Posted on July 1, 2014 by Stuart Simington 3

What is minimum lot size for subdivision on split mapped land?

The Standard Instrument contains an optional clause 4.1 regulating the minimum subdivision lot size. But where land contains two areas of land mapped for different lot sizes, what is the minimum subdivision lot size for a subdivision of the whole of the land?

Judged by the number of enquiries we are receiving relating to this issue and amendments that have already been made to a number of LEPs , further clarification, legislative or otherwise, will surely be needed.

In some areas, Councils have chosen to designate the minimum subdivision lot size (and zone boundaries too) otherwise than by reference to title boundaries. The reason for doing this is usually to define topographical features, such as that it is flood affected or is a boundary of ecological significance. So, for example, some allotments may be partly mapped for 450sqm lots and partly zoned for 20,000sqm lots, as in the below example:

Clause 4.1 of the Standard Instrument then provides as follows:

(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.

The problem is that under clause 4.1(3),  the lower of the two lot sizes specified for a dual mapped area of  land is, for any given subdivision, the minimum lot size shown on the Map in relation to that land.

Taken to its logical extreme, a subdivision of large residues of non-urban mapped land combined with only a small component mapped for urban development could then be subdivided at the urban density without there being any breach of clause 4.1(3).

This outcome was presumably not the intention of the draftsperson. Yet on the face of it, there is clearly an open argument in favour of it. As far as I am aware, the issue has not yet been tested in the Courts, but this must just be a matter of time.

Some Council’s have recently attempted to deal with dual ‘zoned’ land, but apparently on the assumption that it cannot be subdivided at all under clause 4.1: see for example clause 4.1D of Port Stephens Local Environmental Plan 2013. The argument is presumably that land which contains two (2) lot sizes does not have a minimum. But this doesn’t make a great deal of sense either.  Rather, if the argument set out above is correct, such land can be subdivided under clause 4.1 at the minimum lot size shown for the land, so the new provisions like clause 4.1D do not seem to fix the problem.