Event and Time
Event Description
A development application (DA 2021/0949) was submitted for the subdivision of a single lot located at 7 Hercules Street, Dulwich Hill, into two Torrens title lots. The case came before the court to determine whether this subdivision was consistent with the existing subdivision pattern of the area.
Application and Claims
- The applicant claimed the subdivision would not materially alter the existing development since a dual occupancy building had already been constructed on the property.
- They argued that the characteristics of the new lots remain similar to what has been approved by Council.
- The Council and objectors contended that the proposed subdivision was inconsistent with the existing cadastral pattern in the vicinity and would result in lots with dimensions that diverge from surrounding properties.
Judicial Decisions
- The appeal was dismissed, and the development application was refused.
- The court ordered the return of all exhibits except Exhibits 1 and 2.
Dispute Points and Legal Basis
Dispute Points
- Applicant's Arguments:
- The dual occupancy development already constructed would not present a material difference post-subdivision. - Provisions of the Development Control Plan (DCP) should be interpreted with flexibility due to existing approvals.
- Council's Position:
- The proposed subdivision would not adhere to the prevailing cadastral pattern, significantly differing in dimensions and orientation compared to surrounding properties. - Consistency with DCP Objective O5 and Control C5 was crucial, emphasizing the importance of existing lot configurations over potential built forms.
- Court's Consideration:
- The distinction between the built form and lot configuration was essential, with previous case law including Como v Marrickville CC highlighting the importance of lot configuration's stability compared to built structures. - Evidence from Mr. Chapman was preferred, supporting that the new lots would fail to reflect the established subdivision pattern.