Page & Anor v Sutherland Shire Council

Page & Anor v Sutherland Shire Council - [2000] NSWLEC 125 - NSWLEC 1993 case summary — Zoe

[16]

The EP&A Act defines " developmen t" as including " (b) the subdivision of land " (section 4(1)). The expression " subdivision of land " is defined as having the meaning given by section 4B (section 4(1)). Section 4B is as follows: 4B (1) For the purposes of this Act, "subdivision of land" means the division of land into two or more parts that, after the division ,would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected: (a) by conveyance, transfer or partition, or (b) by any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition. (2) Without limiting subsection (1), "subdivision of land" includes the procuring of the registration of 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 (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986. (3) However, 'subdivision of land' does not include: (a) a lease (of any duration) of a building or part of a building, or (b) the opening of a public road, or the dedication of land as a public road, by the Crown, a statutory body representing the Crown or a council, or (c) the acquisition of land, by agreement or by compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of land by compulsory process, or (d) a division of land effected by means of a transaction referred to in section 23G of the Conveyancing Act 1919, or (e) the procuring of the registration in the office of the Registrar General of: (i) a plan of consolidation, a plan of identification or a miscellaneous plan within the meaning of section 195 of the Conveyancing Act 1919, or (ii) a strata plan of consolidation or a building alteration plan within the meaning of Strata Schemes(Freehold Development) Act 1973 or the Strata Schemes (leasehold Development) Act 1986. "Land" is defined as including "(d) a building erected on the land" (section 4(1)).
The Strata Act (Part 2 Division 1) allows a subdivision of land (including the whole of a building and part only of a building) to be subdivided into lots, or into lots and common property, by the registration of a plan as a strata plan (section 7(2)). The word "lot" is defined as follows: lot means one or more cubic spaces forming part of a parcel to which a strata scheme relates, … (Section 5(1)).
The terms " strata scheme " is defined in the Strata Act as follows: strata scheme means: (a) the manner of division under this Act, from time to time, of a parcel into lots or into lots and common property and the manner of the allocation under this Act, from time to time, of unit entitlements among the lots, and (b) the rights and obligations, between themselves, of the proprietors, other persons having proprietary interests in or occupying the lots and the body corporate, as conferred or imposed by this Act or by anything done under the authority of this Act and as in force from time to time . (Section 5(1))
The word " parcel " is defined in the Strata Act as follows: parcel means: (a) except as provided in paragraph (b), the land from time to time comprising the lots and common property the subject of a strata scheme, and (b) in relation to a plan lodged for registration as a strata plan the land comprised in that plan. (Section 5(1)).
Section 36 of the Strata Act provides:
Other Acts not to apply to subdivisions under Division 1 (1) Except as otherwise provided in this Act, any provision contained in the Local Government Act 1919, the Conveyancing Act 1919, the Environmental Planning and Assessment Act 1979 or any other Act, being a provision relating to the manner of dividing land or any matter incidental thereto, does not apply to a subdivision effected under Division 1 (2) This section does not affect any requirement to obtain development consent under the Environmental Planning and assessment Act 1979 to a subdivision to be effected under Division 1.
Sub-section 37(1) of the Strata Act provides that a local council shall issue a certificate of approval of a proposed strata plan if it is satisfied as to the matters specified in either paragraph (a) or paragraph (b) of that sub-section. In the present case paragraph (b) is relevant: the council must be satisfied: (b) that: (i) separate occupation of the proposed lots illustrated by that plan will not contravene the provisions of the Environmental Planning and Assessment Act 1979 or any environmental planning instrument within the meaning of that Act, and (ii) any consent required under that Act or instrument has been given in relation to the separate occupation of the proposed lots illustrated by that plan, and … A certificate of approval issued by a council under section 37 is one of the requirements for the registration of a strata plan (Section 8(2)(b).

[17]

Mr M H Tobias QC, who appears for the council, made the following submissions. The expression " subdivision of land " in the EP&A Act expressly includes a strata plan or a strata plan of subdivision within the meaning of the Strata Act (section 4B). Sub-section 36(2) of the Strata Act confirms the need to obtain development consent if such consent is required. The zoning table in the LEP provides that " subdivision " is permissible with development consent in all residential zones. Given the definition of " subdivision of land ", strata subdivision is permissible with development consent. The zoning tables must, however, be read subject to the specific prohibition against the subdivision of dual occupancy housing set out in clause 25. No distinction can be drawn between the reference to " allotments " in clause 25 and the reference to " lots " in the Strata Act. (he referred in this context to the judgments Bignold J in North Sydney Municipal Council v Scott Revay Unn , 9 November 1993, unreported and Smith v Wollondilly Council (1995) 86 LGERA 437). Further, a provision in an environmental planning instrument which prohibits strata subdivision is not a provision relating to the manner of dividing land or any matter incidental thereto as referred to in sub-section 36(1) of the Strata Act, but rather is a provision relating to the permissibility of dividing land. An environmental planning instrument may preclude strata subdivision in spite of section 36 and section 37 of the Strata Act, and this submission is reinforced by the requirement of subsection 37(1) (b) that the council must be satisfied, before it can issue a certificate of approval of a proposed strata plan, that there will be no contravention of the EP&A Act or of any environmental planning instrument by the separate occupation of the proposed lots illustrated by that plan. In the present case there will be a contravention of the LEP (and of the draft Sutherland Shire Local Environmental Plan 2000) upon the division of the land by way of strata subdivision.

[44]

15. Mr M H Tobias QC, who appears for the council, made the following submissions. The expression "subdivision of land" in the EP&A Act expressly includes a strata plan or a strata plan of subdivision within the meaning of the Strata Act (section 4B). Sub-section 36(2) of the Strata Act confirms the need to obtain development consent if such consent is required. The zoning table in the LEP provides that "subdivision" is permissible with development consent in all residential zones. Given the definition of "subdivision of land", strata subdivision is permissible with development consent. The zoning tables must, however, be read subject to the specific prohibition against the subdivision of dual occupancy housing set out in clause 25. No distinction can be drawn between the reference to "allotments" in clause 25 and the reference to "lots" in the Strata Act. (he referred in this context to the judgments Bignold J in North Sydney Municipal Council v Scott Revay Unn, 9 November 1993, unreported and Smith v Wollondilly Council (1995) 86 LGERA 437). Further, a provision in an environmental planning instrument which prohibits strata subdivision is not a provision relating to the manner of dividing land or any matter incidental thereto as referred to in sub-section 36(1) of the Strata Act, but rather is a provision relating to the permissibility of dividing land. An environmental planning instrument may preclude strata subdivision in spite of section 36 and section 37 of the Strata Act, and this submission is reinforced by the requirement of subsection 37(1) (b) that the council must be satisfied, before it can issue a certificate of approval of a proposed strata plan, that there will be no contravention of the EP&A Act or of any environmental planning instrument by the separate occupation of the proposed lots illustrated by that plan. In the present case there will be a contravention of the LEP (and of the draft Sutherland Shire Local Environmental Plan 2000) upon the division of the land by way of strata subdivision.

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