Page & Anor v Sutherland Shire Council

APPLICANTS: M G Craig QC and D A Parry (barrister) SOLICITORS: Michell Sillar & Taylor Kelso

LEGAL REPRESENTATIVES: RESPONDENT: M H Tobias QC SOLICITORS: Abbott Tout

IN THE LAND AND Matters Nos: 10067 & 10150 of 2000 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 26 June 2000

Kevin Page Applicant v Sutherland Shire Council Respondent

No. 10150 of 2000 Ronntex Pty Limited Applicant v Sutherland Shire Council Respondent REASONS FOR JUDGMENT

This is the separate determination of a preliminary question of law pursuant to Part 31 Rule 2 of the Supreme Court Rules (which applies in this Court by dint of the Land and Environment Court Rules 1996 , Part 6 Rule 1(1)). The question in each case is identical and by consent the questions in the two cases were heard together.

In Page v Sutherland Shire Council the applicant has appealed under section 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against the respondent council's refusal of a development application for a detached dual occupancy and for strata subdivision of that development under the Strata Schemes (Freehold Development) Act 1973 ("the Strata Act") at 179 Fowler Road, Illawong.

In Ronntex Pty Limited v Sutherland Shire Council the applicant has appealed under section 97 of the EP&A Act against the respondent council's deemed refusal of a development application to an attached dual occupancy and strata subdivision under the Strata Act at 10 Caringbah Road, Cronulla.

In each case development of the land for the purposes of dual occupancy housing and for subdivision is permissible with development consent under the relevant environmental planning instrument, the Sutherland Shire Local Environmental Plan 1993 ("the LEP"). Dual occupancy housing is defined as meaning "two dwellings on one allotment" (Clause 6 of the LEP; Clause 5 of the draft Sutherland Shire Local Environmental Plan 2000).

The question of law raised by the council in each case is:

Whether the subdivision component of the proposed development is prohibited by reason of clause 25 of Sutherland Shire Local Environmental Plan 1993 or clause 40 of Sutherland Shire Local Environmental Plan 2000 when made." 6. Clause 25 of the LEP relevantly provides as follows:

On and after the day on which Sutherland Local Environmental Plan 1993 (Amendment No. 37) commences, consent must not be granted for a subdivision which created separate allotments for each of two dwellings comprising dual occupancy housing. … 7. Clause 40 of the draft Sutherland Shire Local Environmental Plan 2000 relevantly provides as follows:

On after 1 September 1995 Council must not grant development consent for a subdivision which creates separate allotments for each of two dwellings comprising dual occupancy housing. … 8. The Page development application shows two dwellings each having a yard area, with each dwelling and its yard area comprising a separate strata lot; and areas of common property. The Ronntex development application shows two attached dwellings each with a courtyard area and a car space, with each dwelling and its associated courtyard area and car space comprising a separate strata lot; and an area of common property. The council contends that the strata subdivision component of the two development applications is prohibited by clause 25 of the LEP and would be prohibited of clause 40 of the draft Sutherland Shire Local Environmental Plan 2000.

9. 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)).
10. 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)).
11. 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))
12. 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)).
13. Section 36 of the Strata Act provides:
14. 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.
15. 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).

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.

Mr M G Craig QC, who (with Mr D A Parry) appears for the applicant, made the following submissions. The LEP employs the word " lot " in specifying minimum " lot " sizes for dwelling houses, for dual occupancy housing, and for townhouse or villa house development in the various residential zones (clauses 22A, 22B, 22C, 22E and 22F), rather than the word " allotment " as employed in clause 25. In the former instances the reference to " lot " is clearly a reference to the area of the site. It is thus apparent that the two terms are used interchangeably in the instrument.

Mr Craig next referred to the definition of " dwelling " in the LEP: a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile (Clause 6). Since the proposed strata plan in the present cases involve not only the dwelling but also an adjacent yard area and, in the case of the Ronntex appeal a car space within each lot, the division does not involve separate allotments for each of the dwellings as proscribed by sub-clause 25(1). Moreover, there will be only one " allotment " in each case, being the whole of the land comprised in the strata plan.

Referring again to those clauses of the LEP which prescribe minimum size areas - called minimum " lot " sizes - for dwellings, for dual occupancy housing and for townhouse or villa house development, Mr Craig submits that it was clearly not intended thereby to limit the size of lots into which that form of housing might be divided.

As to sub-section 37(2) of the Strata Act, Mr Craig submits that a prohibition against a strata subdivision in an environmental planning instrument does not fall within an exception provided by that sub-section because the sub-section has no application to a prohibition.

In Mr Craig's submission, clause 25 of the LEP is directed to preventing a Real Property Act subdivision unless it comprises allotments of appropriate size. It is not directed to a strata title subdivision because the words used do not lend themselves to that description. Finally, he submits that it is hard to discern any purpose against a prohibition of strata subdivision, since given the necessity to obtain development consent for dual occupancy, a strata subdivision cannot change anything of environmental consequence. And unlike a Real Property Act subdivision, the presence of a body corporate ensures single control of the whole entity.

The relationship between the Strata Act and environmental planning instruments under the EP&A Act has been considered in a number of cases. It is convenient to refer to three of them. In North Sydney Council v Scott Revay and Unn, Bignold J considered the question of whether the strata subdivision of two dual occupancy developments was governed by clause 11(1) of the North Sydney Local Environmental Plan 1989, which provided that a person shall not " subdivide " land unless the area of " each allotment " to be created by the subdivision was of a specified minimum area. Bignold J noted that the expression " subdivision of land " is defined in the EP&A Act so as to include " subdivision effected under Division 1 of Part 2 of the Strata Titles Act 1973 " (as the Strata Act was then called). Bignold J then noted that Cripps J had held in Fridrich Constructions Pty Limited v Leichhardt Municipal Council (1983) 50 LGRA 22 that development consent under the EP&A Act would be required for a strata subdivision where the planning instrument adopted the definition of " development " contained in the EP&A Act. Bignold J also noted the developer's argument that clause 11(1) of the environmental planning instrument used the term " allotment " (rather than term " lot ") which is foreign to the language of the Strata Titles Act and so manifested a sufficient contrary intention as to displace the application of the definition of " subdivision " provided by the Act. In rejecting the argument, Bignold J also noted that although the Strata Titles Act did not employ the term " allotment " it did employ the term " parcel " which is a comparable or analogous term. His Honour was unable to see within the language of clause 11(1) of the environmental planning instrument any indication to suggest that it was not intended that the defined meaning in the EP&A Act of " subdivision of land " was to apply.

In Smith v Wollondilly Council the applicant had applied for development consent for a strata subdivision of an existing rural holding. Clause 12 of the relevant environmental planning instrument provided that land "shall not be subdivided unless each separate allotment created thereby will have an area of not less than [a specified area]". The applicant appealed against the refusal of the council to grant development consent for the strata subdivision of the holding into two strata lots (each of less than the specified area) and common property. Bignold J followed his earlier judgment in Scott Revay and Unn , holding that there was nothing to displace the definition of " the subdivision of land " in the EP&A Act as including a reference to a subdivision effected under Division 1 of Part 2 of the Strata Titles Act; and further holding that the words " allotment " in clause 12 of the environmental planning instrument is to be interpreted as " an identifiable piece or parcel of land ". In so concluding, Bignold J noted that a strata subdivision effected under Division 1 of Part 2 of the Strata Titles Act is a " subdivision of land ": vide section 7.

The third case is Phillips v Hunters Hill Council (Stein J, 12 June 1996, unreported). The application in that case was for a two lot strata subdivision, the council having already agreed to the granting of consent to the erection of a second detached dwelling on the subject land. Sub-clause 10 (1) of the relevant environmental planning instrument provided that the subdivision of land required development consent; and sub-clause 10(2) provided that the council shall not grant consent to the subdivision of land unless each " allotment " has a specified minimum area. Stein J noted that the bases of the proposed lots embrace the whole of the surface area of the appeal site as in Smith v Wollondilly Council . Stein J then said: " As with Smith, the subdivision does not extend vertically". Stein J stated that the question before the court was whether " an allotment " referred to in the relevant local environmental plan included a lot as defined in the Strata Titles Act. His Honour could see no relevant distinction between the instant case and Smith and concluded that the proposal, although creating " lots " under the Strata Titles Act, also involved the creation two allotments within the meaning of relevant environmental planning instrument.

Mr Craig QC sought to distinguish Smith and Phillips on the ground that they were subdivisions which created two lots covering the whole surface area of the appeal site and the subdivision in each case did not extend vertically, which is not the present case.

It seems to me that there are two answers to this submission. It would mean that sub-clause 25(1) of the LEP in the present case would allow certain types of strata subdivision but not others. It would mean, as Mr Tobias noted, if it was a Smith or a Phillip type of strata subdivision it would be prohibited, but a horizontal strata subdivision would not be prohibited. I cannot see any purpose behind a clause which would prohibit one kind of strata subdivision and not another. Moreover, if one kind of strata subdivision was prohibited but not a strata subdivision of another kind, then the use of the word "allotment" in sub-clause 25(1) of the LEP loses its significance.

The second answer to the submission is that Stein J in Phillips appears to be in error in stating that, as with Smith, the subdivision did not extend vertically. In Smith Bignold J refers (at 443) to the " cubic spaces " comprising the lots. This suggests a subdivision which, contrary to Stein J's assumption, extended both horizontally and vertically. It also seems that Stein J was in error in apparently assuming that the subdivision in Phillips did not extend vertically. The proposed subdivision in each case was a division into the strata title " lots ". A " lot " is defined in the Strata Act as meaning " one or more cubic spaces forming part of the parcel to which a strata scheme relates. .." (section 5). That is to say, the subdivisions with which both Bignold J and Stein J were concerned necessarily include both a horizontal and a vertical division. The long title of the Strata Act states: " An Act to facilitate the subdivision of land into cubic spaces and the disposition of titles thereto ..." As noted above, section 7 of the Strata Act enables land(including the whole or part only of the building) to be subdivided into lots or into lots and common property. As I have noted, a " lot " is defined (section 5) as a cubic space, which necessarily involves both vertical and horizontal division.

I can see no distinction between the cases of Scott Revay and Unn , Smith and Phillips and the present case. In my opinion sub-clause 25(1) of the LEP applies to the proposed strata in the present case. I am reinforced in this view by the fact that the word " lot " is used elsewhere in the LEP to refer to a parcel of land (clauses 22A. 22B, 22C, 22E and 22F). That is to say, the words " lot " and " allotment " are used loosely and interchangeably in the instrument and not in a narrow or technical sense. I am further reinforced in this view by the definition of " subdivision of land " in the EP&A Act to which I have referred (in paragraph 9 above), which includes a strata plan or a strata plan of subdivision within the meaning of the Strata Act. It follows that the reference in sub-clause of the LEP to " subdivision " includes a reference to a strata subdivision. I am further reinforced in this view by the presence of sub-section (2) in section 36 of the Strata Act. It would be a nonsense to suggest that if a strata subdivision is prohibited under the EP&A Act then sub-section 36(2) does not apply, but if it is permissible with development consent then the sub-section does apply. The former proposition would entirely contrary to section 37(1)(b) of the Strata Act, noted in paragraph 14. Finally the registration of a plan as a strata plan effects a subdivision (section 7(2), (2A) of the Strata Act).

For the above mentioned reasons I answer the question of law in each case (reformulated by me) as follows:

Whether the subdivision component of the proposed development is prohibited by reason of clause 25 of Sutherland Shire Local Environmental Plan 1993 or by clause 40 of draft Sutherland Shire Local Environmental Plan 2000 if made.

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.

12. The word "parcel" is defined in the Strata Act as follows:

(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)).

13. Section 36 of the Strata Act provides:

36. 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.

14. 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:

(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).

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.

16. Mr M G Craig QC, who (with Mr D A Parry) appears for the applicant, made the following submissions. The LEP employs the word "lot" in specifying minimum "lot" sizes for dwelling houses, for dual occupancy housing, and for townhouse or villa house development in the various residential zones (clauses 22A, 22B, 22C, 22E and 22F), rather than the word "allotment" as employed in clause 25. In the former instances the reference to "lot" is clearly a reference to the area of the site. It is thus apparent that the two terms are used interchangeably in the instrument.

17. Mr Craig next referred to the definition of "dwelling" in the LEP:

a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile (Clause 6).

Since the proposed strata plan in the present cases involve not only the dwelling but also an adjacent yard area and, in the case of the Ronntex appeal a car space within each lot, the division does not involve separate allotments for each of the dwellings as proscribed by sub-clause 25(1). Moreover, there will be only one "allotment" in each case, being the whole of the land comprised in the strata plan.

18. Referring again to those clauses of the LEP which prescribe minimum size areas - called minimum "lot" sizes - for dwellings, for dual occupancy housing and for townhouse or villa house development, Mr Craig submits that it was clearly not intended thereby to limit the size of lots into which that form of housing might be divided.

19. As to sub-section 37(2) of the Strata Act, Mr Craig submits that a prohibition against a strata subdivision in an environmental planning instrument does not fall within an exception provided by that sub-section because the sub-section has no application to a prohibition.

20. In Mr Craig's submission, clause 25 of the LEP is directed to preventing a Real Property Act subdivision unless it comprises allotments of appropriate size. It is not directed to a strata title subdivision because the words used do not lend themselves to that description. Finally, he submits that it is hard to discern any purpose against a prohibition of strata subdivision, since given the necessity to obtain development consent for dual occupancy, a strata subdivision cannot change anything of environmental consequence. And unlike a Real Property Act subdivision, the presence of a body corporate ensures single control of the whole entity.

21. The relationship between the Strata Act and environmental planning instruments under the EP&A Act has been considered in a number of cases. It is convenient to refer to three of them. In North Sydney Council v Scott Revay and Unn, Bignold J considered the question of whether the strata subdivision of two dual occupancy developments was governed by clause 11(1) of the North Sydney Local Environmental Plan 1989, which provided that a person shall not "subdivide" land unless the area of "each allotment" to be created by the subdivision was of a specified minimum area. Bignold J noted that the expression "subdivision of land" is defined in the EP&A Act so as to include "subdivision effected under Division 1 of Part 2 of the Strata Titles Act 1973" (as the Strata Act was then called). Bignold J then noted that Cripps J had held in Fridrich Constructions Pty Limited v Leichhardt Municipal Council (1983) 50 LGRA 22 that development consent under the EP&A Act would be required for a strata subdivision where the planning instrument adopted the definition of "development" contained in the EP&A Act. Bignold J also noted the developer's argument that clause 11(1) of the environmental planning instrument used the term "allotment" (rather than term "lot") which is foreign to the language of the Strata Titles Act and so manifested a sufficient contrary intention as to displace the application of the definition of "subdivision" provided by the Act. In rejecting the argument, Bignold J also noted that although the Strata Titles Act did not employ the term "allotment" it did employ the term "parcel" which is a comparable or analogous term. His Honour was unable to see within the language of clause 11(1) of the environmental planning instrument any indication to suggest that it was not intended that the defined meaning in the EP&A Act of "subdivision of land" was to apply.

22. In Smith v Wollondilly Council the applicant had applied for development consent for a strata subdivision of an existing rural holding. Clause 12 of the relevant environmental planning instrument provided that land "shall not be subdivided unless each separate allotment created thereby will have an area of not less than [a specified area]". The applicant appealed against the refusal of the council to grant development consent for the strata subdivision of the holding into two strata lots (each of less than the specified area) and common property. Bignold J followed his earlier judgment in Scott Revay and Unn, holding that there was nothing to displace the definition of "the subdivision of land" in the EP&A Act as including a reference to a subdivision effected under Division 1 of Part 2 of the Strata Titles Act; and further holding that the words "allotment" in clause 12 of the environmental planning instrument is to be interpreted as "an identifiable piece or parcel of land". In so concluding, Bignold J noted that a strata subdivision effected under Division 1 of Part 2 of the Strata Titles Act is a "subdivision of land": vide section 7.

23. The third case is Phillips v Hunters Hill Council (Stein J, 12 June 1996, unreported). The application in that case was for a two lot strata subdivision, the council having already agreed to the granting of consent to the erection of a second detached dwelling on the subject land. Sub-clause 10 (1) of the relevant environmental planning instrument provided that the subdivision of land required development consent; and sub-clause 10(2) provided that the council shall not grant consent to the subdivision of land unless each "allotment" has a specified minimum area. Stein J noted that the bases of the proposed lots embrace the whole of the surface area of the appeal site as in Smith v Wollondilly Council. Stein J then said: "As with Smith, the subdivision does not extend vertically". Stein J stated that the question before the court was whether "an allotment" referred to in the relevant local environmental plan included a lot as defined in the Strata Titles Act. His Honour could see no relevant distinction between the instant case and Smith and concluded that the proposal, although creating "lots" under the Strata Titles Act, also involved the creation two allotments within the meaning of relevant environmental planning instrument.

24. Mr Craig QC sought to distinguish Smith and Phillips on the ground that they were subdivisions which created two lots covering the whole surface area of the appeal site and the subdivision in each case did not extend vertically, which is not the present case.

25. It seems to me that there are two answers to this submission. It would mean that sub-clause 25(1) of the LEP in the present case would allow certain types of strata subdivision but not others. It would mean, as Mr Tobias noted, if it was a Smith or a Phillip type of strata subdivision it would be prohibited, but a horizontal strata subdivision would not be prohibited. I cannot see any purpose behind a clause which would prohibit one kind of strata subdivision and not another. Moreover, if one kind of strata subdivision was prohibited but not a strata subdivision of another kind, then the use of the word "allotment" in sub-clause 25(1) of the LEP loses its significance.

26. The second answer to the submission is that Stein J in Phillips appears to be in error in stating that, as with Smith, the subdivision did not extend vertically. In Smith Bignold J refers (at 443) to the "cubic spaces" comprising the lots. This suggests a subdivision which, contrary to Stein J's assumption, extended both horizontally and vertically. It also seems that Stein J was in error in apparently assuming that the subdivision in Phillips did not extend vertically. The proposed subdivision in each case was a division into the strata title "lots". A "lot" is defined in the Strata Act as meaning "one or more cubic spaces forming part of the parcel to which a strata scheme relates..." (section 5). That is to say, the subdivisions with which both Bignold J and Stein J were concerned necessarily include both a horizontal and a vertical division. The long title of the Strata Act states: "An Act to facilitate the subdivision of land into cubic spaces and the disposition of titles thereto..." As noted above, section 7 of the Strata Act enables land(including the whole or part only of the building) to be subdivided into lots or into lots and common property. As I have noted, a "lot" is defined (section 5) as a cubic space, which necessarily involves both vertical and horizontal division.

27. I can see no distinction between the cases of Scott Revay and Unn, Smith and Phillips and the present case. In my opinion sub-clause 25(1) of the LEP applies to the proposed strata in the present case. I am reinforced in this view by the fact that the word "lot" is used elsewhere in the LEP to refer to a parcel of land (clauses 22A. 22B, 22C, 22E and 22F). That is to say, the words "lot" and "allotment" are used loosely and interchangeably in the instrument and not in a narrow or technical sense. I am further reinforced in this view by the definition of "subdivision of land" in the EP&A Act to which I have referred (in paragraph 9 above), which includes a strata plan or a strata plan of subdivision within the meaning of the Strata Act. It follows that the reference in sub-clause of the LEP to "subdivision" includes a reference to a strata subdivision. I am further reinforced in this view by the presence of sub-section (2) in section 36 of the Strata Act. It would be a nonsense to suggest that if a strata subdivision is prohibited under the EP&A Act then sub-section 36(2) does not apply, but if it is permissible with development consent then the sub-section does apply. The former proposition would entirely contrary to section 37(1)(b) of the Strata Act, noted in paragraph 14. Finally the registration of a plan as a strata plan effects a subdivision (section 7(2), (2A) of the Strata Act).

28. For the above mentioned reasons I answer the question of law in each case (reformulated by me) as follows:

Whether the subdivision component of the proposed development is prohibited by reason of clause 25 of Sutherland Shire Local Environmental Plan 1993 or by clause 40 of draft Sutherland Shire Local Environmental Plan 2000 if made.