Dallad Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1021

Dallad Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1021

The proposal was objectively and properly characterised as dual occupancy (attached) development because, at the time of assessment, the site was a single lot and the proposal was for two attached dwellings on that lot together with subdivision. Clause 6.5 of Woollahra Local Environmental Plan 2014 prohibited Torrens title subdivision that would create separate titles for each of the two dwellings resulting from that dual occupancy development, and cl 6.5 was a prohibition rather than a development standard. The built form and other aspects of the proposal were acceptable, so consent could be granted on the basis of strata subdivision conditions rather than Torrens title subdivision.

Jurisdiction
Australia
Judgment Date
18 January 2023
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No. 59/2022 / Final Determination After Hearing; Appeal Upheld and Consent Granted Subject to Conditions
Outcome
Appeal upheld; Development Application No. 59/2022 determined by grant of consent subject to conditions.
Legal Topics
['characterisation of Development' 'dual Occupancy (attached)' 'semi Detached Dwellings' 'torrens Title Subdivision' 'strata Subdivision' 'minimum Lot Size Development Standard' 'prohibition on Subdivision Creating Separate Titles for Dual Occupancy Development']
['planning and Environment Law' 'development Consent' 'subdivision'] ['characterisation of Development' 'dual Occupancy (attached)' 'semi Detached Dwellings' 'torrens Title Subdivision' 'strata Subdivision' 'minimum Lot Size Development Standard' 'prohibition on Subdivision Creating Separate Titles for Dual Occupancy Development']

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No. 59/2022 / Final Determination After Hearing; Appeal Upheld and Consent Granted Subject to Conditions

Legal Issues

  1. 1 ['Whether the proposal was properly characterised as two semi-detached dwellings or as dual occupancy (attached) development.' 'Whether cl 6.5 of Woollahra Local Environmental Plan 2014 prohibited Torrens title subdivision creating separate titles for the two dwellings.' 'Whether cl 6.5 of Woollahra Local Environmental Plan 2014 was a prohibition or a development standard amenable to cl 4.6.' 'Whether the proposal, other than the Torrens title subdivision, was acceptable and met the jurisdictional pre-requisites for consent.']

Ratio Decidendi

The proposal was objectively and properly characterised as dual occupancy (attached) development because, at the time of assessment, the site was a single lot and the proposal was for two attached dwellings on that lot together with subdivision. Clause 6.5 of Woollahra Local Environmental Plan 2014 prohibited Torrens title subdivision that would create separate titles for each of the two dwellings resulting from that dual occupancy development, and cl 6.5 was a prohibition rather than a development standard. The built form and other aspects of the proposal were acceptable, so consent could be granted on the basis of strata subdivision conditions rather than Torrens title subdivision.

Court Disposition

Appeal upheld; Development Application No. 59/2022 determined by grant of consent subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development Application No. 59/2022 for the demolition of the existing dwelling, construction of two semi-detached dwellings, associated landscaping and swimming pools, and Strata subdivision into two lots, at 41 Carlotta Road, Double Bay, is determined by the grant of consent, subject to...