COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) for Randwick City Council's (Council) refusal of Development Application DA/36/2024 (DA) for the strata subdivision of a built dual occupancy located at 64 Knowles Avenue, Matraville being the whole of the land in Lot 1 in Deposited Plan 1274326 (Land).
The proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
In determining the proceedings the Court has power or function pursuant to s 4.16(1) of the EPA Act and s 39(2) of the LEC Act.
The Applicant seeks development consent to subdivide the Land pursuant to a strata scheme under the Strata Development Act 2015 (SSD Act).
The DA was lodged with Council on 29 January 2024 with the consent of the owner of the land (Class 1 Application, tab 8) pursuant to s 23(1)(b) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).
On 14 March 2024 Council advised the Applicant it had determined the DA by refusal (Ex 2 tab 5) pursuant to s 4.18(1)(a) of the EPA Act, using the power in s 4.16(1)(b) of the EPA. The principal reason for Council's refusal of the DA is the alleged non-compliance with the minimum lot size as defined in cl 4.1A and the Lot Size Map of Randwick Local Environmental Plan 2012 (RLEP 2012).
In accordance with the time provisions in s 8.10(1)(a) of the EPA Act, the Applicant filed an appeal against the Council's refusal of the DA on 13 March 2024.
At the hearing of this matter Council took a neutral position, and therefore did not raise any contradictor to the submissions made by the Applicant.
Figure 1: Aerial photograph of the site (Source Nearmaps, 12 March 2024) (Council's Statement of Facts and Contentions filed 29 April 2024, p 3)(SOFAC)
[2]
Legislation
Land and Environment Court Act 1979
39 Powers of Court on appeals
(1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.
(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.
(4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.
(5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.
……
Randwick Local Environmental Plan 2012
Zone R2 Low Density Residential
1 Objectives of zone
• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.
• To protect the amenity of residents.
• To encourage housing affordability.
• To enable small-scale business uses in existing commercial buildings.
2 Permitted without consent
Home occupations; Recreation areas
3 Permitted with consent
Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Business premises; Centre-based child care facilities; Community facilities; Dual occupancies (attached); Dwelling houses; Group homes; Health consulting rooms; Home-based child care; Home businesses; Home industries; Office premises; Oyster aquaculture; Passenger transport facilities; Places of public worship; Pond-based aquaculture; Recreation facilities (indoor); Recreation facilities (outdoor); Respite day care centres; Restaurants or cafes; Roads; Semi-detached dwellings; Shops; Tank-based aquaculture
4 Prohibited
Funeral homes; Any other development not specified in item 2 or 3
2.6 Subdivision - consent requirements
(1) Land to which this Plan applies may be subdivided, but only with development consent.
……
4.1 Minimum subdivision lot size
(1) The objectives of this clause are as follows -
(a) to minimise any likely adverse impact of subdivision and development on the amenity of neighbouring properties,
(b) to ensure that lot sizes allow development to be sited to protect natural or cultural features, including heritage items, and to retain special features such as trees and views,
(c) to ensure that lot sizes are able to accommodate development that is suitable for its purpose.
(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.
(4) This clause does not apply in relation to the subdivision of any land -
(a) by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or
……
4.1C Minimum lot size for dual occupancies (attached)
(1) The objective of this clause is to provide for housing diversity and affordability in residential zones.
(2) Development consent must not be granted to development for the purposes of dual occupancies (attached) on a lot in Zone R2 Low Density Residential unless the area of the lot is at least 550m2.
cl 4.1C: Am 2023 (461), Sch 1[8].
Prior to the lodgment of the DA, Council granted consent to development application DA/234/2020 on 4 December 2020 for demolition of existing structures and construction of an attached dual occupancy (EX 1: SOFAC p7 par [25]), noting that the dual occupancy has now been constructed and is occupied.
Section 1.5 of the EPA Act defines development for the purposes of the Act as including, relevantly, 'subdivision of land'.
Pursuant to s 6.2(2)(b) of the EPA Act:
(2) Without limiting subsection (1), subdivision of land includes the procuring of the registration in the office of the Registrar-General of -
(a) a plan of subdivision within the meaning of section 195 of the Conveyancing Act 1919, or
(b) a strata plan or a strata plan of subdivision within the meaning of the Strata Schemes Development Act 2015.
Pursuant to RLEP 2012, the Land:
1. May be subdivided with development consent (cl 2.6);
2. The Land falls within the R2 Low Density Residential zone pursuant to the Land Use Map of RLEP 2012.
3. The dual occupancy (attached) has been built, and all the essential services required by cl 6.10 of RLEP 2012 have been connected.
4. The minimum lot size for subdivision of dual occupancies is 275m2 for each lot. The area requirement for a dual occupancy was amended to 550m2 by RLEP 2012 Amendment No. 9 which commenced on 1 September 2023. The existing lot size of the Land is 495m.
5. Clause 4.1A of RLEP 2015 provides:
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 must not be less than 275m2, and
(b) 1 dwelling must be situated on each lot resulting from the subdivision.
1. Sub-section 4.1A(3) and (4) of RLEP 2012 relates to the size of any lot "resulting from a subdivision of land for a strata plan scheme (other than any lot comprising common property within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1887). Both these aforementioned Acts have been repealed, and re-enacted by the SSD Act. By reason of s 68 of the Interpretation Act 1987, reference to the predecessor legislation extends to the re-enacted legislation. Accordingly, references to the abovementioned earlier repealed Acts can be references to the SSD Act.
2. Neither the aforementioned repealed Acts, nor the SSD Act, contain the phrase 'strata plan scheme' referred to in cl 4.1A(3) of RLEP 2015. Instead, the SSD Act uses the phrases 'strata plan' and 'strata scheme' (as set out in the definitions in the appendix to the SSD).
3. I note the objects of the SSD include:
"3 (a) the subdivision of land, including buildings, into cubic spaces to create freehold strata schemes and leasehold strata schemes, and…"
1. To overcome and resolve any inconsistency with respect to those various phrases, reference is made to the decision by Preston CJ in DM & Longbow Pty Ltd v Willoughby City Council (2017 228 LGERA 342 at 351-352; [2017] NSWLEC 173 at [19] (Longbow). In relation to the interpretation of an environmental planning instrument, Preston CJ held:
[19] "At the outset, it should be noted that there are no differing principles of statutory construction applicable to primary and delegated legislation … 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].
[23] "This is not a case, "where the drafter has been less than fastidiously precise in his or her choice of language" so that it might be appropriate "to give rather less weight to precise textual considerations'….."
1. In applying Longbow I find that the drafter of cl 4.1A of RLEP 2012 "has been less than fastidiously precise in his or her choice of language", and thus it is appropriate "to give rather less weight to precise textual considerations". I find that the phrase "strata plan scheme" used in cl 4.1A(3) of RLEP 2015 refers to a 'strata scheme', and therefore providing for a strata plan of subdivision pursuant to the SSD Act.
2. Subclauses 4.1A(3) and (4) of RLEP 2012 control the size of the lots resulting from a strata scheme. Such lots arise from the subdivision pursuant to the SSD Act, and therefore they are lots as defined in the SSD Act.
3. The SSD Act defines "Lot" in s 4 as follows:
"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."
1. Section 9(1) and (4) of the SSD Act provides relevantly:
9 Subdivision of land by strata plan
"(1) The following land may be subdivided into lots, or lots and common property, by the registration of a plan as a strata plan -
(a) land including the whole of a building and consisting of one current plan lot or 2 or more contiguous current plan lots,
,,,,,
"(4) In this section -
current plan lot means an existing lot within the meaning of the Conveyancing Act 1919, other than a lot as defined in this Act.
land means land under the Real Property Act 1900 that is held in fee simple, other than land comprised in a limited folio or qualified folio."
1. In the present case, references in s 9 of the SSD Act to either the "current plan lot" or the "land" are both references to the land being Lot 1 DP 1274326, known as 64 Knowles Ave, Matraville.
2. Section 6 of the SSD Act set out the boundaries of a lot, and provides:
6 Boundaries of lot
(1) For the purposes of this Act, the boundaries of a lot shown on a floor plan are -
(a) except as provided by paragraph (b) -
(i) for a vertical boundary in which the base of a wall corresponds substantially with a base line - the inner surface of the wall, and
(ii) for a horizontal boundary in which a floor or ceiling joins a vertical boundary of the lot - the upper surface of the floor and the under surface of the ceiling, or
(b) the boundaries described on the floor plan relating to the lot, in the way prescribed by the regulations, by reference to a wall, floor or ceiling in a building to which the plan relates or to common infrastructure within the building.
(2) In this section -
base line - see paragraph (a) of the definition of floor plan in section 4 (1).
4 Definitions
……
floor area of a lot means the area occupied on a horizontal plane by the base of the cubic space of the 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
……
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 …"
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Orders
The Court orders:
1. The appeal is upheld.
2. Development consent is granted to DA/36/2024 for the strata title subdivision of Lot 1 in DP 1274326 known as 64 Knowles Avenue Matraville containing an attached dual occupancy into 2 lots, subject to Annexure A.
3. This page, and the previous 12 pages, are a true copy of my reasons for judgment.
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Amendments
23 January 2025 - Changes to measurements in from m2 to m3 in para [20].
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: 23 January 2025
In the current proceedings, the proposed Strata Plan of Subdivision shows that the proposed Lots 1 and 2 each comprise 2 parts:
1. Part 1 on Ground Level, comprising:
1. The part within the building;
2. The patio, and
3. The courtyard, and
4. For proposed Lot 2, the pool.
1. Part 2 on level 1, comprising:
1. The part within the building; and
2. The 2 balconies for each lot.
Each of the parts in the Strata Plan is comprised of cubic spaces, including the patios and courtyard areas of Lots 1 and 2 (and pool on Lot 2), as, by reason of the following, each of those parts satisfies the requirements in s 6(1) of the SSD Act so as to have an upper horizontal boundary:
1. Section 6(1)(b) of the SSD Act provides for the description of boundaries to be possible "in the way prescribed by the regulations".
2. Clause 4(1)(c) of the Strata Schemes Development Regulation 2016 (SSD Regulation) provides that the lodgement rules made under the Real Property Act 1900 (RP Act) apply in addition to the provisions of the SSD Regulation.
3. Pursuant to s 12F of the RP Act, the Registrar-General has made lodgement rules, including relevantly Lodgement Rules - s 12F Real Property Act - Version 1.0 Effective 19 May 2017 (Lodgement Rules).
4. Clause 8.1.2 of the Lodgement Rules provides that "a floor plan must comply with Schedules 10 and 12".
1. Clause 3(f) of Sch 12 of the Lodgement Rules provides:
1. "(f) If an upper or lower boundary of a lot or part of a lot is not limited by a structural fixture - include statements sufficient to accurately indicate the location of that boundary, and ……"
1. In addition to the Lodgement Rules, the Registrar-General has also published Guidelines, the intention of which is:
"…to establish NSW LRS requirements for strata scheme plans and thereby reduce delays by minimising the raising of requisitions on documents lodged for registration. The Guidelines are based upon the requirements of the legislation and the Lodgement Rules. They set out information needed by surveyors, solicitors and others in the preparation of strata scheme plans and associated instruments."
1. The NSW Land Registry Services' Plan Preparation Guide - Strata Plans - Version 1.0 dated September 2019 provides relevantly for Strata Plan Preparation Guide, and relevantly Stratum Statements which are required "if a lot is not limited in height and or depth by a structure", and then sets out various points to be considered when providing stratum statements in the floor plans (Preparation Guide - Strata Plans, pp 15-16).
2. In the current proceedings, the floor plan of the proposed strata scheme contains the following statements:
1. The stratum of the patios are limited in height to 3 above, the upper surface base, except where covered within this limit.
2. The stratum of the courtyard and pool are limited in height to 3 below and 6 above, the upper surface of the main ground floor concrete slab, except where covered within this limit.
1. Therefore, each of the parts of the proposed Lots 1 and 2 in the strata scheme plan are cubic spaces.
However, cl 4.1A (3) and (4) of RLEP 2012 deal with the size of the lots resulting from the strata scheme in a two-dimensional manner (i.e. m2), rather than a three-dimensional volumetric manner.
The strata plan of subdivision shows proposed subdivision on a two dimensional piece of paper which shows relevantly (pursuant to the definition of 'floor plan' in the SSD Act):
1. By "base lines": 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.
2. The floor area of each proposed lot, and
3. If the proposed lot has more than one part - the floor area of each part together with the aggregate of the floor areas of those parts.
Therefore, the SSD Act provides for the size of the proposed cubic space lots to be shown in a two-dimensional manner on the floor plan. That floor area is not limited to the part whose base is at ground level, and includes those parts whose base is at a different level (e.g. at level 1).
The RLEP 2012 Lot Size Map requires a minimum lot size of 275m2, noting that the existing Land lot size if 495m2. However, in a strata scheme that is not the test. Clause 4.1 (4) provides that cl 4.1 does not apply to a strata plan or strata plan of subdivision under the SSD.
I accept the methodology for measuring the lot size for the purposes of s 4.1A of RLEP 2012 as set out in the SSD, and I note that the word 'land' is not used in sub-clauses 4.1A (3) or (4). (Kelly v Randwick City Council [2018] NSWLEC 1322 pars [38]-[39]; Kingsford Property Developments v Randwick City Council [2019] NSWLEC pars [37], [40]; Albert Square NSW Pty Ltd v Randwick City Council [2021] NSWLEC 1401 pars [16], [38]; Barhom v Randwick City Council [2024] NSWLEC 1357 at pars [29]-[34] and [46]; and Scerri v Randwick City Council [2024] NSWLEC 1449).
Therefore I accept the size of the proposed Lot 1 is 322m3 and lot 2 is 327m3. (Ex A and Ex C tab 1: Draft Strata Plan of Subdivision of Lot 1 in DP 1274326 Rev A dated 2/8/24 by Scott Hosking, surveyor), and that the DA is compliant with the requirements of the RLEP 2012 Lot Size Map.
As the proposed Strata Lots 1 and 2 satisfy the minimum lot size of 275m2 per lot in the development standard in cl 4.1A(4) of RLEP 2012, a cl 4.6 request in accordance with RLEP 2012 is not required.
I have not given any weight to the Decision in MMP 888 Ltd v Randwick City Council [2019] NSWLEC 1466 (MMP 888) which does not apply the definitions in the SSD Act, but relies upon the area of the land under the dual occupancy (attached) to determine if the subdivision is permissible. The land size in MMP 888 is 400m2 and MMP 888 held that each strata unit must have a land area of 400m2 (at par [45]).
I find that the DA is consistent with the objective in cl 4.1A of RLEP 2012 - to ensure that land to which this clause applies is not fragmented by subdivisions that would create additional dwelling entitlements. The dual occupancy (attached) is built and occupied. They are relatively new dwellings. The subdivision of the dual occupancy (attached) will not create additional dwelling entitlements.
The current DA complies with the current development standard of lot size, and thus achieves the objective set out in cl 4.1A(1). The DA is consistent with the objective, and there is no need to consider that objective in detail (including as to what might be a 'dwelling entitlement').
The Land falls within the R2 Low Density Residential zone of RLEP 2012 Land Use Table. The DA complies with the objectives of the, as follows:
1 Objectives of zone
• To provide for the housing needs of the community within a low density residential environment - (response: it complies by providing the housing needs of the community).
…...
• To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area - (response: the dual occupancy satisfies this objective and the strata subdivision reflects the desired future character as evidenced by the grant of the original development consent on 4 December 2020 for the dual occupancy).
• To protect the amenity of residents - (response: the dual occupancy satisfies this objective and the strata subdivision will not impact the amenity of residents).
• To encourage housing affordability - (response: the subdivision will allow each of the dual occupancy dwellings to be sold separately at a lower price that the total price of being sold in one lot; or, alternatively for the two lots to be sold to the one buyer).
• ……
Council conceded at the commencement of the hearing that Contentions 2 and 3 in Council's SOFAC do not remain in contention. The case turns on the definition of 'lot' as it applies to the Lot Size Map in RLEP 2012 and I have already dealt with that issue above.
I also find that the DA complies with the required 15m frontage to Knowles Road Matraville as required by cl 2.1 of Randwick Development Control Plan C1 Low Density Residential 27 June 2023.
After the DA was lodged with Council on 29 January 2024, the owners of adjoining and likely affected neighbouring properties were notified of the proposed development in the DA in accordance with cl 3 of Randwick Development Control Plan 2013. No submissions were received by Council. (Ex 1 SOFAC, p7 par [27]). I also note that there were no objectors on the site view at the commencement of the hearing. There were no submissions or objections to address in accordance with s 4.15(1)(d) of the EPA Act.
As set out above, I have considered the matters set out in s 4.15(1) of the EPA Act, including the public interest pursuant to s 4.15(1)(e). The Applicant has satisfied the requirements of s 4.15(1) of the EPA Act.
In accordance with s 4.16(1)(a) of the EPA Act and s 39(2) of the LEC Act, I shall uphold the appeal and grant consent to the DA subject to conditions in Annexure A (Ex 3 Draft Conditions of Consent).