› Breach of development standard prescribing minimum allotment size
› Whether subdivision is a use of land
› Whether subdivision effects a change in use
› Environmental Planning and Assessment Act 1979 (NSW), s 4(1), s 81A(1), s 106
› Environmental Planning and Assessment Regulation 2000 (NSW), cl 41(1)(d)
Environmental Planning Law
› Development standards
› SEPP 1 objection
› Requirements to uphold SEPP 1 objection
› Ways of establishing that compliance with development standard is unreasonable or unnecessary
› Whether objection well-founded
› State Environmental Planning Policy No 1 – Development Standards, cls 3, 6, 7, 8
Environmental Planning Law
› Existing use rights
› Change from existing use to another use
› Whether subdivision application involves change of use
› Whether cessation of existing use constitutes change to another use
› Environmental Planning and Assessment Regulation 2000 (NSW), cl 41(1)(d)
Quick Take
1Subdivision of land is not a use of land and does not effect a change in use; accordingly, a development application for subdivision cannot engage clause 41(1)(d) of the EPA Regulation 2000 permitting change from an existing use to another use, and a development standard regulating subdivision does not derogate from that provision.
2There are five recognised ways to establish that compliance with a development standard is unreasonable or unnecessary under SEPP 1: (1) the objectives of the standard are achieved notwithstanding non-compliance; (2) the underlying objective is not relevant to the development; (3) the underlying objective would be defeated or thwarted by compliance; (4) the standard has been virtually abandoned by the council's own consents; (5) the zoning of the particular land is unreasonable or inappropriate making the standard unreasonable as applied to that land.
3SEPP 1 does not permit a consent authority to rank planning controls in order of importance and dispense with a development standard merely to bring about conformity with another planning control such as permissible uses under zoning; the dispensing power must be exercised on grounds relating to the development standard and the circumstances of the case.
Case Details
Citation[2007] NSWLEC 827
Reported(2007) 156 LGERA 446
CourtNSWLEC
JurisdictionNew South Wales
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