Tayyar v Bayside Council

[2023] NSWLEC 1192

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tayyar v Bayside Council [2023] NSWLEC 1192

Hearing dates:

24 and 25 January 2023

Date of orders:

26 April 2023

Decision date:

26 April 2023

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

(1) The appeal is dismissed;

(2) Development Application DA2021/481 seeking consent for demolition of existing structures, Torrens title subdivision of one lot into two lots and construction of two semi-detached dwelling houses, is determined by way of refusal;

(3) The exhibits are returned, with the exception of Exhibits D and 1.

Catchwords:

DEVELOPMENT APPLICATION – Torrens title subdivision – semi-detached dwelling houses – whether proposed lots would be consistent with prevailing subdivision pattern

Legislation Cited:

Bayside Local Environmental Plan 2021, cll 1.2, 2.3, 2.6, 4.1, 4.1AA

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 77

Cases Cited:

Fuller v Inner West Council [2019] NSWLEC 1506

Texts Cited:

Botany Bay Development Control Plan 2013

Category:

Principal judgment

Parties:

Ali Tayyar (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
A Jucha (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Vision Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/287086

Publication restriction:

No

Judgment

1. COMMISSIONER: Ali Tayyar (the Applicant) has appealed the refusal by Bayside Council of its development application DA2021/481, made with owners’ consent, seeking approval for demolition of existing structures, Torrens title subdivision of one lot into two lots and construction of two semi-detached dwelling houses (the Proposed Development) at 29 Napoleon Street, Roseberry (the Subject Site).

2. The Applicant’s appeal comes to the Court pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act), and they are determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Subject Site is zoned R2 Low Density residential under the provisions of cl 2.3 of Bayside Local Environmental Plan 2021 (BLEP), and is located approximately 90m north of the corner of Napoleon Street with Coward Street, and it has a frontage of some 12m and an area of 389.9m².

4. The Proposed Development includes:

1. the demolition of existing structures on the Subject Site;

2. the Torrens title subdivision of the Subject Site into two lots with areas of 194.4m² (proposed Lot 1) and 195.5 m² (proposed Lot 2);

3. construction of two semi-detached dwellings, including outdoor decks, swimming pools, separate vehicular crossings and driveways, additional pedestrian pathway access, and

4. a single car garage fronting Napoleon Street for each of the proposed semi-detached dwellings.

5. A site view was undertaken prior to the commencement of the hearing and no objectors sought to provide oral submissions to the Court during the site view.

6. At the commencement of the hearing the Parties submitted that the principal contentions requiring resolution in this appeal concerned:

1. whether the Applicant’s proposed subdivision of the Subject Site has characteristics similar to the prevailing subdivision pattern of lots fronting the same street, in terms of area; dimensions, shape and orientation as required under the provisions of Parts 3E.2.1 and 3E.2.2 of Botany Bay Development Control Plan 2013 (BBDCP);

2. whether the Applicant’s proposed car parking structures, that is the proposed garages fronting Napoleon Street, are located and designed so as to not dominate or detract from the appearance of the streetscape, as required under the provisions of Part 4A.4.8 of BBDCP;

3. whether the Applicant has demonstrated that the proposed subdivision or amalgamation is consistent with the Desired Future Character of the area, which is also required under the provisions of Parts 3E.2.1 and 3E.2.2 of BBDCP.

7. The Court was assisted in its consideration of these matters by the joint reports and oral testimony of the Parties’ town planning experts Mr Ali Hammoud, for the Applicant, and Ms Felicity Eberhart, for the Respondent.

Statutory context

Environmental Planning and Assessment Act 1979

8. Section 4.15(1)(a) requires:

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

9. Section 4.15(3A) of the EP&A Act provides as follows:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(a)  if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b)  if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is 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, and

(c)  may consider those provisions only in connection with the assessment of that development application.

Environmental Planning and Assessment Regulation 2000

10. The following provisions of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) are of relevance in this appeal:

1. Clause 49(1), which requires that, inter alia, a development application must be made by an owner of the land that is the subject of the application or with the consent of the owner of the land;

2. Clause 77(1), which concerns notification of development applications as follows:

(1) As soon as practicable after a development application is lodged with the consent authority, the consent authority must -

(a) publish notice of the application on the consent authority’s website, and

(b) give notice of the application to -

(i) the public authorities (other than relevant concurrence authorities or approval bodies) that, in the opinion of the consent authority, may have an interest in the determination of the application, and

(ii) in the case of a development application other than designated development - the persons that, in the opinion of the consent authority, own or occupy the land adjoining the land to which the application relates (unless the notice is in respect of an application for public notification development).

Bayside Local Environmental Plan 2021

11. Development on the Subject Site is subject to the provisions of BLEP, and the following are of particular relevance in this appeal:

1. clause 1.2 of BLEP provides the aims of plan which are:

(1) This Plan aims to make local environmental planning provisions for land in Bayside in accordance with the relevant standard environmental planning instrument under section 3.20 of the Act.

(2) The particular aims of this Plan are as follows-

(aa) to protect and promote the use and development of land for arts and cultural activity, including music and other performance arts,

(a) to protect, conserve and enhance Aboriginal cultural heritage and the environmental, cultural, scenic, built and landscape heritage of Bayside,

(b) to provide high quality open space areas and recreational facilities,

(c) to reduce community risk and improve resilience to, and from, urban and natural hazards,

(d) to encourage sustainable economic growth and development in Bayside,

(e) to create a liveable urban place through the application of design excellence in all elements of the built environment and public domain,

(f) to encourage diversity in housing to meet the needs of, and enhance amenity for, Bayside residents,

(g) to encourage walking, cycling and use of public transport through appropriate intensification of development densities surrounding transport nodes,

(h) to encourage development that demonstrates efficient and sustainable use of energy and resources in accordance with ecologically sustainable development principles,

(i) to enhance and protect the functions and roles of the international trade gateways of Sydney Airport and Port Botany,

(j) to increase urban tree canopy cover and enable the protection and enhancement of green corridor connections,

(k) to promote and enhance the amenity of Botany Bay’s foreshores and Bayside’s waterways.

2. the Subject Site is zoned R2 Low Density Residential under the provisions of cl 2.3 of BLEP, and the objectives of the R2 zone are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To ensure land uses are carried out in a context and setting that minimises impact on the character and amenity of the area.

• To enable residential development in accessible locations to maximise public transport patronage and encourage walking and cycling.

3. clause 2.6 of BLEP provides subdivision consent requirements of relevance to the Proposed Development, as follows:

(1) Land to which this Plan applies may be subdivided, but only with development consent.

…

(2) Development consent must not be granted for the subdivision of land on which a secondary dwelling is situated if the subdivision would result in the principal dwelling and the secondary dwelling being situated on separate lots, unless the resulting lots are not less than the minimum size shown on the Lot Size Map in relation to that land.

4. under cl 4.1(AA) of BLEP the provisions of cl 4.1 in relation to the minimum subdivision lot size do not apply to the subdivision of land in the R2 Low Density Residential zone on which the erection of an attached dwelling or a semi-detached dwelling is proposed.

Botany Bay Development Control Plan 2013

12. Development on the Subject Site is also subject to the provisions of BBDCP which provides guidance for future development on land where this DCP applies within the Bayside Local Government Area (LGA).

13. The Parts of BBDCP that are relevant in the determination of the Applicant’s development application in this appeal are the following:

1. Part 3E which concerns the subdivision and amalgamation of lands, and in particular:

1. Part 3E.2.1 which includes the following relevant objectives and controls concerning general Torrens title subdivision of land:

1. Objectives O1 and O2 which are:

“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”

2. Controls C1 and C3 which are:

“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, Part 9 - Key Sites, Part 5 - Business Centres and Part 6 – Employment Zones).

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 Figure 1).

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”.

3. The Figure 1 referred to above (at [(ii)]), is as follows:

2. Part 3E.2.2 which includes the following relevant objectives and controls concerning residential Torrens title subdivision or amalgamation of land:

1. Objectives O1 and O2 which are:

“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 or prevailing subdivision pattern”

2. Controls C1 and C2 which are:

“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, Part 9 - Key Sites Part 5 - Business Centres and Part 6 - Employment Zones).

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.”

2. Part 4A in relation to low density housing, and in particular:

1. Part 4A.2.1 in relation to design excellence, which includes the following relevant objective and control:

1. Objective O3 which is to ensure new development contributes positively to the streetscape; and

2. Control C1(xvii) which says that to achieve excellence in urban design, development should ensure garages and carports are not the dominant feature of the building façade. They must be subservient in scale to the dwelling and compatible with the overall design of the dwelling

2. Part 4A.4.8 which includes the following relevant objectives and controls concerning car parking:

1. Objectives O2 and O3 which are:

“O2 To ensure that car parking structures respect and enhance the character of the street;

O3 To ensure garages, carports and hardstand areas are designed to complement and not compete with the architectural character of the existing building and do not become a dominant element on the site or detract from the quality of the streetscape.”

2. Control C4(iv) which is:

“C4 Car parking structures must be located and designed to:

…

(iv) Not dominate or detract from the appearance of the existing dwelling or new development and the streetscape”

3. Part 8 in relation to Character Precincts, and which in Part 8.6 provides a statement for the desired future character of the Roseberry precinct within which the Subject Site is located.

Contentions

14. The principal contentions in the appeal were identified above (at [6]), and require the Court to resolve the following questions:

1. does the Applicant’s 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?

2. are the proposed car parking structures, that is the proposed garages fronting Napoleon Street, located and designed so as to not dominate or detract from the appearance of the streetscape?

3. is the proposed subdivision consistent with the Desired Future Character of the area?

15. I will consider each of these questions in turn.

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?

16. 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.

17. 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.”

18. 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.

19. 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:

20. 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;

2. 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

21. 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;

2. 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]).

22. 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.

23. 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;

2. 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.

24. 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;

2. 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;

3. 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;

4. 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;

5. 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;

6. 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.

7. 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.

25. 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.

26. 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”.

2. 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”.

27. 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.

Are the Applicant’s proposed car parking structures fronting Napoleon Street, located and designed so as to not dominate or detract from the appearance of the streetscape?

28. Part 4A of BBDCP provides guidance in relation to development concerning dwelling houses, including semi-detached dwellings.

29. The provisions of Part 4A.4.8 of BBDCP (see above at [13(2)(b)(ii)]) require, inter alia, that car parking structures must be located and designed so as not to dominate or detract from the appearance of the existing dwelling or new development and the streetscape (control C4 (iv)).

30. In a similar vein, the provisions of Part 4A.2.1 in relation to design excellence include control C1(xvii) which requires that development should ensure garages and carports are not the dominant feature of the building façade, and that they must be subservient in scale to the dwelling and compatible with the overall design of the dwelling.

31. The Respondent had submitted that the design of the Proposed Development had a building façade width of 11.12m, and that the garages had a total width to the street of 6.37m or some 57% of the building façade.

32. During cross examination during the hearing, the Applicant’s town planning expert, Mr Hammoud accepted the facts concerning the width of garages fronting Napoleon Steet as put by the Respondent, but noted that, notwithstanding these measurements, the Applicant’s proposed garage design achieved objective O2 of Part 4A.4.8 which required that car parking structures should respect and enhance the character of the street.

33. I have considered the expert evidence provided on this matter during the hearing along with submissions of the Parties and conclude that I agree with the simple proposition put by the Respondent that, given the dimensions of the Applicant’s proposed garages fronting Napoleon Street (see above at [31]), the car parking structures would dominate the appearance of the Proposed Development and the streetscape and so is not compliant with control C4(iv) in Part 4A.4.8 of BBDCP.

34. As noted previously (see above at [25]), notwithstanding this non-achievement of the control in Part 4A.4.8, 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

35. The relevant objectives for consideration in relation to the application of s 4.15(3A) of the EP&A Act are objectives O2 and O3 of Part 4A.4.8, which are:

“O2 To ensure that car parking structures respect and enhance the character of the street; and

O3 To ensure garages, carports and hardstand areas are designed to complement and not compete with the architectural character of the existing building […]”

36. Noting my conclusion (see above at [33]) that, given the scale of the Applicant’s proposed car parking (see above at [31]), the Applicant’s proposed car parking structures would indeed dominate the appearance of the Proposed Development and the streetscape, I also assess that:

1. the Applicant’s proposed garages are not designed to complement, and would compete, with the architectural character of the proposed building and would be a dominant element on the Subject Site; and consequently

2. the Proposed Development does not achieve objective O3 of Part 4A.4.8 of BBDCP.

37. I note that the Applicant’s expert planner, Mr Hammoud, stated (see above at [32]) that, in his opinion, the Applicant’s proposed garage design achieved objective O2 of Part 4A.4.8 which required that car parking structures should respect and enhance the character of the street.

38. However, based on my conclusion (see above at [33]) I am satisfied that the Applicant’s car parking structures would dominate the appearance of the Proposed Development and the streetscape, I do not share the assessment of Mr Hammoud in relation to the Proposed Development’s achievement of objective O2 of Part 4A.4.8 of BBDCP.

39. Based on my findings above (at [36(2)] and [38]) I also conclude that the Proposed Development does not merit application of flexibility in relation to the controls in Part 4A.4.8 of BBDCP as per s 4.15(3A) of the EP&A Act.

Is the proposed subdivision consistent with the Desired Future Character of the area?

40. Controls C1 in both Parts 3E.2.1 and 3E.2.2 of BBDCP (see above at [13(1)]) require that the Applicant’s proposed subdivision should be consistent with the desired future character of the area in which the Subject Site is located, which is the Rosebery character precinct.

41. The desired future character for the Rosebery character precinct is provided within Part 8.6.2 of BBDCP, and includes, of relevance in the current appeal, a requirement in relation to form, massing, scale and streetscape, that that developments should promote site access and parking facilities that do not dominate the streetscape.

42. I have already concluded above (at [33]) that the Applicant’s car parking structures would dominate the appearance of the Proposed Development and the streetscape.

43. Consequently, and notwithstanding the other considerations addressed within the desired future character of the Rosebery character precinct, I conclude that:

1. the Applicant’s proposed subdivision is not consistent with the precinct’s desired future character; and

2. the Applicant has not demonstrated that its proposed subdivision is consistent with the Desired Future Character of the area as required under the provisions of controls C1 in both Parts 3E.2.1 and 3E.2.2 of BBDCP (see above at [13(1)]);

3. the Proposed Development would also not achieve objectives O1 in both Parts 3E.2.1 and 3E.2.2 of BBDCP (see above at [13(1)]) which require that the proposed subdivision be consistent with the Desired Future Character of the area; and

4. the Proposed Development does not merit application of flexibility in relation to the controls in Parts 3E.2.1 and 3E.2.2 of BBDCP as per s 4.15(3A) of the EP&A Act.

Conclusion

44. Based on my findings above at [24(7)], [33] and [43], I am satisfied that:

1. 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;

2. the Applicant’s proposed car parking structures would dominate the appearance of the Proposed Development and the streetscape and so is not compliant with control C4(iv) in Part 4A.4.8 of BBDCP

3. the proposed subdivision consistent with the desired future character of the Rosebery area as required under the provisions of Parts 3E.2.1 and 3E.2.2 of BBDCP;

4. having assessed the achievement of otherwise of the relevant objectives of the controls identified above, the Proposed Development does not merit the application of flexibility in relation to its non-compliance with those controls; and

5. the Applicant’s Proposed Development should not be approved, and the appeal should be dismissed.

Orders

45. The orders of the Court are:

1. The appeal is dismissed;

2. Development Application DA2021/481 seeking consent for demolition of existing structures, Torrens title subdivision of one lot into two lots and construction of two semi-detached dwelling houses, is determined by way of refusal;

3. The exhibits are returned, with the exception of Exhibits D and 1.

M Chilcott

Commissioner of the Court

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Decision last updated: 26 April 2023