Da Silva v Marrickville C [2006] NSWLEC 113

Da Silva v Marrickville C [2006] NSWLEC 113

Although the subdivision and attached dwellings were permissible with consent, the proposed subdivision into two narrow allotments would not continue the dominant subdivision pattern in terms of block width required by the DCP. The proposed terrace houses had roof forms, stepped alignment, bulk and massing inconsistent with the predominant streetscape and the adjoining older terraces, and the absence of on-site car parking would add to on-street congestion contrary to the DCP objectives. The proposal was therefore unsuitable and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
21 February 2006
Procedural Posture
Class 1 Appeal Concerning Refusal of a Development Application / Ex Tempore Judgment After Hearing
Outcome
Appeal dismissed; Court found in favour of the respondent.
Legal Topics
['development Application' 'subdivision' 'residential Development' 'streetscape Character' 'solar Access' 'on Site Car Parking' 'public Interest']
['planning and Environment Law'] ['development Application' 'subdivision' 'residential Development' 'streetscape Character' 'solar Access' 'on Site Car Parking' 'public Interest']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning Refusal of a Development Application / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether subdivision of the existing allotment into two allotments was inconsistent with the prevailing subdivision pattern and building character of Constitution Road under Development Control Plan No. 35.' 'Whether the proposed two-storey terrace houses were in keeping with the established character of the street and related appropriately to adjoining terraces.' 'Whether the proposed development would cause unacceptable loss of solar access to No. 14 Constitution Road.' 'Whether the failure to provide on-site car parking complied with Development Control Plan No. 19 and Development Control Plan No. 35.' 'Whether the proposal was in the public interest having regard to objecting submissions.']

Ratio Decidendi

Although the subdivision and attached dwellings were permissible with consent, the proposed subdivision into two narrow allotments would not continue the dominant subdivision pattern in terms of block width required by the DCP. The proposed terrace houses had roof forms, stepped alignment, bulk and massing inconsistent with the predominant streetscape and the adjoining older terraces, and the absence of on-site car parking would add to on-street congestion contrary to the DCP objectives. The proposal was therefore unsuitable and the appeal was dismissed.

Court Disposition

Appeal dismissed; Court found in favour of the respondent.

Orders

  • ['The Appeal is dismissed' 'The exhibits are returned except the exhibits 5,6,7,8,A and B.']