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1 August 2017 Court rules that the minimum lot size development standard applies to strata subdivision

By Cecilia Rose, Partner and Alyce Jefferys, Associate


Why is this decision important?

Many Applicants seek to strata subdivide multi dwelling housing or dual occupancies as a component of a development application, or after construction of the residential accommodation.  Some LEPs have specific provisions about strata subdivision in particular zones, however in this decision the focus was clause 4.1 of the Willoughby LEP 2012.  Clause 4.1 is adopted from the Standard Instrument – Principal Local Environmental Plan by most LEPs.  Commissioner Dixon held that unless a proposed subdivision is a lot of an existing strata plan, the proposed subdivision will be subject to the minimum lot size standard.


Background

The Applicant in these proceedings sought development consent from Willoughby City Council (Council) to subdivide an existing two-storey house into two dual occupancy units. Each unit had an area of 300m2. Clause 4.1 of the relevant local environmental planning instrument (Willoughby Local Environmental Plan 2012 (WLEP)) was 650m².


The Applicant's argument

The Applicant argued that clause 4.1 was directed to the subdivision of land, and not to strata subdivision.  It contended that clause 4.1(4) of WLEP did not apply to proposed strata subdivision and clause 4.1(4) of WLEP had the effect of making the proposed strata subdivision exempt from the minimum lot size development standard.


The Council's argument

Council submitted that based on the Applicant's construction of clause 4.1, any development application could overcome the minimum subdivision lot size control for dual occupancy by proposing strata subdivision.  Council focussed on the words "individual lots in a strata plan" in clause 4.1(4) also relied on the definition of 'subdivision of land' in section 4B(2)(b) of the Environmental Planning and Assessment Act 1979 (EP&A Act) to assert that clause 4.1 was directed to both Torrens title subdivision and strata subdivision.


Court's decision

The Court agreed with the Council's argument. Commissioner Dixon ("regrettably" at [35]) determined that because the Applicant did not have an existing strata plan, the proposed strata subdivision did not meet the exemption under the minimum lot size standard and was therefore prohibited by the provisions under the WLEP.


Issues raised by the Court's Decision

We are aware that Applicants and Consent Authorities have previously interpreted clause 4.1(4) to mean that clause 4.1 did not apply to strata subdivision.  This decision is contrary to that approach. 

It is unclear how the Court might interpret a situation where there was a proposal to strata subdivide a dual occupancy, where the individual lot sizes met the minimum lot size criteria, but a common lot for the strata subdivision did not. 

Some LEPs have specific provisions that permit strata subdivision of dual occupancies and multi dwelling housing.  These provisions should be considered in light of the Court's interpretation of clause 4.1(4) in Longbow.

This decision has implications for many Applicants and Consent Authorities.  We will watch this space and provide you with any updates. 

 

Cecilia Rose, Partner  |  Phone: +61 2 9233 5544  |  Email: cxr@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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