Posted on July 18, 2021 by Megan Hawley
Subdivisions and Development Standards
In the recent case of Elimatta Pty Ltd v Read and Anor  NSWLEC 75, Robson J of the Land & Environment Court found that the criteria to be met in a clause of the Yass Valley Local Environmental Plan 2013 (YLEP) to enable subdivision on certain land despite a breach of the minimum lot size controls for that land, were not development standards.
Clause 4.1 of the YLEP set minimum lot sizes for subdivision of land by reference to a lot size map. Clause 4.1B(3) then provided that:
(3) Despite clause 4.1, development consent may be granted to subdivide land in Zone RU1 Primary Production or Zone RU2 Rural Landscape if—
(a) the average area of all the lots created will be at least 40 hectares, and
(b) none of the lots created will have an area of less than 20 hectares, and
(c) none of the lots created will have an area greater than 70 hectares.
The subdivision proposed breached the minimum lot size development standard in clause 4.1, and could also not be granted consent under clause 4.1B(3) as the average area of all lots was proposed to be less than 40ha.
It was not possible for the applicant to make a request under clause 4.6 of the YLEP in respect of the breach of the minimum lot size standard in clause 4.1, as clause 4.6(6) prevented such a request in the circumstances.
The applicant sought, however, to argue that a request could be made under clause 4.6 in respect of the breach of clause 4.1B(3)(a) by arguing that the requirement in that clause that the average area of all lots be at least 40ha was a development standard.
Robson J found, however that the criteria in 4.1B(3) were not development standards.
“Development standards” is defined in s1.4 of the Environmental Planning & Assessment Act 1979 (EPA Act) as “provisions of an environmental planning instrument by or under which requirements are specified or standards are fixed in respect of any aspect of that development”. Robson J found that clause 4.1B(3) “does not itself specify or fix anything – rather it provides an exception to those requirements which are otherwise specified by cl 4.1(3)”.
His Honour considered it relevant that clause 4.1B(3) did not operate alone, rather it only had effect in connection with the operation of clause 4.1.
He described the criteria in paragraphs (a)-(c) as ‘integers in a formula which determines the availability of the exception to the grant of development consent’. If those criteria are not met, it is a not a development standard which is breached, rather there is a failure to obtain the benefit of the exception.
His Honour went on to find that other provisions of the YLEP in respect of subdivision which also were expressed as exceptions to the minimum lot size standard also did not contain development standards.
As a result, clause 4.6 of the YLEP was unavailable to deal with the breach of clause 4.1B(3)(a). Clause 4.6 could only operate in respect of the development standard, being the minimum lot size development standard in clause 4.1 (although in the circumstances of this case, clause 4.6(6) of the YLEP meant the applicant could also not rely on clause 4.6).
Whilst the clause being considered in this case is not contained in all standard instrument local environmental plans, it is common for such plans to contain a suite of clauses dealing with subdivision which include provisions allowing exceptions to development standards in certain zones and in specific circumstances, in addition to containing clause 4.6. Based on the decision in this case, none of the criteria in such clauses which need to be satisfied in order to rely on the exception will be considered to be development standards.
The decision in Elimatta can be found here .
However, caution needs to be exercised in determining whether a clause operates as an exception to a development standard. In another very recent case R.I.G. Consulting Pty Ltd v Queanbeyan-Palerang Regional Council  NSWCA 130 the Court of Appeal was dealing with a similar clause regarding subdivision that read:
“Despite clause 4.1, development consent may be granted for the subdivision of land to which this clause applies, under the Community Land Development Act 1989, if—
(a) the average size of all the lots created by the subdivision will not be less than the minimum size shown on the Lot Size Map in relation to that land, and
(b) none of the lots created by the subdivision will be less than 1 hectare, and
(c) the lot comprising the association property (within the meaning of that Act) will include land identified as having significant ecological, agricultural or cultural values.”
On its face, this clause appears to grant an exception to the minimum lot size in clause 4.1 and appears very similar to that being considered in Elimatta. However, when the suite of clauses regarding subdivision in the relevant LEP were considered together it was clear that clause 4.1 did not impose any minimum lot size standard in respect of subdivision under the Community Land Development Act 1989 (CLD Act) . The clause set out above only applied to subdivision under the CLD Act. Properly construed, therefore, this clause did not operate as an exception to a development standard, but itself imposed the only standards or requirements in respect of subdivision under the CLD Act. If not for this clause, there would have been no limitations or requirements in respect of such subdivisions. Paragraphs (a)-(c) were therefore development standards.
It was noted that the inclusion of the words ‘despite clause 4.1’ in the clause was poor drafting.
It is therefore important to carefully consider whether a clause properly operates as an exception to development standards in order to determine if the criteria in the clause are development standards.
The decision of the Court of Appeal in R.I.G can be found here.
If you would like to discuss the impact of the decisions, or any other matter relating to this article, please leave a comment, or call Megan Hawley on 02 8235 9703.