Zhu v Inner West Council

[2023] NSWLEC 1488

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zhu v Inner West Council [2023] NSWLEC 1488

Hearing dates:

29 and 30 June 2023

Date of orders:

29 August 2023

Decision date:

29 August 2023

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court directs that:

(1)   The Applicant is to prepare and file with the Court an amended BASIX certificate, reflecting the final amended Development Application (DA) as described in the Issue E plans tendered as Exhibit R, within 7 days.

(2)   The Respondent is then to amend Condition 1 of the draft conditions of consent tendered as Exhibit 6 to reflect the Applicant’s final amended DA, including reference to the BASIX certificate noted above and the Issue E drawings tendered as Exhibit R, and is then to file these conditions of consent with the Court within a further 7 days.

(3)   Upon receipt of the amended BASIX certificate (from the Applicant) and amended conditions of consent (from the Respondent), the Court will give consideration to the making of appropriate final orders.

Catchwords:

DEVELOPMENT APPLICATION – semi-detached dwelling houses – Torrens title subdivision – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 3.42, 4.15, 8.7

Land and Environment Court Act 1979, s 34AA

Inner West Local Environmental Plan 2022, cll 1.2, 2.2, 2.3, 4.1, 4.3, 4.4, 5.10, Sch 5, Pt 1

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

State Environmental Planning Policy (Resilience and Hazards) 2021

Texts Cited:

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

Xiaolong Zhu (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
J Marsland (Solicitor) (Respondent)

Solicitors:
Piper Alderman (Applicant)
Apex Planning and Environment Law (Respondent)

File Number(s):

2023/20987

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Xiaolong Zhu (the Applicant) against the refusal of Development Application DA-2022/0721 (the DA) by Inner West Council (the Respondent). The DA sought consent for demolition of an existing dwelling, construction of two, three-storey semi-detached dwellings and Torrens title subdivision of the property located at 12 Dibble Avenue, Marrickville (the site).

2. At the date of its lodgement on 5 September 2022, the key features of the DA included:

1. The demolition of the existing dwelling, attached carport and garage at the rear of the site.

2. The construction of two semi-detached dwellings each comprising four bedrooms, two bathrooms, a combined kitchen, living and dining area, a separate family room and an elevated timber deck accessed from the living area.

3. Landscaping works for each proposed dwelling.

4. Torrens title subdivision of the parent lot reflecting the two new dwellings and resulting in two new lots each with an allotment frontage of 7.62m and site area of 211.3sqm.

3. The Court arranged a conciliation conference and hearing under s 34AA(2) of the Land and Environment Court Act 1979 between the parties, which was held on 29 and 30 June 2023. I presided over the conciliation conference and subsequent hearing.

4. At the commencement of the conciliation conference on site, the Court benefited from oral submissions made by concerned residents of a neighbouring property. These residents raised issues of loss of solar access, compromised privacy and cross viewing resulting from side boundary setbacks, the apparent exceedance of the relevant floor space ratio (FSR) development standard and insufficient provision of on-site car parking.

5. Accompanied by representatives of the parties, I also visited these residents’ property to better appreciate those areas within the dwelling likely to affected by the DA proposal.

6. During the conciliation conference, the Applicant introduced a set of amended plans on a without prejudice basis. These amended plans remained similar in many aspects as the original DA, but incorporated design changes intended to resolve the Respondent’s contentions, and generally formed the basis of discussions at the conciliation conference.

7. Although these amended plans served to narrow the contentions in this matter, the parties were unable to reach agreement to the terms of a decision that would be acceptable to the parties. Accordingly, the conciliation conference was terminated and a hearing held forthwith.

8. At the commencement of the hearing, the Court granted leave to the Applicant to amend the DA and rely upon amended architectural plans, prepared by Cracknell and Lonergan Architects Pty Ltd, dated 26 June 2023 and marked as Issue D. These drawings form Exhibit J in these proceedings.

9. On the second day of the hearing - again with the leave of the Court - these architectural plans were further amended and tendered as Exhibit R (now dated 29 June 2023 and marked as Issue E). This final amended DA forms the subject of the appeal.

The site and its context

10. The site is located at 12 Dibble Avenue, Marrickville and is legally described as Lot 23 in Deposited Plan 20459.

11. The site is regular in shape with a surveyed area of 422.6sqm. The allotment has a primary frontage to Dibble Avenue and a rear boundary both of 15.24m. The common side boundaries, with 10 Dibble Avenue to the northeast and 47 Riverside Crescent to the southwest, are both 27.73m in length.

12. The site is characterised by a slight topography, rising from Dibble Avenue at the front of the lot towards the rear boundary by approximately 500mm.

13. The site is occupied by an existing one-storey dwelling with garage and carport that presents to Dibble Avenue with a hipped tiled roof. This dwelling addresses a front lawn and broadly matches the setback and alignments of the two immediate neighbouring dwellings.

14. The subject site coincides with a land use zone boundary, with the northwestern side of Dibble Avenue (in the immediate vicinity of the site) falling within a low density residential area, while the southeast side of Dibble Avenue falls within a more flexible general residential area. The surrounding buildings are generally consistent with these land uses.

15. On the northwest side of Dibble Avenue, in the immediate vicinity of the subject site, is an urban context characterised by detached single dwellings of one- and two-storey with hipped roof forms.

16. On the opposite - southeast - side of Dibble Avenue, a number of similar, single dwellings types are evident, along with a three-storey residential apartment building reflective of the more flexible land use zone in this area.

17. The rear of the site abuts two separate allotments at 10 Pilgrim Avenue and 49 Riverside Crescent. Both of these rear neighbours are detached single dwellings of one-storey with hipped tiled roofs.

18. In the wider local context, the site is located southeast of the Dulwich Hill local centre and approximately 500m from Dulwich Hill railway station. Marrickville Golf Course and the Cooks River are located to the southern side of Riverside Crescent in close proximity to the site.

The planning controls

19. The key relevant statutory planning and development controls are as follows:

1. EPA Act.

2. State Environmental Planning Policy (Resilience and Hazards) 2021.

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

4. Inner West Local Environmental Plan 2022 (IWLEP).

5. Marrickville Development Control Plan 2011 (MDCP).

20. The site is zoned R2 Low Density Residential pursuant to cl 2.2 of the IWLEP. Development for the purpose of semi-detached dwelling houses and Torrens title subdivision are permissible with consent.

21. Pursuant to cl 4.3 of the IWLEP, the site is subject to a height of buildings development standard of 9.5m. The final amended DA complies with this development standard.

22. Contingent upon the proposed Torrens title subdivision (which would have the effect of creating two equivalent lots, each of 211.3sqm in area) and pursuant to cl 4.4 of the IWLEP, the two new allotments would each be subject to a FSR development standard of 0.9:1. The final amended DA complies with this development standard.

23. Pursuant to cl 5.10 of the IWLEP, the site is not identified as an item of heritage significance nor is it located within a heritage conservation area. The site is in the vicinity of locally listed heritage item I1221 - Dibble Avenue Waterhole - identified in Sch 5, Pt 1 of the IWLEP.

History of the Development Application

24. The Respondent’s Statement of Facts and Contentions, dated 10 February August 2023 and forming Exhibit 1 in these proceedings, sets out the history of the subject DA. A concise summary follows.

25. Development Application DA-2022/0721 was lodged with the Respondent by the Applicant on 5 September 2022.

26. The DA was publicly notified from 28 September to 12 October 2022. One submission was received which raised concerns associated with:

1. Overshadowing impacts created by the proposal upon a neighbouring dwelling.

2. Proposed building setbacks and rear-facing balconies which impair the privacy of a neighbouring dwelling.

3. The proposed exceedance of the FSR development standard.

4. The absence of any proposed onsite car parking.

27. On 16 November 2022, the Respondent corresponded with the Applicant’s architect after a preliminary assessment of the DA.

28. On 7 December 2022, the Applicant submitted an amended set of plans to the Respondent.

29. On 11 January 2023, the DA was refused by the Respondent with the Notice of Determination (which forms part of Exhibit A) identifying the following reasons for refusal:

1. The proposal is inconsistent with cl 1.2 of the IWLEP - Aims of Plan - as the DA does not promote a high standard of design and results in adverse impacts on the character of the Inner West local government area.

2. The proposal is inconsistent with various objectives and controls of the MDCP including the DA being incompatible with the surrounding subdivision pattern, the creation of adverse visual privacy impacts upon adjacent properties, the creation of significant overshadowing of an adjacent property, a proposed subdivision which is inconsistent with the surrounding cadastral pattern and excessive visual bulk arising from inadequate upper-level rear setbacks.

3. Given the reasons noted above, and pursuant to s 4.15(1)(b) of the EPA Act, the DA will result in adverse impacts on the built environment in the locality.

4. Given the reasons noted above, and pursuant to s 4.15(1)(c) of the EPA Act, the DA has not demonstrated the site is suitable for the proposed development.

5. Given the reasons noted above, and pursuant to s 4.15(1)(e) of the EPA Act, the DA is not in the public interest.

The issues

30. The contentions pressed by the Respondent can be found in the Statement of Facts and Contentions forming Exhibit 1 in these proceedings.

31. These contentions are summarised as follows, and at the commencement of the conciliation conference, all remain pressed by the Respondent:

1. Lot size and configuration - the proposed Torrens title subdivision will result in the creation of two allotments that do not have characteristics similar to the prevailing cadastral pattern in the immediate locality, particularly in terms of lot frontage and area.

2. Bulk and scale - the height, bulk and scale of the DA fails to complement the scale of the residential dwellings in the immediate locality.

3. Overshadowing impacts - the height and scale of the DA results in built form that generates unreasonable overshadowing on the immediate southern neighbouring dwelling.

4. Visual privacy impacts - the proposed elevated rear deck associated with each of the two semi-detached dwellings results in cross viewing and visual privacy impacts to adjoining properties.

5. Car parking - the DA does not provide on-site car parking, which is likely to increase demand for on-street parking in the locality.

6. Public interest - for reasons (1)-(5) above, and pursuant to s 4.15(1)(e) of the EPA Act, the DA is not in the public interest.

7. Public interest - given the matters raised in public submissions, and pursuant to s 4.15(1)(d) of the EPA Act, the DA is not in the public interest.

The evidence

32. The Court was assisted by experts in planning and traffic, who conferred to prepare two joint reports. The experts are Ms Jennie Askin (planner) and Mr Thomas Steal (traffic engineer) for the Applicant, and Mr Garry Chapman (planner) for the Respondent. The joint expert report of the planners forms Exhibit 3 in these proceedings while the traffic and planning joint expert report forms Exhibit 4 in these proceedings.

33. Although the conciliation conference phase of these proceedings did not serve to resolve all the issues raised by the Respondent, it did however usefully narrow the number and nature of these contentions.

34. Specifically, the joint conferencing and oral evidence of the experts in concert with design changes incorporated in the final amended DA that forms the subject of this appeal (the Issue E architectural plans tendered as Exhibit R), has resolved the following contentions:

Contention 2 - Bulk and scale

35. During the second day of the hearing, in oral evidence and with reference to Exhibit R, the planning experts were satisfied that the final amendments to the proposed upper-level setback of the dwellings as they present to Dibble Avenue, together with the resultant street-facing balcony forms, altered ridge lines and conformity with the relevant FSR development standard, were sufficient to resolve the contention for bulk and scale.

36. Additionally, at par 29 of the joint report, the planning experts agree the DA proposes dwellings that are two-storey - consistent with definition of “storey” contained in the Dictionary of the IWLEP - and not three-storey as originally contended.

Contention 3 - Overshadowing impacts

37. In further oral evidence, again with reference to Exhibit R, the planning experts were satisfied that design changes to the form of the final amended DA were adequate to resolve the contention regarding overshadowing impacts.

38. Specifically, the experts were satisfied that an acceptable level of solar access will be received in key interior living spaces and outdoor private spaces at the immediate southern neighbouring dwelling, notwithstanding an evident reduction in solar access received through the neighbour’s kitchen window and a reduction in the extent of outlook available from some of the upper-level bedrooms, which address the common side boundary with the subject property.

39. These impacts were assessed by the experts to be equal to or less than the reasonable impacts that would arise from a strictly complying DA proposal for the subject site.

Contention 4 - Visual privacy impacts

40. Similarly, the planning experts, were satisfied that the final amended DA, by reconfiguring the extent and screening of the proposed rear deck areas, would adequately limit the potential for cross viewing between neighbouring properties and thereby resolve this contention.

Contention 5 - Car parking

41. In oral evidence, the Respondent’s traffic and planning expert agreed that the final amended DA satisfactorily resolved the issues raised in Contention 5.

42. The final amended DA introduces a single garage addressing Dibble Avenue and serving the southeastern dwelling. The experts agree that notwithstanding a numerical non-compliance with the MDCP (which calls for two off-street car spaces where only one is proposed), the shortfall in off-street car parking is mitigated against by a reduction in areas of hardstand within the site boundary and a corresponding increase in landscape area and deep soil.

43. On balance, the experts are satisfied that the changes provided in the final amended DA cumulatively result in an improved streetscape presentation and at the same time result in no net loss of on-street car parking along Dibble Avenue, which may have otherwise arisen from the creation of a second kerb crossing into the site.

Contentions 6 and 7 - Public interest

44. Given the experts’ agreement regarding Contentions 2, 3, 4 and 5, the parties also agree that Contentions 6 and 7 fall away and are no longer pressed by virtue of the final amended DA.

The remaining live contention in these proceedings - Contention 1

45. As a consequence of the areas of agreement between the parties set out above, the remaining live contention in this matter narrows the dispute to a single issue related to the proposed Torrens subdivision, specifically the resultant lot size and configuration. This issue is reflected in Contention 1.

Contention 1 - Lot size and configuration

46. Contention 1 is expressed in the following terms within Exhibit 1:

“Lot Size and Configuration

1. The proposed Torrens title subdivision creating Lots 1 and 2 will result in allotments that do not have characteristics similar to the prevailing cadastral pattern of the lots in the immediate locality fronting Dibble Avenue, Pilgrim Avenue and Riverside Crescent, between Dibble Avenue and Wardell Road, Marrickville in terms of lot frontage and area.

Particulars

(a) The proposed lots have a frontage and area that are not similar with the area of lots in Dibble Avenue (1-13 Dibble Avenue) that have a frontage of 12m-17.1m and area between 367.1sqm-822sqm, lots in Pilgrim Avenue (2-10 Pilgrim Avenue) that have a frontage of 8m-20m (noting the 8m lot width is [at] the head of the cul-de-sac) and area between 340sqm-600sqm (approximately), and lots on Riverside Crescent (between Dibble Avenue and Wardell Road 49-55 Riverside Crescent) that have a frontage of 14m-18m and an area between 380sqm–520sqm (approximately). The proposed lots are contrary to the residential Torrens title subdivision objectives and controls at Part 3.2.2 of the Marrickville DCP including objectives O4 and O5, controls C5 and C6.”

47. At par 10 of their joint report (Exhibit 3), Ms Askin and Mr Chapman identify no areas of agreement regarding Contention 1.

48. Mr Chapman sets out his position at par 11 of the joint report in the following terms:

“…the proposed Torrens title subdivision (Lots 1 and 2) fail[s] to meet the applicable objectives O3 and O5 and control C5 at Part 3.2.2 of the [M]DCP as the proposed allotments are not similar with the frontage or area of lots in Dibble Avenue (1-13 Dibble Avenue)…the lots in Pilgrim Avenue (2-10 Pilgrim Avenue)…and the lots on Riverside Crescent between Dibble Avenue and Wardell Road (49-55 Riverside Crescent)…”

49. The objectives and controls of Part 3.2.2 of the MDCP - Residential Torrens title subdivision and amalgamation controls - (drawn from Exhibit 2) are repeated in full as follows:

“3.2.2 Residential Torrens title subdivision and amalgamation controls

The residential subdivision pattern of the land where this DCP applies is characterised by small lot subdivisions of attached and detached row housing along the northern and eastern parts, and larger lot subdivisions with detached housing in the western and southern areas.

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 adequately provide room for open space, parking and landscaping.

Amalgamation is the combination of two or more lots for the purpose of redevelopment. This is usually required where the current cadastral arrangement contains lots that are too small or impractical in area, dimensions, shape and orientation to achieve the desired future built form. For residential land uses, this may be required for large higher density developments, such as masterplanned sites where amalgamation allows for a particular site planning such as providing new streets, allowing building massing to new orientations, providing new open spaces and providing combined car parking and access. Despite amalgamation being required in some instances, the existing cadastral pattern, which is mainly fine grained in pattern, forms part of the historic character of the area and is usually appropriate to be retained.

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.

Objectives

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.

Controls

C5. 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.

NB Properties located in the surrounding streets do not form part of the streetscape context, and are therefore not taken into account to determine the prevailing subdivision pattern.

C6. Proposed lots must be of a size, and have dimensions to enable, the siting and construction of a dwelling and ancillary buildings that:

i. Protect any natural or cultural features, including heritage items and their curtilage;

ii. Acknowledge site constraints such as terrain or soil erosion;

iii. Address the street;

iv. Minimise impact on neighbours’ amenity including access to sunlight, daylight, privacy and views;

v. Provide usable outdoor open space;

vi. Provide activities for relaxation, recreation, outdoor dining and children's play areas; and

vii. Provide convenient pedestrian, bicycle and motor vehicle access and parking.

C7. Subdivision or site amalgamation must not compromise the setting of any existing building on the site or the setting of adjoining sites.

C8. Where a proposal for subdivision or site amalgamation involves the creation of new allotments, the development application must be accompanied by a conceptual building plan, demonstrating that the relevant DCP controls can be complied with.”

50. At par 11 of the joint report, Mr Chapman sets out the rationale he uses to assess the suitability of the proposed subdivision. These include the criteria presented in the following paragraphs.

51. Firstly, Mr Chapman acknowledges that, pursuant to cl 4.1 of the IWLEP - Minimum subdivision lot size, the site is not identified within the relevant Lot Size Map and hence no development standard for minimum subdivision area applies to the proposal.

52. Next, Mr Chapman notes that at 12 Dibble Avenue, the proposed Lots 1 and 2 each have the following characteristics:

1. A frontage of 7.62m.

2. A site area of 211.3sqm.

53. In comparison, at 1-13 Dibble Avenue, Mr Chapman notes the existing lots have the following characteristics:

1. Frontages ranging from 12m - 17.1m.

2. Site areas ranging from 367.1sqm - 822sqm.

54. At 2-10 Pilgrim Avenue, Mr Chapman notes the existing lots have the following characteristics:

1. Frontages ranging from 8m - 20m (where the 8m dimension occurs due to a trapezoidal lot at the head of the cul-de-sac).

2. Site areas ranging from 340sqm - 600sqm.

55. And lastly, at 49-55 Riverside Crescent, Mr Chapman notes the existing lots have the following characteristics:

1. Frontages ranging from 14m - 18m.

2. Site areas ranging from 380sqm - 520sqm.

56. At par 12 of the joint report, Mr Chapman then states:

“It is clear from the above assessment of the lot sizes in Dibble Avenue, Pilgrim Avenue and Riverside Crescent that the proposed lots are not characteristic of the prevailing cadastral pattern.”

57. A par 14 of the joint report, Ms Askin sets out her rationale and criteria for assessment of the suitability of the proposed subdivision beyond that described by Mr Chapman.

58. Pursuant to Part 9 of the MDCP, Ms Askin identifies the subject site as being situated within “Cooks River West (Precinct 28)”. She also notes:

“…the [M]DCP set outs 47 planning precincts, with each precinct having its own distinct character. Each section [of Part 9 of the MDCP] outlines this distinct character and provides a contextual basis for establishing appropriate types of development in association with other controls within the [M]DCP.”

59. Ms Askin continues, in par 18 of the joint report, to set out her view that Part 3.2.2 of the MDCP, control C5:

“…requires consistency with characteristics similar to the prevailing cadastral pattern of lots fronting the same street in terms of area, dimensions, shape and orientation. For the purpose of this control, the [M]DCP states that Council generally [Ms Askin’s emphasis] considers the ‘prevailing’ cadastral pattern to be the typical characteristics of up to ten allotments on either side of the subject site and the corresponding number of lots directly opposite the subject site. The use of the term generally allows for exceptions to be considered.”

60. Ms Akin next states, at par 19 of the joint report, that:

“…with the exception of the subject lot and the two immediately adjoining lots, Dibble Avenue is located in the Dulwich Hill Station South Precinct (Precinct 22) and subject to a different desired future character.”

61. Ms Askin uses par 20 of the joint report to compare the different attributes which make up the desired future character for Cooks River West (Precinct 28) and Dulwich Hill Station South (Precinct 22). It is Ms Askin’s position that the:

“…desired future character of the Cooks River West [P]recinct [28] is to preserve the predominately low and medium density residential character of the precinct (9.28.2 Point 8). This is reflected in the R2 zoning…”

62. And, similarly Ms Askin states that the:

“…opposite side of Dibble Avenue, which is located in the Dulwich Hill Station South [P]recinct [22], is zoned R1. Desired future characters for this precinct are to enhance the predominately mixed density residential character and provide a mix of housing (9.22.2 Point 1) and also to facilitate urban renewal with substantial increase in density as mixed development (9.22.2 Point 9).

…This combined with the R1 zone, which permits residential flat buildings and shop top housing, encourages amalgamation of sites and would change the prevailing pattern of subdivision along Dibble Avenue on the south-eastern side.”

63. In his oral evidence and under cross examination, Mr Chapman was taken to MDCP Part 3.2.2 objective O3, which states “To retain the prevailing cadastral character of the street.” It was put to Mr Chapman that the objective - by seeking “to retain” - is self-defeating and would not permit any change to the cadastral pattern. Mr Chapman explained that in his view, the objective “to retain” is achievable with a potential subdivision, depending on the characteristics of the proposed lots upon subdivision.

64. Mr Chapman also accepted that the cadastral pattern is generally an “invisible line” not discernible to the casual observer of the streetscape. He further noted that the particular phrasing of control C5 does not direct the reader to questions of built form, effectively leaving consideration of the resultant cadastral pattern to an isolated assessment of the pattern of lot boundaries within a particular frame of reference. Mr Chapman stated his view that “cadastre is not a streetscape issue.”

65. Next in his oral evidence, Mr Chapman turned to the question of the most appropriate frame of reference for the consideration of the prevailing cadastral pattern. Mr Chapman stated that he was guided by the Part 3.2.2 control C5 of the MDCP, specifically 10 lots either side of and opposite the subject site, notwithstanding the presence of an IWLEP land use zone boundary (between R1 and R2 zones) and a MDCP Planning Precinct boundary (between Precincts 22 and 28) running along Dibble Avenue identified by Ms Askin.

66. In support of this position, Mr Chapman pointed out that the precinct controls contained at Part 9 of the MDCP “do not address subdivision”.

67. In oral evidence, Ms Askin set out her view in support of drawing a “tighter net” to determine the appropriate frame of reference, choosing to attribute particular significance to the land use zone and Planning Precinct boundaries and thereby limit this frame of reference to the “immediate vicinity” of the site.

68. In Ms Askin’s view, this “immediate vicinity” is limited to the two immediately adjacent lots at 10 Dibble Avenue and 47 Riverside Crescent, where no discernible or consistent pattern is evident, and where the terms of control C5 of Part 3.2.2 of the MDCP discount these two adjacent lots from consideration since they each address a different street to that of the subject site (being Pilgrim Avenue and Riverside Crescent respectively).

69. It was next put to Mr Chapman that some renewal and transition is evident along the opposite side of Dibble Avenue, to which he agreed, noting it was more prevalent closer towards Dulwich Hill Station.

70. Similarly, Ms Askin agreed that some transition is in evidence along the opposite side of Dibble Avenue, albeit that the relevant controls for residential apartment buildings are quite “modest”.

71. Mr Chapman was asked if - in his view - the IWLEP creates FSR incentives for subdivision, to which he agreed. In this instance, the relevant FSR increases from 0.6:1 to 0.9:1 as a consequence of the proposed reduced lot size. However, Mr Chapman also qualified this view with the need for control C5 of Part 3.2.2 of the MDCP to be satisfactorily overcome.

72. It was put to Ms Askin that the relevant objectives of Part 3.2.2 of the MDCP do not support a change in the cadastral pattern of the degree proposed in the DA, given that objective O3 seeks to “retain” the cadastral pattern and given that objective O5 seeks to ensure that subdivision “reflects” and “reinforces” the cadastral pattern.

73. It was also put to Ms Askin that a consistent cadastral pattern is evident along Dibble Avenue at numbers 2, 4, 6, 8 and 10, and at numbers 1, 3, 5 and 7.

74. Ms Askin agreed that this pattern is consistent but also offered a qualification. In further response, she set out her view that given the existence of the Precinct Planning boundary, the land use zone boundary, the break in Dibble Avenue created by Pilgrim Avenue, and the fact that some transition is evident on the opposite side of Dibble Avenue consistent with the R1 zone, that the appropriate frame of reference for control C5 should be limited to the two immediately adjacent lots.

75. It follows - in Ms Askin’s view - that in this particular set of circumstances, with a tightly limited frame of reference, where no discernible or consistent cadastral pattern is evident, that the controls “invite subdivision" in a form reflected in the DA and consistent with the terms of Part 3.2.2 of the MDCP.

Findings

76. I am now satisfied that the amended DA may be granted development consent, subject to appropriate conditions of consent. In deciding this course, I set out my reasons in the following paragraphs.

77. In their respective written submissions, the parties agree the dispute in these proceedings is a narrow one.

78. The Respondent frames the question as whether or not the proposed Torrens title subdivision “is appropriate in the circumstances”, while the Applicant sets it out as whether or not the proposed Torrens title subdivision “is acceptable in the context of the planning controls which must be determined having regard to the objectives of the EPA Act and IWLEP.”

79. In closing submissions for the Respondent, Ms Marsland stated that the Court should accept that - in the absence of a development standard for minimum lot size (pursuant to cl 4.1 of the IWLEP) - the MDCP stands as a supplement to the IWLEP and should guide the assessment of the proposed subdivision.

80. Ms Marsland then submits that Part 3.2.2 of the MDCP fills the key role in this assessment (at objectives O3 and O5 and also at control C5), where the question before the Court should be further limited to a question of “area” and “dimensions”.

81. Ms Marsland submits that a prevailing cadastral pattern is in evidence along Dibble Avenue within a frame of reference of ten lots, at numbers 2, 4, 6 and 8, and at numbers 1, 3, 5 and 7, and further notes that Ms Askin accepted this during oral evidence under cross examination.

82. In written submissions, Ms Marsland’s elaborates on this point, noting:

“Ms Askin [has] misapplied [MDCP Part 3.2.2 control] C5 by taking into consideration irrelevant matters, such as the ‘break’ in Dibble Ave caused by Pilgrim Ave; Dibble Avenue being at the interface of two precincts (Precincts 22 and 28), and two zones (R2 and R1); and a personal ‘belief’ in a future transition of the street, such that the street has, or would have, no identifiable cadastral pattern at all. Together, these factors established, to her mind, that the prevailing cadastral pattern presented by 1-8 and 12 Dibble, was irrelevant. This is despite C5 specifically calling for those very allotments (1-8 Dibble Ave) to be taken into consideration, being within 10 allotments of the subject site.”

83. Again in written submissions, Ms Marsland states that:

“The Applicant has failed to establish that the proposed lots 1 and 2 are consistent with the prevailing cadastral pattern in Dibble Ave, presented by 1 – 8 and 12 Dibble Ave, in terms of area (size) and dimension (width)…

…the proposed lots are both too small and too narrow and thereby fail to retain, reflect, and reinforce the prevailing cadastral pattern of the street. A flexible approach to C5 does not mean an abandonment of C5.”

84. In its essence, the Respondent’s position is that the Court should apply determinative weight to the detailed provisions of Part 3.2.2 of the MDCP in the assessment of the proposed subdivision.

85. In contrast, the Applicant’s position is that the MDCP is not an environmental planning instrument, but is designed to supplement the IWLEP and facilitate permissible development by applying appropriate flexibility in the assessment of the DA.

86. To this end, Mr Vergotis submits:

“Of equal importance to the Court's determination of this appeal is the relevant provisions set out in s 4.15(3A) of the EPA [Act] which of itself is designed to highlight the importance of looking to the objects of a planning scheme to arrive at a decision that clearly promotes the purpose of the scheme, rather than finding fault with a development because it does not meet a requirement under a subordinate development control plan.”

87. Section 4.15(3A) of the EPA Act addresses development control plans specifically and is expressed in the following terms:

(3A) Development control plans 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

…

88. Mr Vergotis then submits that s 3.42 of the EPA Act further clarifies the appropriate weight to be given to the MDCP in the circumstances of this particular case.

89. Section 3.42 of the EPA Act is expressed in the following terms:

3.42 Purpose and status of development control plans (cf previous s 74BA)

(1) The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development—

(a) giving effect to the aims of any environmental planning instrument that applies to the development,

(b) facilitating development that is permissible under any such instrument,

(c) achieving the objectives of land zones under any such instrument.

The provisions of a development control plan made for that purpose are not statutory requirements.

…

90. Mr Vergotis also notes the DA’s consistency with the aims of the IWLEP, including at cl 1.2(2) - Aims of Plan:

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

…

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

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

…

91. Mr Vergotis also notes the DA’s consistency with the objectives of the R2 Low Density Residential zone as set out at cl 2.3 of the IWLEP, including:

1 Objectives of zone

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

…

• To provide residential development that maintains the character of built and natural features in the surrounding area.

92. In a similar vein, Mr Vergotis notes the DA’s consistency with the objectives of cl 4.1 of the IWLEP - Minimum subdivision lot size, including:

(1) The objectives of this clause are as follows—

 (a) to ensure lot sizes cater for a variety of development,

…

 (c) to ensure lot sizes deliver high quality architectural, urban and landscape design,

 …

93. In the particular circumstance of this matter, I find that Part 3.2.2 of the MDCP is a useful guide to proposed development up to a point, but it must be applied flexibly and read in conjunction with other relevant provisions of the IWLEP and MDCP.

94. Together the IWLEP and MDCP clearly anticipate the prospect of subdivision as a means of achieving these documents’ respective aims and objectives, and as a logical outcome of their various controls.

95. I accept that the prevailing cadastral pattern - although not always perceptible to the casual observer - is important and does imbue a locality with a particular, often distinctive, urban character.

96. Further, although the cadastral pattern remains an “invisible line” it influences a significant number of urban, landscape and built form characteristics, and does not exist in complete abstraction from the observable physical features of a particular locality.

97. In his oral evidence, Mr Chapman noted that control C5 at Part 3.2.2 of the MDCP does not direct the reader to consider questions of built form. For this reason, Mr Chapman undertook an assessment of the proposed subdivision considering the pattern of cadastral lot boundaries within a particular frame of reference, and guided by control C5, did so in isolation of the merits of the proposed built form.

98. While I generally agree with the frame of reference established by Mr Chapman, I have undertaken my assessment of the proposed subdivision alongside a consideration of the proposed built form provided with the DA and the collective merits that may accrue from the DA when considered more holistically.

99. This is partly because - despite Part 3.2.2 of the MDCP largely being expressed in terms of the cadastral and subdivision pattern - I am not persuaded that the consideration of the merits of the proposed subdivision can reasonably be undertaken in isolation from the question of the built form that might accompany it.

100. I note specifically that control C8 of Part 3.2.2 of the MDCP does establish a nexus between the proposed subdivision and the need to consider an associated built form:

“C8 Where a proposal for subdivision or site amalgamation involves the creation of new allotments, the development application must be accompanied by a conceptual building plan, demonstrating that the relevant DCP controls can be complied with.”

101. In the particular circumstance of this matter, the DA fully describes the built form that would accompany the proposed subdivision and the conciliation conference preceding the hearing was useful in resolving all contentions dealing with the question of the appropriateness of this proposed built form, including its consistency with other controls set out in the IWLEP and MDCP.

102. Undertaking my assessment, I am satisfied that - when considering the merits of the proposed subdivision alongside those of the proposed built form - the DA is consistent with the relevant aims of the IWLEP, meets the objectives of the R2 low density residential land use zone as set out in the IWLEP, and meets the objectives of the minimum subdivision lot size development standard as set out in the IWLEP.

103. I also make the following observations about the relationship between the proposed subdivision and associated built form in the context of this particular matter:

1. The DA is for a pair of semi-detached dwellings located toward the centre of the parent lot.

2. All other contentions regarding building bulk, scale, overshadowing, visual privacy and car parking are now agreed by the experts to have been adequately resolved, with the proposed DA representing an acceptable built form and exhibiting an acceptable streetscape presentation.

3. Key to resolving these other contentions is the final amended built form adopting an appropriate setback regime to each of the parent lot’s boundaries.

4. Hence, the two semi-detached dwellings - which present to the street and neighbouring properties as a single, united building form with front, side and rear setbacks generally consistent with the neighbouring dwellings - provide an appropriate urban fit in the local context and mitigate against resultant environmental impacts to an acceptable extent.

5. In this sense, the DA seeks to demolish an existing single-storey building (a single dwelling) on the parent site and replace it with a two-storey building (comprising two semi-detached dwellings) that generally replicates the original setback regime and comfortably complies with the relevant height of building development standard of 9.5m.

6. Given the resultant lot widths (7.62m) and areas (211.3sqm), it is not likely any alternative built form outcome, other than two semi-detached dwellings, could be associated with the proposed subdivision in the future (at least under the current suite of development controls).

7. For these reasons, I am satisfied the DA, including the proposed subdivision, is appropriate and will maintain a familiar pattern of built form along Dibble Avenue consistent with the prevailing streetscape presentation evident in the vicinity.

104. Part 3.2.2 of the MDCP, like many detailed guides to development, is not always able to anticipate the detailed set of considerations accompanying each and every site. I find that the issues, objectives and controls set out in Part 3.2.2 are material, but when applied, must be able to be applied flexibly and responsively to the evident contextual conditions.

105. The central issue resulting in my determination of this matter lies in assessing the suitability of the proposed Torrens titled subdivision in the context of a more holistic consideration of the suite of planning controls, and in making this finding, I generally prefer the evidence of the Applicant.

106. For the reasons set out above, I propose to uphold the appeal and grant consent to the amended DA. Prior to final orders being made, the Court directs the parties to amend certain documents that will accompany this future grant of consent.

107. I note that the BASIX certificate, tendered as Tab 9 within Exhibit A, accompanied the original DA and shall be amended to reflect the final amended architectural drawings forming Exhibit R in these proceedings.

108. Similarly, the draft conditions of consent forming Exhibit 6 in these proceedings shall be updated to reflect the documents for which the Court granted leave to the Applicant to rely upon during the second day of the hearing.

Directions

109. The Court directs that:

1. The Applicant is to prepare and file with the Court an amended BASIX certificate, reflecting the final amended Development Application (DA) as described in the Issue E plans tendered as Exhibit R, within 7 days.

2. The Respondent is then to amend Condition 1 of the draft conditions of consent tendered as Exhibit 6 to reflect the Applicant’s final amended DA, including the BASIX certificate noted above and the Issue E drawings tendered as Exhibit R, and is then to file these conditions of consent with the Court within a further 7 days.

3. Upon receipt of the amended BASIX certificate (from the Applicant) and amended conditions of consent (from the Respondent), the Court will give consideration to the making of appropriate final orders.

………………………

M Pullinger

Acting Commissioner of the Court

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Decision last updated: 29 August 2023