In the recent decision of Rudder Developments Two Pty Ltd v Inner West Council [2017] NSWLEC 1132, the Land and Environment Court upheld the planning principle that where the proposed allotments are smaller than usual, environmentally sensitive or where significant impacts on neighbours is likely – and careful design to minimise these impacts is required – it is appropriate for the consent authority to require the subdivision application to be accompanied by a development application for the proposed dwellings.

Rudder Developments Two Pty Ltd v Inner West Council [2017] NSWLEC 1132

In Rudder Developments, the Developer sought approval for a six lot subdivision at Edna Street, Lilyfield, via a subdivision application made to Inner West Council (made up of the former local government areas of Ashfield, Leichhardt and Marrickville).  The development site was zoned R1 General Residential under Leichhardt Local Environment Plan 2013 (LEP) and the proposal was permissible with consent.

The Developer contended that the proposed lot sizes, ranging from 200 sqm to 214.08 sqm, were consistent with the LEP and generally consistent with the desired future character of the area.  There was no need, it argued, for the subdivision application to be accompanied by a separate development application setting out the respective built form outcomes that “may” be suitable for the respective lots.

The Council contended that the design of the proposed subdivision was “inappropriate with regard to the site’s context and would result in an uncharacteristic future development.”  The proposed lot sizes were the “minimum lot size” available under the LEP and were not consistent with “the size and pattern of lots in the area and there is uncertainty whether the allotments would be compatible with the desired future character of the area.”

Parrot planning principle

Both parties relied upon the “Parrot planning principle” in support of their positions.  That principle was established by (former) Senior Commissioner Roseth in the decision of Parrott v Kiama [2004] NSWLEC 77.  It was expressed in the following way:

[17] When should a subdivision application include information on the buildings to be built on the resulting allotment(s)? It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them.

The Court observed that the Commissioners of the Court have considered the planning principle set out in Parrott and have expressly concluded that that planning principle remains relevant and should be retained: Revelop Projects Pty Limited v Parramatta City Council [2014] NSWLEC 1167 [30]-[31].

The relevant controls

The Court turned to the relevant planning controls pertaining to the site, acknowledging in the first instance that, technically, the lot sizes complied with the minimum lot size available under the LEP.  However, that criteria was but one element in the planning matters to be considered.  Relevantly, the Court observed:

  • lot sizes must be “able to accommodate development that is consistent with relevant development controls” and must be “capable of supporting a range of development types”: Objectives at cl 4.1 of the LEP.
  • new allotments shall be consistent with the prevailing subdivision pattern in the neighbourhood: Leichhardt DCP, Part C1.6, Condition 2.
  • where the subdivision will result in either a vacant site or demolition of an existing building, the application must also include a development application for a new dwelling/s: Leichhardt DCP, Part C1.6, Condition 11.
  • new allotments must “promote the consistent rhythm in the residential streetscapes created by the regular allotment sizes, predominance of detached dwellings and predominance of hipped and gabled roof forms”: Leichhardt DCP, Part C2.2.4, Control 3.

Findings

The Court formed the view that “the future development of each lot is likely to result in amenity impacts on the adjoining lots”.  For that reason, the Court held that it was “appropriate that the proposal includes a development application for the development proposed on each lot.”

[36] I accept that dividing the site into six lots is both permissible and achievable; however, I accept the Council’s submission that the constraints of the site dictate a requirement for a development application for the proposed dwellings on those lots to ensure the equitable distribution of amenity across the six lots, which can only be achieved by careful and skillful design of the dwellings in unison.

The Court adopted the planning principle that a subdivision application “should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them.”

The appeal was dismissed, with an implicit invitation to the Developer to resubmit the subdivision application at a later point in time together with a separate development application addressing the built form outcomes.

Comment

The Parrott planning principle is essentially a cautionary principle designed to ensure that lot sizes and lot configurations approved by a subdivision application are not, subsequently, going to produce unacceptable environmental impacts on adjoining properties as a consequence of the size and configuration of the lots.  As the trend towards permissible smaller lot sizes continues (as one of many solutions to Sydney’s current housing shortage), it might be expected that this principle will be applied more frequently.