Posted on July 14, 2014 by Megan Hawley 12

When are boundary adjustments exempt development?

 In February 2014, the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP) was significantly amended including in respect of the types of subdivision which can be carried out as exempt development.

The majority of the types of subdivision which are exempt development remain unchanged. Therefore, subdivisions for the purpose only of road widening, rectifying an encroachment, creating a public reserve, or excising land for a public purpose, all remain exempt development.

The amendments are in respect of subdivision for the purpose of a realignment of boundaries, or what is commonly referred to as a boundary adjustment.

There is one additional criterion for such a subdivision to be exempt development and that is that there is no heritage or draft heritage item on the land in relation to which the subdivision is to be carried out. There is also an amendment regarding the requirement that there be no increased fire risk.  

The SEPP retains the requirement that the lots resulting from a boundary realignment must not be smaller than the minimum lot size specified in an environmental planning instrument. However, previously there was an exemption to this requirement such that a subdivision could still be exempt development if the resulting lots were smaller than the minimum lot size but only if ‘the original lot or lots are already smaller than the minimum size’. This meant that existing sub sized lots could be further reduced in size.

The exemption is now expressed as applying where ‘a lot or lots whose boundaries are being realigned is or are already smaller than the minimum size and that lot or those  lots will only increase in size at the completion of the subdivision’.

This is a significant change.

This amendment means that a subdivision which reduces the size of a lot which is already smaller than the minimum lot size, is now not exempt development. A subdivision which results in lots smaller than the minimum lot size is only exempt development if there is no reduction in the size of already existing lots which are smaller than the minimum lot size and if those lots will actually increase in size.

The new SEPP provisions attempt to limit the scope of the realignment of boundaries which can occur as exempt development. Previously only a ‘minor’ realignment of boundaries was exempt development. The SEPP now provides that to be exempt development, the realignment of the boundaries  must result in only a minor change in the area of any lot if the subdivision is on land zoned rural or environment protection. There is no definition of ‘minor change‘.

However, in respect of land in all other zones, the change in the area of any lot resulting from the realignment must be no more than 10%. Presumably it was considered that given the potential size of lots which are zoned rural and environment protection, the 10% limit was inappropriate. It remains to be seen, however, what will be considered a minor change in respect of subdivisions in the rural and environment protection zones.

All planners, developers and Council officers should be aware of the changes.

There may of course, also be provisions in local environmental plans regarding boundary adjustments which will continue to apply.

Some local environmental plans contain special provisions for subdivisions which constitute boundary adjustments without defining the phrase ‘boundary adjustment’.

What constitutes a boundary adjustment in the absence of a definition has been considered in a number of cases. Jagot J in McCabe & Others v Blue Mountains City Council [2006] NSWLEC 176 said that she did not accept that the words ‘boundary adjustment’ embrace any and all alterations of a boundary, but would generally be taken to mean alteration of a boundary by correction or regularisation to reflect actual conditions (such as the physical features of land) or for example to make the use of land feasible or more practical.

Cases such as McCabe and Barnes v Dungog Shire Council [2012] NSWLEC 1021 also make it clear that the Court will only consider a subdivision to be a boundary adjustment where the resulting lots bear some resemblance to the lots which existed before the subdivision.

Those cases may have little relevance to whether a boundary adjustment is exempt development under the SEPP where the 10% limit on the change in area of a lot applies, as that limit would tend to make the resulting lots similar to the existing lots.  However, the case law may remain relevant to realignments in rural and environment protection zones and the question of whether a particular subdivision results in a ‘minor change’ to lot areas, and can otherwise be described as a ‘realignment of boundaries’.