Posted on April 23, 2018 by Liam Mulligan and Megan Hawley
Amendment of Minimum Subdivision Lot Size clauses in the Standard Instrument
The Standard Instrument – Principle Local Environmental Plan (‘Standard Instrument‘) has been amended to clarify that the minimum lot size development standard does not apply to either the subdivision of land by the registration of strata or community plans, or the subdivision of lots within an existing strata or community scheme.
This changes the position back to what many councils thought the position was before the Court’s decision in DM & Longbow Pty Ltd v Willoughby City Council  NSWLEC 1358 (Longbow).
In July 2017, we blogged about the Land and Environment Court’s decision in Longbow. You can read our blog here.
Clause 4.1(4) of the Standard Instrument previously provided that:
“This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme.”
The Court in Longbow held that the minimum lot size development standard in clause 4.1 of the relevant LEP (which was based on the Standard Instrument) did apply to the initial subdivision of land by way of registration of a strata plan, as clause 4.1(4) only excluded the application of the standard where the subdivision was of lots in an existing scheme, and not the subdivision of land by the initial registration of the strata plan.
In December 2017, Preston CJ affirmed the decision of Dixon C at first instance.
However, the Standard Instrument (Local Environmental Plans) Amendment (Minimum Subdivision Lot Size) Order 2018 (Order) amends clause 4.1 (4) so it states:
This clause does not apply in relation to the subdivision of any land:
(a) by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or
(b) by any kind of subdivision under the Community Land Development Act 1989.
This makes it unambiguously clear that the minimum lot size standard does not apply to a subdivision effected by the registration of a strata plan or community plan.
The Order also amends clause 4.1AA which continues to apply to community title schemes in certain zones despite the amended clause 4.1.
Under s 3.20(4) of the Environmental Planning and Assessment Act 1979, the amended clause 4.1 will immediately be incorporated into those LEPs around the state which include a declaration that they adopt the provisions of the Standard LEP. These LEPs will not require any further amendment to incorporate the amended clause 4.1.
However, the change will not apply to development applications lodged but not determined before the Order commenced. The Order commenced on 20 April 2018.