Maloney v Inner West Council [2018] NSWLEC 1269

Maloney v Inner West Council [2018] NSWLEC 1269

The appeal was dismissed because the proposed subdivision, specifically the creation of Lot 12, did not have characteristics similar to the prevailing cadastral pattern, particularly regarding lot depth and area, and therefore did not comply with Control C5 of the Marrickville DCP 2011. The alternative solution proposed did not achieve the DCP's objectives to retain the prevailing cadastral character or reinforce the predominant subdivision pattern, and as such, flexibility should not be exercised.

Jurisdiction
Australia
Judgment Date
06 June 2018
Procedural Posture
Development Application Appeal / Merits Hearing
Outcome
Appeal dismissed; Development Application refused
Legal Topics
['development Application' 'subdivision Controls' 'development Control Plan' 'environmental Planning' 'cadastral Pattern' 'streetscape' 'interpretation of Development Controls']
['planning and Environment'] ['development Application' 'subdivision Controls' 'development Control Plan' 'environmental Planning' 'cadastral Pattern' 'streetscape' 'interpretation of Development Controls']

Case Brief

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Procedural Posture

Development Application Appeal / Merits Hearing

Legal Issues

  1. 1 ['Whether the proposed subdivision is compliant with Marrickville DCP 2011 s3.2.2, Control C5 in relation to prevailing cadastral pattern' 'Whether the proposed development offers an alternative solution achieving the objects of C5 despite non-compliance' 'Whether the overshadowing, presentation and streetscape impacts are acceptable (not determined)']

Ratio Decidendi

The appeal was dismissed because the proposed subdivision, specifically the creation of Lot 12, did not have characteristics similar to the prevailing cadastral pattern, particularly regarding lot depth and area, and therefore did not comply with Control C5 of the Marrickville DCP 2011. The alternative solution proposed did not achieve the DCP's objectives to retain the prevailing cadastral character or reinforce the predominant subdivision pattern, and as such, flexibility should not be exercised.

Court Disposition

Appeal dismissed; Development Application refused

Orders

  • ['The appeal is dismissed.' "The Applicant's Development Application (DA201600410) for demolition of a garage, Torrens title subdivision of land from one lot into two lots, and construction of a two storey dwelling, is determined by refusal." 'The exhibits are returned.']