Threlfo v Inner West Council [2022] NSWLEC 1659

Threlfo v Inner West Council [2022] NSWLEC 1659

The proposed Lots 11 and 12 did not have characteristics similar to the prevailing cadastral pattern of lots fronting Hercules Street and Beach Road. They were significantly smaller in area, different in shape, much shorter in depth, and inconsistent in orientation when compared with the prevailing rectangular, deeper lots in the immediate locality. Existing built form from the approved dual occupancy was not relevant to determining the prevailing cadastral pattern under Control C5. Because the subdivision failed to reflect or reinforce the predominant subdivision pattern required by the Marrickville Development Control Plan 2011, consent should be refused and the appeal dismissed.

Jurisdiction
Australia
Judgment Date
30 November 2022
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 2021/0949 / Final Hearing and Judgment
Outcome
Appeal dismissed; Development Application DA 2021/0949 refused.
Legal Topics
['development Application for Torrens Title Subdivision' 'prevailing Cadastral Pattern' 'development Control Plan Objectives and Controls' 'floor Space Ratio and Site Cover']
['planning and Environment' 'development Control' 'subdivision'] ['development Application for Torrens Title Subdivision' 'prevailing Cadastral Pattern' 'development Control Plan Objectives and Controls' 'floor Space Ratio and Site Cover']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 2021/0949 / Final Hearing and Judgment

Legal Issues

  1. 1 ['Whether the proposed subdivision is consistent with and has characteristics similar to the prevailing subdivision or cadastral pattern of the immediate locality.' 'Whether the subdivision should be approved where the proposed lots would allow an increase in floor space ratio resulting in development said not to be consistent with predominantly low-density residential development in the immediate locality.' 'Whether existing approved and constructed dual occupancy built form is relevant to determining the prevailing cadastral pattern.']

Ratio Decidendi

The proposed Lots 11 and 12 did not have characteristics similar to the prevailing cadastral pattern of lots fronting Hercules Street and Beach Road. They were significantly smaller in area, different in shape, much shorter in depth, and inconsistent in orientation when compared with the prevailing rectangular, deeper lots in the immediate locality. Existing built form from the approved dual occupancy was not relevant to determining the prevailing cadastral pattern under Control C5. Because the subdivision failed to reflect or reinforce the predominant subdivision pattern required by the Marrickville Development Control Plan 2011, consent should be refused and the appeal dismissed.

Court Disposition

Appeal dismissed; Development Application DA 2021/0949 refused.

Orders

  • ['The appeal is dismissed.' 'Development Application DA 2021/0949 for the subdivision of Lot 1 DP 1156430 known as 7 Hercules Street, Dulwich Hill into two Torrens title lots is refused.' 'All Exhibits, except Exhibits 1 and 2, are returned.']