Brendan Howell v City of Canada Bay Council (No 2) [2005] NSWLEC 684

Brendan Howell v City of Canada Bay Council (No 2) [2005] NSWLEC 684

The proposed Torrens title subdivision would create two lots of 348m2 with frontages of 7.62m, which were significantly below the 450m2 minimum lot size and 14m frontage standards in the Drummoyne Comprehensive Development Control Plan 1999. The evidence showed the predominant subdivision pattern in the area consisted of allotments of around 700m2 with 14m frontage, so subdivision into lots around half that size would not reflect and reinforce that pattern as required by Objective O1 of Part 6.2. The existing allotment should therefore remain unsubdivided and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
30 November 2005
Procedural Posture
Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Concerning Development Consent for Demolition, Attached Dwellings and Torrens Title Subdivision / Judgment After Hearing
Outcome
Appeal dismissed; development application refused consent; costs reserved.
Legal Topics
['development Application' 'attached Dual Occupancy' 'torrens Title Subdivision' 'development Control Plan Compliance' 'minimum Lot Size and Frontage' 'site Suitability']
['planning and Environment Law' 'development Consent' 'subdivision'] ['development Application' 'attached Dual Occupancy' 'torrens Title Subdivision' 'development Control Plan Compliance' 'minimum Lot Size and Frontage' 'site Suitability']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Concerning Development Consent for Demolition, Attached Dwellings and Torrens Title Subdivision / Judgment After Hearing

Legal Issues

  1. 1 ['Whether it was appropriate to delete Condition 3 of Development Consent No 486/04 and permit Torrens title subdivision of the land having regard to the Drummoyne Comprehensive Development Control Plan 1999.' 'Whether the proposed subdivision had sufficient lot area and frontage to comply with the minimum allotment size and frontage controls in Part 6 of the Drummoyne Comprehensive Development Control Plan 1999.' 'Whether approval of the proposed subdivision would be inconsistent with the predominant subdivision pattern of the locality and set an unsatisfactory precedent.']

Ratio Decidendi

The proposed Torrens title subdivision would create two lots of 348m2 with frontages of 7.62m, which were significantly below the 450m2 minimum lot size and 14m frontage standards in the Drummoyne Comprehensive Development Control Plan 1999. The evidence showed the predominant subdivision pattern in the area consisted of allotments of around 700m2 with 14m frontage, so subdivision into lots around half that size would not reflect and reinforce that pattern as required by Objective O1 of Part 6.2. The existing allotment should therefore remain unsubdivided and the appeal was dismissed.

Court Disposition

Appeal dismissed; development application refused consent; costs reserved.

Orders

  • ['The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.' 'Development application No 486/04 lodged with the respondent council on 4 August 2004 to demolish the single dwelling, subdivide, erect attached dwellings at Lot 9, DP 7156, being No 400 Lyons Road, Russell Lea, is refused...