Posted on July 13, 2017 by Stuart Simington and
Does the minimum lot size development standard apply to strata subdivision?
It has been widely assumed that the minimum lot size development standard in clause 4.1 of the Standard Instrument – Principle Local Environmental Plan (‘Standard LEP‘) does not apply to strata subdivision.
However the Land and Environment Court has held that this is not the case. Unless the proposed subdivision is of a lot in an existing strata plan or community development scheme, the proposed subdivision will be subject to the minimum lot size standard.
The case of DM & Longbow Pty Ltd v Willoughby City Council  NSWLEC 1358 concerned a development application seeking consent to subdivide an existing two-storey house into two dual occupancy units. The minimum lot size for the land imposed by clause 4.1 of the Willoughby Local Environmental Plan 2012 (‘WLEP‘) was 650 m². The proposed subdivision would have resulted in two strata lots each having an area of approximately 300m².
The question for the Court was whether the minimum lot size development standard in clause 4.1 of WLEP applied to the proposed strata subdivision.
Clause 4.1 of WLEP relevantly provided that:
‘(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.
(3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.
(4) This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme.’
The Applicant submitted that the minimum lot size development standard contained in clause 4.1(3) of WLEP was not directed to strata subdivision but rather to the ordinary subdivision of land and that clause 4.1(4) should be read as applying to the proposed strata subdivision thus having the effect of making it exempt from compliance with the minimum lot size development standard.
The Council, on the other hand, argued that because the definition of ‘subdivision of land‘ contained in s4B (2) (b) of the EPA Act includes ‘the procuring of the registration in the office of the Registrar-General… of a strata plan or a strata plan of subdivision‘, it must follow that the words ‘subdivision of any land‘ appearing in cl4.1 (2) of WLEP operated to make the proposed strata subdivision subject to the minimum lot size development standard in clause 4.1(3) of WLEP unless it was exempted by clause 4.1(4).
Despite some reluctance about the lack of any planning logic to cl4.1(4), Commissioner Dixon agreed with the Council’s interpretation.
The Court held that the exemption in clause 4.1(4) only applies where there is an existing strata plan. A strata plan only comes into existence when the requirements set out in the Strata Schemes Development Act 2015 are satisfied. As there was no existing strata plan in the present case, the proposed strata subdivision did not relevantly involve the subdivision of any individual lot or lots in a strata plan within the meaning of clause 4.1(4) of WLEP.
The decision was affirmed on appeal by Preston CJ in December 2017. See his decision here.
In light of the decision, it is clear that the following rules apply to strata subdivision in any case where the applicable planning controls are based on the Standard LEP:
- if Part 6 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (‘Codes SEPP‘) applies to a strata subdivision, whether involving the registration of a strata plan or a strata plan of subdivision, the subdivision can be granted development consent as complying development and the minimum lot size standard in clause 4.1 of the Standard LEP does not apply,
- if Part 6 of the Codes SEPP does not apply and the proposed strata subdivision involves the registration of a strata plan in relation to a lot, a development application must be made and the minimum lot size development standard in clause 4.1 of the Standard LEP will apply,
- if Part 6 of the Codes SEPP does not apply and the proposed strata subdivision involves the registration of a strata plan of subdivision in respect of a lot or lots in an existing strata plan, a development application must be made and the minimum lot size development standard in clause 4.1 of the Standard LEP will not apply by virtue of clause 4.1(4).
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