Posted on October 25, 2015 by Megan Hawley

Public exhibition of proposed changes to the Standard Instrument

The public exhibition and submission period for the NSW Government’s proposed changes to the Standard Instrument – Principal Local Environmental Plan (Standard Instrument LEP) commenced on 20 October 2015.

Five aspects of the Standard Instrument LEP have been identified for amendment.

The Department of Planning’s website describes the proposed changes as follows:

• add “hardware and building supplies” and “garden centres” to the mandatory uses permitted with consent in IN1 General Industrial, IN2 Light Industrial and B7 Business Park zones;
• add “places of public worship” to the mandatory uses permitted with consent in IN1 General Industrial and IN2 Light Industrial zones;
• amend clause 4.1(4) to clarify what is meant by “subdivision of individual lots in a strata plan or community title scheme”;
• amend the definition “building height” to allow height of buildings to be measured relative to a known datum; and
• amend the definition of “livestock processing industry” to remove the phrase “derived principally from surrounding districts”. 

A detailed summary of the proposed changes is contained in the Explanatory Material available on the Department’s website here.

The proposed change to clause 4.1(4) is to be welcomed to the extent that it creates greater clarity regarding the scope of the exception to the minimum subdivision lot size that applies in relation to a strata and community title schemes.

As currently worded, Clause 4.1(4)  states:

(4) This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme.

In my view, the exception in clause 4.1(4) as currently drafted does not apply to lots created when the strata plan or community scheme is first registered, but only to a subdivision of lots within a strata plan or community scheme which has previously been created.

The proposed new wording of clause 4.1(4) states:

(4) This clause does not apply in relation to the following: 

(a) the subdivision of land under the Community Land Development Act 1989;

(b) the subdivision of land into lots as a strata plan under the Strata Schemes (Freehold Development) Act 1973,

(c) the subdivision of lots in a strata plan under that Act.

This drafting makes it clear in respect of strata plans that the exception to the minimum lot size applies in respect of a subdivision of Torrens title land by way of a strata plan, and also a further subdivision of lots within a previously registered strata plan.

The proposed wording used in respect of community schemes is less clear. It is odd that the same formulation of words as for strata plans was not used. However, as the creation of a community scheme would be a subdivision ‘under’ the Community Land Development Act 1989, my view is the effect is the same.

Therefore, if the proposed new clause is included in the Standard Instrument LEP the effect will be that the minimum lot size standards in clause 4.1 do not apply to the creation of lots by way of registration of a strata plan or community scheme, and also do not apply to further subdivision of lots within an existing strata plan or community scheme.

Prepared by Angelique Williams and Megan Hawley.