Albert Square NSW Pty Ltd v Randwick City Council

Statutory interpretation - Is the use of the word "Lot" limited to the measure of land size?

1. The whole subject matter of cl 4.1A of the RLEP is strata schemes and the subdivision referred to in cl 4.1A is pursuant to that scheme.
2. The Respondent agrees with the principles of statutory interpretation contained in the Applicant's written submissions (Transcript 28 April 2021, pg 46 at 35).
3. In the Applicant's written submissions at [12] the Applicant submits that the principles of construction of an environmental planning instrument are well known and have been stated in, for example, DM & Longbow v Willoughby City Council (2017) 228 LGERA 342; [2017] NSWLEC 173 at [19] (Preston CJ) and Parks and Playgrounds Movement Inc v Newcastle City Council (2010) 179 LGERA 346; [2010] NSWLEC 231 at [71]-[76] (Biscoe J). Firstly, in the decision of Bisco J in Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231, the statutory interpretation principles are set out as follows: "71 The true task of statutory interpretation is to determine what the statute means, not what the legislature meant: Wik Peoples v Queensland (1996) 187 CLR 1 at 168-169. Nevertheless, the task has often been described as determining the legislative intention, which is potentially misleading unless it is understood that it only means the objective intention as manifested by the words of the statute. It does not mean the subjective intention of parliamentarians or ministers, even if expressed in a Second Reading Speech: Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [31] - [33]; Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12]. 72 Principles of statutory interpretation relevant to the present case are summarised below. It is in the application of principles of statutory interpretation that there is an "intolerable wrestle": Spigelman CJ, The Intolerable Wrestle: Developments in Statutory Interpretation, keynote address to the Australasian Conference of Planning and Environmental Courts and Tribunals, 1 September 2010 (quoting T S Elliot). 73 In the interpretation of a statutory provision, a construction that would promote the purpose or object underlying the Act (whether or not expressly stated in the Act) is to be preferred to a construction that would not promote that purpose or object: s 33 Interpretation Act 1987. 74 The primary object of interpretation of a statutory provision is to construe it so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 at [69]; Wilson at [13]. 75 Fundamental to the task is giving close attention to the text and structure of the Act: Wilson at [12]. A Court must strive to give meaning to every word of a statutory provision: Project Blue Sky at [71]; Wilson at [13]. 76 Words must be read in their context in the first instance, not merely at some later stage when ambiguity might be thought to arise. Context is used in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. This approach has been followed in a number of subsequent judgments (mostly joint judgments) of the High Court, sometimes using the language of "mischief", sometimes using the language of giving effect to any discernible statutory "purpose": Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99, 113; Project Blue Sky at [69] and [78]; Astley v Austrust Ltd [1999] HCA 6, 197 CLR 1 at [49] and [71]; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14, 218 CLR 273 at [11] - [12]. See also Wilson at [12] - [13]; Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 at [42]."
4. Secondly, Preston CJ confirmed that the principles of statutory construction apply equally to the interpretation of delegated legislation, such as environmental planning instruments and in his decision of DM & Longbow v Willoughby City Council (2017) 228 LGERA 342, [2017] NSWLEC 173 he states as follows at [19]: "[19] At the outset, it should be noted that there are not differing principles of statutory construction applicable to primary and delegated legislation. There is not "some general principle requiring laxity or flexibility in construing delegated legislated, or statutory instruments generally": 4Nature Inc v Centennial Springvale Pty Ltd (2017) 224 LGERA 301; [2017] NSWCA 191 at [45]. The general principles relating to the interpretation of statutes are equally applicable to the interpretation of delegated legislation: Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389; [1996] HCA 36 at 398. The basic principles of statutory construction "require that the language be read in context and having regard to the objective which it was designed to promote", however "the primary focus must remain upon the text": 4Nature Inc v Centennial Springvale Pty Ltd at [51] and see Cranbrook School v Woollahra Municipal Council at [36]."
5. In the context of the above statutory interpretation principles, I will now consider the three conflicting decisions by commissioners of this court which both parties referred to in their submissions and then I will look at the statutory context of cl 4.1A and make my findings. I further note that I am not bound by these decisions and I will form my conclusions after having considered the reasons given in these decisions.
6. The three conflicting decisions by commissioner referred to by the parties are as follows: 1. MMP 888 Pty Ltd v Randwick City Council [2019] NSWLEC 1646, (Horton C) (MMP 888); 2. Kingsford Property Developments v Randwick City Council [2019] NSWLEC 1486, (Bish C) (Kingsford); and 3. Kelly v Randwick city Council [2018] NSWLEC 1322, (Dickson C) (Kelly).
7. I will deal with the most recent decision first being MMP 888 and note that the Respondent relies on this decision. The Applicant's interpretation of cl 4.1A(4) is consistent with the Kelly and Kingsford decisions.
8. It is relevant to observe that the Kingsford case was heard only a couple of weeks prior to MMP 888 and the decision in Kingsford was published in October 2019 and the MMP 888 decision published only a short time later in December 2019. All three decisions dealt with cl 4.1A of the RLEP.

MMP 888

1. In MMP 888, Horton C determined an application for development consent for the demolition of a single dwelling and erection of an attached two-storey dual occupancy development, and strata subdivision. The appeal was upheld and approval granted except for that part of the application for strata subdivision for which consent was not granted. The Applicant submits that the wrong conclusion was reached by Commissioner Horton at par [45] quoted below and says that in addition to the Horton C not referring to or trying to distinguish the other two commissioner's decisions making Horton C's decision less reliable, there is no reference in cl 4.1A(4) to either ground support or the land on the site and Horton C has brought in criteria that is not found in or supported by the terms of cl 4.1A(4) to support a wrong conclusion (Transcript 28 April 2021 page 39 at par 7 - 20).
2. As I noted above regarding the timing of the MMP 888 decision and of the Kingsford decision I do not regard that Horton C neglected or was required to distinguish or consider the decision of Bish C in Kingsford. However it would have been helpful in this case if Horton C had given some reason or explanation as to why the reasoning in the decision of Dickson C was not agreed with. As there was significant debate between the parties in these proceedings and the result is diametrically opposed, I propose to set out the reasoning of Horton C in MMP 888 and consider and set out the reasoning of Dickson C in Kelly followed by the reasoning of Bish C in Kingsford. Firstly, the reasoning in MMP 888 is extracted from the judgment from [41] - [57] below and I note relevantly that Horton C referred to the definition of subdivision set out in s 6 of the EPA Act and considered the definitions in s 4 of the SSDA. The extract from the judgment I include in full in the circumstances of this case, and it reads as follows: "[41] While the issues in dispute are different to those advanced in the matter of DM & Longbow v Willoughby City Council (2017) 228 LGERA 342; [2017] NSWLEC 173, Preston CJ's finding at [21], is relevant here as it was in that matter: "The applicant's proposed subdivision is for the subdivision of the existing land (being land under the Real Property Act 1900 that is held in fee simple) into individual lots and common property by the registration of a plan as a strata plan under s 9 of the Strata Schemes Development Act 2015. The object of such subdivision is the land under the Real Property Act. The land does not answer the description of being "individual lots in a strata plan". Any individual lots in a strata plan will only result from the registration of a plan as a strata plan that creates the lots. Hence, the "individual lots" will be the result of the subdivision but not what are being subdivided." [42] Applying his Honour's logic to the particular circumstances of this matter, it follows that the strata lots proposed by the Applicant will be the result of the strata subdivision, but not what are being subdivided. The subject of subdivision is land, which precedes a circumstance where a strata plan may be then registered, the result of which will be strata lots. [43] Clause 4.1A(4) provides for the circumstance where there is a lot on which there is a dual occupancy (attached). According to the dictionary in the RLEP, a dual occupancy (attached) is defined as "two dwellings on one lot of land that are attached to each other", as is the case here. [44] Substituting the definition from the dictionary in place of the defined term, subcl (4) would read, in effect: "Despite subclause (3), the subdivision intended to result from the registration of a strata plan scheme of a lot on which two dwellings on that one lot are attached to each other, the size of each resulting lot is to be not less than 400m2, and one dwelling must be situated on each lot resulting from the subdivision." [45] The purpose in using the preposition "on" when referring to the requirement for there to be one dwelling on each lot resulting from subdivision, is to recognise that the result or outcome of the subdivision of the land must be that the two attached dwellings continue to be founded in the same way in which they were founded before subdivision of the land - that is, having the same ground support on the site. That ground support, being the land on the site, must have a minimum area of 400m2 for each dwelling. [46] Such an outcome is consistent with the objective of the clause expressed in cl 4.1A(1) as it avoids the fragmentation of dwelling entitlements by preserving the status quo in respect of land on which there is an attached dual occupancy, and limits the density of development in a zone prescribed Low Density Residential. [47] Further support to this position is found when the provisions of cl 4.1A are read in context with cl 4.1C which permits dual occupancy (attached) development, absent of strata subdivision, if the area of the lot is at least 450m2. [48] The Applicant submits that the Lot Size Map fixes a number that relates to various types of development, including strata subdivisions, and says nothing about being an area 'on the ground'. However, the provisions of cl 4.1A are qualified by operation of cl 4.1(4) of the RLEP which relates expressly to the subdivision of a lot on which there is a dual occupancy (attached). [49] While the Lot Size Map is said, at subcl 4.1A(3), to operate when a strata subdivision is proposed in the R2 zone, cl 4.1A(4) does not refer to, or rely on the Lot Size Map, but expressly states a lot size area of 400m2. [50] The Applicant argues that the strata lot must achieve a minimum of 400m2 in area, being the site and internal area aggregated together. The FSR and height of building controls act to place an upper limit on the total floor area. [51] What underlies this proposition is that a strata lot must achieve 400m2 in area if it is to avoid offending the objective at cl 4.1A(1). Put another way, a strata lot with an area of anything less than 400m2 is not permissible, presumably as it would result in fragmentation by virtue of a subdivision that would create additional dwelling entitlements. [52] However, if I adopt the Applicant's position that the purpose of the provision is to encourage strata lots of at least 400m2 in area, it follows that the removal of just 22m2 of floor area on Level 1 of the proposed development at No 40 Creer Street would result in the area of the strata lot being less than 400m2 and so be impermissible. Yet it would still fully comply with the FSR and height of buildings control and would have, in the words of the Applicant, no practical physical or visible distinction that would set this development apart from similar dwellings in the street. [53] Furthermore, while an area contained within a building envelope can be described as a cubic space by virtue of it having walls supporting floors, the site itself, or parts thereof, does not answer the description of a 'cubic space' as suggested by the Applicant at [21] and so the areas marked CY in Exhibit C cannot fall within the definition on which the Applicant seeks to rely when determining the area of the lot. [54] Finally, I cannot accept the Applicant's position that the aim of the provision would be to promote greater floor area, where the objectives of the zone include to protect the amenity of residents, and to encourage housing affordability. Arriving at such a conclusion is consistent with the objectives for the R2 zone, re-produced at [9]. That consistency adds further support to the contextual interpretation that accords with the principles of statutory interpretation. [55] I acknowledge the result is an interpretation that differs from that expressed in earlier decisions of Commissioners. As a general principle, while decisions on merit appeals do not engage the doctrine of precedent, comity would ordinarily suggest that a prior decision be followed on a question of interpretation unless it is respectfully considered that the earlier decision(s) is clearly wrong. For the reasons stated above, I cannot follow the reasoning applied in earlier decisions by other Commissioners. [56] The parties, and their planning experts, agree that any consideration as to whether the development is consistent with the desired future character of the area is contingent on my finding in relation to the method by which lot size is determined. [57] The Applicant submits that if I find in favour of the Respondent, the Court can grant consent for the demolition of the existing structures on the site, and for the construction of the dual occupancy dwellings, but decline to grant consent for the strata subdivision."
3. I do not agree, respectfully, with the reasoning of Horton C in MMP 888 for reasons substantially as I have set out above in this judgment at [15] - [17].

Kelly's case

1. Dickson C was tasked with determining an appeal for development consent sought for strata scheme subdivision only, that is, in that case there was already an existing development consent for the construction of a dual occupancy development. Kelly's case also considered s 6 of the EPA Act and the definition of the word 'lot' in s 4 of the SSDA. The objective of the cl 4.1A development standard, namely, to avoid fragmentation that would create additional dwelling entitlements was also considered and I note that the parties agreed that the requirement of cl 4.1A(4)(b) was met by the construction of the dual occupancy previously approved (Kelly at [32]). It is noted also that in the Kelly case the experts agreed and the Council supported the cl 4.6 variation request (Kelly at [31]). Again, in the context of the matter I am tasked with to determine, I reproduce the relevant extract of the decision in Kelly which sets out the reasoning of Dickson C from [37] - [42] as follows: "[37] … I accept the submission of Mr Tomasetti and his reasoning at paragraph [21-23]. I am satisfied that the intent of the clause, when read as a whole, is to prohibit strata subdivision of any relevant land by any strata plan which results in strata lots that are less than the minimum size shown on the Lot Size Map in relation to that land. [38] As the strata lots will comprise an area of 408m² (Exhibit A) and the relevant lot size for the subject land is 400m², the application does not rely on the Court upholding the submitted cl. 4.6 variation request for consent to be granted. [39] For Council's interpretation to be sustained it is necessary for the reference to "lot" in cl. 4.1(4), (a) and (b) to be a reference to "land" or "site area". I am satisfied when read as a whole that this is not the intent of the clause. [40] Further the drafting of cl. 4.1A is such that the term 'land' is utilised in both sub-cl. (1) and (2) and specifically not in the remainder of the clause. I am satisfied that this distinction in the drafting of the clause has a purpose. [41] There being no issues raised by the parties I concur with the conclusions of the experts that the application warrants approval. [42] I have considered the proposed conditions of consent, agreed between the parties, I am satisfied that it is lawful and appropriate to grant the proposal development consent."
2. In accepting the reasoning of Mr Tomasetti, Dickson C accepted that the development standard in cl 4.1A "regulates only the size of a lot 'resulting from a subdivision of land', in other words the 'product' or 'outcome' of the subdivision. It does not contain any control on the size of the lot prior to the subdivision." (Kelly at [22(2)])
3. I note that the parties in this matter agree that the development standard applies to the resulting lot being the strata lot (refer to [4] above) and I accept that cl 4.1A(4) is a development standard which regulates the minimum resulting lot size being a strata lot. The measurement of that resulting strata lot remains the contested issue between the parties and I give my reasons in this judgment as to why the measurement is as calculated in Figure 1 for the purpose of cl 4.1A(4) of the RLEP.

The Kingsford case

1. Bish C was tasked with determining an appeal for development consent sought for demolition, construction of dual occupancy and strata subdivision. Similar to the MMP 888 and the Kelly cases, s 6 of the EPA Act was considered together with s 9 of the SSDA which is titled "Subdivision of land by strata plan" (Kingsford at [14] - [15]), and at [16] notes that the parties do not agree on the area calculated for the proposed strata lots.
2. In the Kingsford case, the experts agreed that the definition of 'lot' was to be derived from the Strata Scheme Development Act, s 4, unlike in this matter where the Respondent expressly submits that this approach is flawed on the basis that "where you are looking for a 400m2 area on the ground, it words as a minimum. You need 400m2 and if you don't have it you can't strata subdivide your dual occupancy." (Transcript 28 April 2021, page 8 at 45)
3. Bish C notes that although the experts agreed on applying s 4 of the SSDA, Mr Harding for the Respondent in that matter "contends that based on the site area for each proposed strata lot, the areal dimension is defined in the two-dimensional plane, based on land area only" (Kingsford at [28]). In these proceedings, Mr Huang, expert town planner for the Respondent states at page 3 of the JER (Exhibit E) that 'it is incorrect to calculate the floor area of the strata lot above the two dimensional ground level.' For reasons I give throughout this judgment a strata lot is a three dimensional concept where the strata lot entitlement is generally measured in a two dimensional way but is not limited to the area on ground as this would potentially measure only part of a strata lot and will exclude other part strata lot entitlements which are located below or above ground, such as the Proposed Development as depicted in Fig 2.
4. Bish C upheld the appeal concluding that there was no contravention of the EPA Act or other relevant planning instruments. Her reasons, extracted in full from the Kingsford decision from [33] - [40] and [47] - [49] are as follows: "[33] Commissioner Dixon in DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 1358 found that the clear and ordinary reading of the text of the EP&A Act provides the required context for the Courts consideration of a relevant planning instrument. I consider this approach in trying to understand what is intended to be included in the calculation of a strata lot area. [34] The Merriam-Webster dictionary defines area as: Area: the surface included within a set of lines, specifically, the number of unit squares equal in measure to the surface [35] I accept that the calculation of a Torrens title lot, as existing on the site, is a two dimensional concept based on the total land area, which for this site equates to 669m². I also accept that the proposed land area of each strata lot is 335m². However, I do not accept that land area alone forms the basis for the calculation of the minimum lot size requirement for a strata lot. I explain the basis for my assessment below. [36] The applicant has adopted the calculation approach as described in s 6 of the SSD Act, whereby the floor areas for the ground and first floor levels are included. The respondent on the other hand has relied on the calculation of land area, as described in s 9 of the SSD Act, with 'land' defined in the Real Property Act 1900. [37] I agree with Mr Chapman, that the strata lot area is a three-dimensional concept, including all floor levels/areas of the dwelling on the strata lot. I consider that the calculation of a strata lot area should be consistent with s 6 of the SSD Act, which is based on floor area as opposed to land area. [38] Based on the evidence before me, I find that the proposed strata lot area is 422m² and 428m² for Strata Lots 1 and 2, respectively. The proposed development therefore, exceeds the minimum lot size of 400m², as specified in cl 4.1A(4)(a) of the RLEP. In making this determination, I rely on the definition of 'floor plan' provided in the SSD Act, which includes the areas of each floor. [39] I do not accept the approach of Mr Harding's that cl 4.1A(4)(a) of the RLEP requires that the site must have at least 800m² to be strata subdivided into two strata lots, with dual occupancy (attached) dwellings. [40] My approach to calculation of strata lot area is consistent with that held by Commissioner Dickson in Kelly v Randwick City Council [2018] NSWLEC 1322. [47] I find that the objective of cl 4.1A(1) of the RLEP has been satisfied. I agree with Mr Chapman that the two strata lots created by the proposed development will not result in 'fragmentation' of the land or 'additional dwelling entitlement'. [48] I disagree with Mr Harding that the objectives specified in cl 4.1A(1) of the RLEP are not complied with. The proposed development does not result in an additional dwelling entitlement, as only one lot remains registered on the Torrens title. [49] I find that the proposed two strata lot subdivision on the site does not breach the minimum lot size requirement of 400m², pursuant to cl 4.1A(4)(a) of the RLEP, and therefore no (cl 4.6) request for variation of this development standard is required for the Courts satisfaction to grant consent to the DA under appeal."

How to calculate the size of a lot for the purpose of cl 4.1A(4)(a) - the Statutory context

1. In accordance with the statutory interpretation principles set out above, I will consider the text of cl 4.1A(4) to which there are three parts being firstly the introductory words, secondly subclause (a) which stipulates the minimum size of the lot and thirdly subclause (b) which stipulates that a dwelling must be on each new lot.
2. The context within which cl 4.1A is found in relation to other provisions in the RLEP is in Part 4 Principal development standards and it follows cl 4.1 Minimum subdivision lot size which provides the relevant control for Torrens title subdivision as cl 4.1(4) expressly excludes subdivision of any land by registration of a strata plan of subdivision under the SSDA or by any kind of subdivision under the Community Land Development Act 1989. Following is cl 4.1AA Minimum subdivision lot size for community title schemes which refers to the Community Land Development Act 1989 (now Community Land Development Act 2021) and expressly states that cl 4.1AA applies despite cl 4.1. Next is cl 4.1A, the relevant clause in these proceedings which provides in full as follows: "4.1A Minimum subdivision lot size for strata plan schemes in Zone R2 (1) The objective of this clause is to ensure that land to which this clause applies is not fragmented by subdivisions that would create additional dwelling entitlements. (2) This clause applies to land in Zone R2 Low Density Residential. (3) The size of any lot resulting from a subdivision of land to which this clause applies for a strata plan scheme (other than any lot comprising common property within the meaning of the Strata Schemes (Freehold Development) Act 1973 or Strata Schemes (Leasehold Development) Act 1986) is not to be less than the minimum size shown on the Lot Size Map in relation to that land. Note - Part 6 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 provides that strata subdivision of a building in certain circumstances is specified complying development. (4) Despite subclause (3), if the subdivision is of a lot on which there is a dual occupancy (attached) - (a) the size of each lot resulting from the subdivision is not to be less than 400 square metres, and (b) 1 dwelling must be situated on each lot resulting from the subdivision."
3. Clause 4.1A refers to Strata Schemes (Freehold Development) Act 1973 and to Strata Schemes (Leasehold Development) Act 1973 both of which are no longer current, but I accept that references to predecessor legislation can (by s 68 of the Interpretation Act 1987) be taken to be references to the current legislation namely, the SSDA.
4. The context of other relevant statutory framework can be summarised as follows: 1. SSDA, s 4 definitions of, inter alia, strata lot; and 2. State Environmental Planning Policy (Exempt and Complying Development Code) 2008, Part 6, Div 1.
5. There are other relevant provisions in the RLEP, namely cl 2.6 which provides as follows: 2.6 Subdivision - consent requirements (1) Land to which this Plan applies may be subdivided, but only with development consent. Notes - 1 If a subdivision is specified as exempt development in an applicable environmental planning instrument, such as this Plan or State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, the Act enables it to be carried out without development consent. 2 Part 6 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 provides that the strata subdivision of a building in certain circumstances is complying development. (2) Development consent must not be granted for the subdivision of land on which a secondary dwelling is situated if the subdivision would result in the principal dwelling and the secondary dwelling being situated on separate lots, unless the resulting lots are not less than the minimum size shown on the Lot Size Map in relation to that land. Note - The definition of secondary dwelling in the Dictionary requires the dwelling to be on the same lot of land as the principal dwelling.
6. The parties referred the Court to some of the definitions found in s 4 of the SSDA as follows: common property, in relation to a strata scheme or a proposed strata scheme, means any part of a parcel that is not comprised in a lot (including any common infrastructure that is not part of a lot). floor plan means a plan that - (a) defines by lines (each a base line) the base of the vertical boundaries of each cubic space forming the whole of a proposed lot, or the whole of a part of a proposed lot, to which the plan relates, and (b) shows - (i) the floor area of each proposed lot, and (ii) if a proposed lot has more than one part - the floor area of each part together with the aggregate of the floor areas of the parts, and (c) if a proposed lot or part of a proposed lot is superimposed on another proposed lot or part - shows the separate base lines of the proposed lots or parts, by reference to floors or levels, in the order in which the superimposition occurs. lot, in relation to a strata scheme, means one or more cubic spaces shown as a lot on a floor plan relating to the scheme, but does not include any common infrastructure, unless the common infrastructure is described on the plan, in the way prescribed by the regulations, as a part of the lot. parcel means - (a) in relation to a strata scheme, the land comprising the lots and common property in the scheme, or (b) in relation to a plan lodged for registration as a strata plan, the land comprised in the plan.
7. In relation to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, I acknowledge that this only applies to a development, such as a dual occupancy, for which a complying development certificate has been issued and that this dual occupancy was not approved under the Exempt and Complying provisions (Transcript 28 April 2021, page 10 at 10). The Code therefore does not readily assist in these proceedings.
8. Clause 4.1A(4) of the RLEP operates as an exception to subclause (3) and although I would agree with the Respondent that to some extent "there is an uncomfortable use of language through these provisions." (Transcript 28 April 2021, page 7 at 36) it is clear, and agreed, that the control in cl 4.1A relates to the lot resulting from the strata scheme subdivision and therefore applies to the size of the strata lot. To apply any other interpretation creates an artificial application of the words on a clause where the whole subject matter is strata scheme subdivision.
9. In relation to the objective of the cl 4.1A development standard, the parties agree that there is no additional dwelling entitlement created by the Proposed Development and for completeness I find that the Proposed Development is consistent with the objective of cl 4.1A.

Findings

1. For the reasons set out in this judgment, I accept the reasoning and methodology employed by Dickson C and Bish C and note that this is consistent with my decision in Junn v Willoughby City Council [2020] NSWLEC 1459 which dealt with slightly different issues, the measurement of the strata lot size is consistent.
2. I find that the lot size of each lot resulting from the strata subdivision of the Proposed Development will be 444m2.
3. The development standard in cl 4.1A(4) is not contravened and there is no requirement for the court to consider any request pursuant to cl 4.6 purporting to justify any contravention of the minimum strata subdivision lot size development standard.
4. I uphold the appeal based on my finding that the Proposed Development complies with the minimum lot size development standard in cl 4.1A(4) of RLEP.

Orders

1. The Court orders that: 1. The appeal is upheld. 2. Development Application DA/524/2020 seeking development consent for the strata subdivision of existing dual occupancy into two strata allotments at 89 Mons Avenue Maroubra legally described as Lot 2 DP 222605 is approved subject to conditions annexure A.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2021