extent that the proposed subdivision “retains a rectilinear grid pattern within the precinct.” To that extent I accept the evidence of Mr Lidis at [4.37] of the JER. This finding is sufficient only to satisfy compliance with controls C1 of Part 3E.2.1 and C1 of Part 3E.2.2.

53. I do not accept the opinion of Mr Lidis at [4.38] of the JER that the Proposed Development meets the controls of Part 3E.2.1 and Part 3E.2.2 of the BBDCP. For the reasons given above, I do not accept that the Proposed Development has characteristics similar to the prevailing subdivision patern of lots fronting the same street, in terms of area; dimensions, shape and orientation.

54. I am not satisfied on balance that the Applicant’s submission that the language in the Pagewood Character Precinct prevails over the requirement of the Proposed Development to comply with the controls in Part 3E. The Pagewood Character Precinct is a statement in the BBDCP which provides guidance as to the Desired Future Character and is relevant to the requirement that the Development Application demonstrate consistency with the Desired Future Character. Consistency with the Desired Future Character is only part of the assessment and the balance of the Controls also need assessment as to whether the Proposed Development complies with them.

55. I find that the Proposed Development does not comply with the stated controls because the proposed Torrens title subdivision will not “have characteristics similar to the prevailing subdivision pattern of lots fronting the same street, in terms of area; dimensions; shape and orientation.” The rectangle shape alone does not satisfy this control and the result of two narrow symmetrical allotments measuring 6.33 m in width and 269.9m² in area will be inconsistent with the existing prevailing subdivision pattern. Accordingly, the Development Application for Torrens title subdivision is unable to be approved and the consent sought for the construction of two semi-detached dwellings is not able to be approved as they will not have their own lot of land.

Orders

56. The Court orders that:

1. The appeal is dismissed.

2. The Development Application No 2020/28 seeking development consent for the demolition of all existing structures, Torrens title subdivision into two allotments and construction of two semi-detached dwelling houses at 192 Bay Street Pagewood, NSW legally identified as Lot 282 in DP 12533 is refused.

3. The exhibits are returned except for Exhibits H and 6.

…………………….

E Espinosa

Commissioner of the Court

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Decision last updated: 15 March 2021