COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of a development application DA-2020/60 seeking development consent for strata subdivision of an existing dual occupancy development (the Proposed Development) at the property at 15A Hart Street, Lane Cove North Lot 2 in DP 605537 (the Site).
A description of the Site including the zoning is relevant to the issues in dispute in these proceedings. The Statement of Facts and Contentions (SOFAC) filed 9 July 2020 (Exhibit 1) provides the following succinct description of the Proposal Development and the Site:
"[2] The [S]ite is proposed to be split into two strata lots, proposed lot 1 with an area of 506m2 and proposed lot 2 with an area of 329m2. Each lot will include one Level of the existing two-level dual occupancy.
[3] No physical works are proposed in the Proposed Development.
[4] The subject site is a battle-axe block located on the northern side of Hart Street, Lane Cove North.
[…]
[8] The subject site contains a two-storey attached dual occupancy, an in-ground swimming pool, hard stand car park (with cabana), and outdoor terrace areas.
[…]
[11] On 11 October 2019 an Occupation Certificate was issued in respect to the dual occupancy conversion.
[…]
[13] The site is located within the E4 Environmental Living zone under the Willoughby Local Environmental Plan 2012 (WLEP 2012)."
The Respondent Council raised 3 contentions in the SOFAC of which only the first contention remains in dispute and relevant to these proceedings, namely, that the application should be refused because it does not comply with cl 4.1C of the Willoughby Local Environmental Plan 2012 (WLEP) and the Respondent provides the following two reasons:
1. Firstly, the proposed strata lots will be less than the minimum lot size (cl4.1C(1B)); and
2. Secondly, it has not been at least 5 years since the Occupation Certificate was issued for the dual occupancy (cl 4.1C(1)(e)).
The issue to be determined in these proceedings is fundamentally a jurisdictional prerequisite and the court is tasked with considering the legal arguments submitted by the parties regarding the argument about the Court's power being limited by the application of cl 4.1C of WLEP in circumstances where cl 4.1C(1A) of WLEP provides that "consent must not be granted to the subdivision of a lot on which there is a dual occupancy except in accordance with cl 4.1C".
The parties referred to the judgments of DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 1358 (DM & Longbow) heard by Commissioner Dixon (as she then was) and the subsequent s 56A appeal DM & Longbow Pty Ltd v Willoughby City Council (2017) 228 LGERA 342; [2017] NSWLEC 173 (DM & Longbow Appeal) heard by Preston CJ, which approved the development of a dual occupancy on the Site but dismissed the appeal directed to the subdivision of the Site. It is common ground between the parties that:
1. Commissioner Dixon (as she then was) considered whether cl 4.1 of WLEP permitted strata subdivision and she held that subdivision was not permissible;
2. the DM & Longbow Appeal did not find against the Commissioner; and
3. cl 4.1 and 4.1C of WLEP 2012 have since been amended.
The parties prepared and filed written submissions. Below is a table compiled by the Respondent and adopted by the Applicant in submissions. The table is useful to compare the differences between the former provisions and the current provisions:
Former WLEP provisions Current WLEP provisions (commenced 20 April 2018)
4.1 Minimum subdivision lot size … (4) This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme. 4.1 Minimum subdivision lot size … (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 (b) by any kind of subdivision under the Community Land Development Act 1989.
4.1C Minimum subdivision lot size for dual occupancies
(1A) Despite any other provision of this Plan, development consent must not be granted to the subdivision of a lot on which there is a dual occupancy except in accordance with this clause.
4.1C Minimum subdivision lot size for dual occupancies (1) … (2) To avoid doubt, this clause does not affect the right to subdivide a dual occupancy under clause 4.1. (1B) Development consent may be granted to the subdivision of a lot on which there is a dual occupancy if the size of any lot resulting from the subdivision is not to be less than the minimum size shown on the Lot Size Map in relation to that lot.
(1) …
(2) (Repealed)
[2]
Town Planning Experts Mark Bolduan, planner for the Respondent and Kerry Nash, Consultant planner for the Applicant (the Experts) prepared a joint expert report filed 17 August 2020 (Joint Report), marked Exhibit 2, and a supplementary report dated 25 August 2020 marked Exhibit C. The Experts have agreed at par [2.2.2(b)] of the Joint Report that the minimum lot size indicated for the Site on the WLEP lot size map is 650m2.
Mr Bolduan expressed his opinion on page 4 of the Joint Report that the exclusion of strata plan subdivisions in cl 4.1(4) is expressed to only apply to "this clause" that is, the exclusion applies only to cl 4.1 and therefore the exclusion does not apply to cl 4.1C. Mr Bolduan concludes that:
"The exclusion of strata subdivision from clause 4.1 therefore has no relevance to the interpretation of Clause 4.1C."
After stating the (disputed) fact that the Application fails to achieve the minimum lot size indicated in the Lot Size Map, Mr Bolduan concludes with the statement that the Proposed Development:
"does not comply with clause 4.1C of the WLEP for the reasons stated in the Council's Contention 1 [in the Respondent's Statement of Facts and Contentions filed 9 July 2020]."
Mr Nash, at 2.1.2 of the Joint Report, says that this is a matter for legal argument but nevertheless offers some commentary from a town planning perspective. This commentary is consistent with the compliance check section of the Statement of Environmental Effects (SEE) prepared by Mr Nash of KN Planning Pty Limited dated March 2020 and filed 12 May 2020 with the Class 1 Application (Exhibit A). At pages 6 and 7 Mr Nash undertakes a compliance check and addresses cl 4.1C(1B) and concludes that
"The effect of cl 4.1(4)(a) is that there is no minimum subdivision lot size for strata subdivision. […] Since there is no minimum subdivision size for strata subdivision, all strata subdivision of dual occupancies falls within cl 4.1C(1B). Cl 4.1C(1) only applies if clause 4.1C(1B) does not apply, that is if the minimum lot size is not met. Because cl 4.1C(1B) applies to strata subdivision, cl 4.1C(1) does not apply. Since cl 4.1C(1) does not apply to this application, it is not subject to the 5 year restriction in cl 4.1C(1)(e)."
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Submissions - the legal argument.
In relation to the second reason given by the Respondent regarding the fact that it has not been at least 5 years since the Occupation Certificate was issued for the dual occupancy (cl 4.1C(1)(e)), the Applicant argues that cl 4.1C(1)(e) of WLEP does not apply to the Proposed Development because there is no minimum lot size for strata subdivision under WLEP. The Applicant relies on cl 4.1(4) of WLEP which states that cl 4.1 (titled "Minimum subdivision lot size") does not apply in relation to the subdivision of any land:
4.1(4)(a) by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015 […]
and concludes that there is therefore no minimum lot size and the jurisdictional limitations under cl 4.1C(1)(b), (d) and (e) do not apply to the Proposed Development.
This argument, that the Proposed Development is not subject to any minimum lot size, is also relied on by the Applicant to dispute the first reason put by the Respondent. The Applicant's proposition is that cl4.1C(1B) renders subdivision of a dual occupancy permissible regardless of the size of the ultimate lot resulting from the subdivision on the basis that the Lot Size Map does not apply because the Proposed Development seeks consent for strata subdivision. The Applicant, in response to my question, expanded the proposition by clarifying that cl 4.1C(1B) (and the Lot Size Map) would apply to lot sizes resulting from a Torren title subdivision only, that it, the Applicant distinguishes this Proposed Development (a strata subdivision which is caught by cl 4.4(4) and not subject to minimum lot sizes) from a Torren title subdivision (which would be caught by the Lot Size Map minimum lot size of 650m2.
The Respondent acknowledges cl 4.1(4) of WLEP however, in relation to the subdivision of dual occupancies the Respondent relies on cl 4.1C(1A) which provides:
4.1C Minimum subdivision lot size for dual occupancies
(1A) Despite any other provision of this Plan, development consent must not be granted to the subdivision of a lot on which there is a dual occupancy except in accordance with this clause.
(1B) Development consent may be granted to the subdivision of a lot on which there is a dual occupancy if the size of any lot resulting from the subdivision is not to be less than the minimum size shown on the Lot Size Map in relation to that lot.
(1) Development consent may also be granted to the subdivision of a lot on which there is a dual occupancy if -
(a) the lot is not a lot in the area identified as "Area 1" on the Dual Occupancy Restriction Map, and
(b) the area of each lot resulting from the subdivision is at least 350 square metres, and
(c) each of the resulting lots will have one of the dwellings on it, and
(d) the floor space ratio of each dwelling does not exceed -
(i) 0.4:1, or
(ii) any floor space ratio specified under clause 4.4A for a building on the lot, whichever is the lesser, and
(e) a final occupation certificate was issued for the dual occupancy at least 5 years before the development consent is granted.
[…] [emphasis added]
I accept the Respondent's conclusion that:
"Clause 4.1(4)(a) does not exclude the Land from the operation of the minimum lot size map. Rather, it excludes strata subdivisions from the operation of clause 4.1. The map in and of itself is not an operative provision of the WLEP. Rather, it is a tool that assists in understanding the application of the clauses that refer to the Lot Size Map. This is an important distinction, as the minimum lot size map remains relevant to the application of clause 4.1C."
The Respondent argues that cl 4.1C of WLEP places a control despite any other provision of the WLEP, over all types of subdivision (strata and Torrens title subdivision) of a specific type of development, namely dual occupancies.
In the DM & Longbow Appeal, Preston CJ observed in relation to the WLEP:
[22] […] Separate provision is made for certain types of subdivisions in certain zones to be subject to different development standards (e.g. cl 4.1A (strata subdivision in Zone B3 Commercial Core), cl 4.1B (subdivision of shop top housing) and cl 4.1C (subdivision of a dual occupancy) of WLEP). Together, the provisions of WLEP reveal a carefully conceived scheme regulating different types of subdivision of different land in different zones.
The Respondent submits, and I accept, that cl 4.1C does not refer expressly to subdivision under the Strata Schemes Development Act 2015 but refers to subdivision generally. The Respondent referred the Court to EPA Act which defines "subdivision of land" as follows:
6.2 Meaning of "subdivision" of land (cf previous s 4B)
(1) For the purposes of this Act, subdivision of land means the division of land into 2 or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. […]
(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.
[…] [emphasis added]
The Applicant did not contest this definition.
In DM & Longbow, Dixon C found as follows:
[35] … I accept that s 11 of the Interpretation Act requires me in this case to rely on the definition of 'Subdivision of land' in the EPA Act in the absence of a definition in the instrument. Applying that definition to the use of the word 'subdivision' in cl 4.1 I must find that the clause includes a proposed strata subdivision and the exemption in subclause (4) only applies to subdivision of individual lots in an existing strata plan.
The Respondent argues that analogously, the word 'subdivision' in cl 4.1C imports the definition of 'Subdivision of land' found in the EPA Act, and applies to strata subdivision as well as Torrens title subdivision of dual occupancies.
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Decision
I find that the Lot Size Map applies to this Proposed Development and that the Proposed Development is therefore subject to the minimum lot size of 650m2.
I find that cl 4.1C of WLEP operates 'despite any other provision of the WLEP' which means that, notwithstanding the wording of cl 4.1(4), cl 4.1C addresses a specific subdivision situation, being subdivision of a dual occupancy, whereas, cl 4.1(4) of WLEP serves as a carve out of the application of cl 4.1 only (in that it refers to the clause itself and not the plan, unlike cl 4.1C of WLEP) insofar as strata plans or strata plans of subdivision under the Strata Schemes Development Act 2015 are concerned. Cl 4.1C applies controls to a specific type of development (dual occupancies) and applies 'despite any other provision of this Plan', whereas, cl 4.1 places controls on subdivisions generally, regardless of the specific type of development.
I find that cl 4.1(4) of WLEP is relevant only to the application to cl 4.1 ('this clause") and the exclusion in that provision has no application to the operation of cl 4.1C of WLEP which in turn, is limited to dual occupancies and places controls over dual occupancy 'despite' cl 4.1(4).
Further, I am unable to accept the Applicant's proposition that the only work cl 4.1C(1B) has to do is in relation to Torrens title subdivision. If this proposition were correct, the words 'this clause' in cl 4.1(4) and "despite any other provision of this Plan" in cl 4.1C would be meaningless. It would also result in a provision of an environmental planning instrument rendering ineffective the definition of subdivision of land in s 6.1 of the EPA Act.
I find that cl 4.1C is expressed in terms of (unlimited or general) subdivision and is not limited to either strata or Torrens in the context of an express limitation of cl 4.1C WLEP to dual occupancies, or to put it another way, cl 4.1C is a carve out subset of controls which apply expressly to any form of subdivision of dual occupancy and to which cl 4.1(4) does not apply. Accordingly, the Lot Size Map is relevant and applicable to the interpretation of cl 4.1C(1B) and directly impacts the Proposed Development.
The Court's jurisdiction is bound by the jurisdictional prerequisites set out in cl 4.1C of the WLEP by operation of subclause (1A) which states
(1A) Despite any other provision of this Plan, development consent must not be granted to the subdivision of a lot on which there is a dual occupancy except in accordance with this clause. [emphasis added]
As a result of the opening phrase "despite any other provision of this Plan" in cl 4.1C(1A) the limited exclusion provided for in cl 4.1(4)(a) of WLEP has no impact on the application of the balance of cl 4.1 Minimum subdivision lot size to cl 4.1C generally, and in particular in importing the Lot Size Map provisions into cl 4.1C(1B). Therefore, as the Proposed Development will result in lot sizes being less than the minimum lot size of 650m2 as shown for the Site on the Lot Size Map cl 4.1C(1B) of WLEP does not enable the Proposed Development nor does it empower the Court to provide its consent.
Finally, I find that cl 4.1C(1) is an enabling subclause setting out conditions which, if satisfied, may empower the court's jurisdiction to grant consent, that is, provided all conditions listed in cl 4.1C(1)(a) to (e) are satisfied.
As a matter of fact, the Proposed Development does not satisfy the conditions of cl 4.1C(1)(b) (prescribing a minimum lot size of 350m2) and cl 4.1C(1)(e) which requires a period of time of not less than 5 years since the issue of the final occupation certificate for the dual occupancy.
As the Court's jurisdiction is prescribed by cl 4.1C of the WLEP and the enabling aspects of that clause are not satisfied, the Court has no power to grant the approval for the strata subdivision of an existing dual occupancy development as sought in these proceedings at the property at 15A Hart Street, Lane Cove North Lot 2 in DP 605537 (the Site). Accordingly, I am not required to consider the aspects regarding contention 2 and contention 3 regarding Community Property in the draft plan of strata subdivision.
The Court makes the following orders:
1. The appeal is dismissed.
2. Development Application for the strata subdivision of an existing dual occupancy development (the Proposed Development) at the property at 15A Hart Street, Lane Cove North Lot 2 in DP 605537 is refused.
3. Exhibits to be returned to the parties, except Exhibits A, B and 1.
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Decision last updated: 28 September 2020