There have been a couple of situations recently that revolve around subdivision lot sizes, a key element of the subdivision potential of a parcel of land—a dwelling cannot be constructed on just any parcel of land. In some cases, however, size is not all that counts.
Lot size issues generally come into play when a property owner:
- Wants to subdivide an existing dual occupancy development;
- Wants to subdivide an existing lot for the purpose of sale and subsequent development; or
- Wants to build a dwelling on a vacant lot.
The bottom line is that, in each of these situations, if approval for a dwelling is being sought, the size of the lot(s) involved must generally be greater than the minimum specified on the Lot Size Map in the relevant Local Environmental Plan (LEP). Within our rural and rural residential areas, the situation becomes a little more complicated if the option of lot size averaging is or has been exercised in creating a lot.
In our western rural areas (the former Yarrowlumla Shire), the minimum lot size for a dwelling is 80ha (200 acres), in the east (the former Tallaganda Shire) it is 40ha (100 acres), while in our rural residential areas it is generally 6ha (15 acres). In the rural areas, the lot size is set largely to help preserve agricultural land. In our rural residential areas the lot size is set to help create and preserve the amenity of the areas in question.
In the present context, the subdivision of a dual occupancy development is subject to two conditions. The first is the prevailing minimum lot size, and the second is whether or not the lot in question was created under lot size averaging provisions. If the latter, no matter how large the lot is, under the current LEP it cannot be further subdivided. This condition notwithstanding, for subdivision of a dual occupancy development to be considered, the existing lot must generally be at least twice the applicable minimum lot size, so that subdivision could create two lots of at least the minimum permissible size.
In relation to more general subdivision, similar conditions apply. If the lot in question was created under lot size averaging provisions, it cannot be further subdivided, whatever its size. If the lot is an original crown portion, or has not been subject to lot size averaging provisions, subdivision may be possible if the resulting lots satisfy minimum lot size requirements.
Lot size averaging provisions were designed to provide a degree of flexibility in the style of permitted development. The basic principle is that lots smaller than the minimum lot size would be permitted provided that the average size of all lots created through a subdivision is no less than the applicable minimum. This will necessarily also then require the creation of at least one lot that is larger than the minimum and, to preserve the intent of lot size averaging, a subsequent condition applies that such lots cannot be further subdivided, no matter how large they are.
In our western rural areas, a subdivision may include up to five lots that are as small as 8ha (20 acres), provided the average of all lots in the subdivision is not less than 80ha. In our rural residential areas, lots (the number is not limited) can be as small as 2ha (5 acres), provided the average of all lots in the subdivision is not less than 6ha.
The result of the various lot size conditions is that the average density within our rural residential areas should not exceed one dwelling per 6ha, dual occupancy and secondary dwelling developments notwithstanding. This is fundamentally why further subdivision of a lot that has been created under the lot size averaging provisions is not permitted—smaller lots will have been created on the proviso that the larger lots that were created to offset these smaller lots remain as such.
In the rural areas, the intent is more the preservation of larger agricultural and environmental areas, while providing rural landholders some flexibility in how they finance their agricultural operations.
Whatever the situation, it is important to appreciate that the fact that subdivision of, or development within a lot might be permitted within a particular land use zone does not mean it automatically will be. Conditions invariably apply and the only way to be certain of what conditions might apply in a given situation is to talk to council’s planning staff. It doesn’t cost anything to ask.
Comment from Peter oslear
16 June 2020 @ 09:20
Hi Pete,
Thankyou for providing this, it is very helpful. However one element appears to be missing; how long should the restriction on the resulting lot remain in place? This is specifically relevant noting the current amalgamation of the QPRC LEPs.
I would be grateful for any views you may offer but I would suggest that there are two central considerations; either a temporal restriction of perhaps 20 years. Alternatively, the restriction could remain in place until the next minimum lot size is adjusted (presumably lower – there would be no need if the minimum lot size is adjusted up).
In either event, it would appear inherently illogical to leave the restriction in place permanent as this would create inequity between landowners for how the land was decided 50 years ago.
I would also note that asking for our property was not free – I was requested to put through a specific application that from recollection was approximately $250 to find out!
Kind regards,
Pete Oslear
0403317333
Reply from Pete
16 June 2020 @ 11:45
Hi Peter,
Last thing first—the free bit is the advice about whether or not something may be possible and what conditions might apply. There will, however, invariably be a fee associated with a formal investigation of and/or response to a specific case.
As far as the time frame issue is concerned, any conditions and/or restrictions will, broadly speaking, invariably remain in place for as long as the land use management strategy upon which they are based remains.
At the outset, it is important to appreciate that this is not a matter of whether or not someone can realise financial gain from a property investment, it is a question of land use management. While ever the prevailing land use management strategy seeks to preserve agricultural lands or a particular amenity in, say, a rural residential area, the local planning legislation will reflect the measures adopted to preserve these characteristics. If land use management strategies change, or particular measures are no longer considered effective or appropriate with respect to achieving the adopted strategic planning objectives, the relevant legislation will change accordingly. In this context, restrictions may be added or reinforced, or they may be eased or removed.
As it is, the various strategic plans that guide planning legislation work on a 20-25 year time frame, although they are invariably updated/refined along the way. The last local strategic plan that dealt with the present issue, the Palerang Rural Lands Strategy, considered lot size and averaging issues in great detail and resolved to leave things as they were, as the existing conditions were deemed to be serving their intended purpose. Reductions in minimum lot sizes and various aspects of the averaging provisions were all considered, but the only changes ultimately deemed necessary were those required to remove loop-holes that had been exploited to circumvent the existing provisions.
It is perhaps also important to appreciate that local strategic plans and planning legislation (LEPs) are not developed in isolation, they are invariably dependent on higher level (State government) regional and state strategic planning objectives. As such, local plans may be constrained by higher-level objectives, or they may change on the whim of the State government of the day. The preservation of agricultural lands is, for example, a State-level objective and the prevailing lot sizes and lot size averaging provisions are simply one way of achieving this objective in relevant localities while providing some financial flexibility for farmers.
In the case of our rural residential areas, the current State policy is to discourage this style of development, as it is considered to be inefficient with respect to infrastructure maintenance and the delivery of [state funded] services. That’s a State-level policy, one we simply work with, but it makes it unlikely that the State would consider endorsing a reduction in rural residential lot size, even if we, locally, thought it might be a good idea, as that would exacerbate the problem they are trying to avoid. The State objective, as presented in their current 20-year strategic plan, is to focus population increases in existing, established urban areas.
To the best of my knowledge, the current minimum lot sizes have been in place since LEPs were introduced in the early 80s. That’s near enough to 40 years ago, and following our most recent strategic planning exercise, they are still considered appropriate for the next 20 years. The recent amalgamation didn’t really change any of this as most of the rural and rural residential lands subject to lot size averaging provisions in both former council areas had been part of the former Yarrowlumla Shire, and therefore developed with the same strategic objectives and previously managed under the same Yarrowlumla LEP.
Comment from Peter oslear
16 June 2020 @ 21:19
Hi Pete,
Thanks for your response. I tend to agree that there is any need or desire to change the overall framework regarding current zoning or minimum lot size.
I do however remain concerns that the new draft LEP which retains the E4 lot averaging resulting lot restrictions from the 1986 LEP pursuant to draft clause 4.2B(5)(b)(5). This means than any lot averaging subdivisions created under a 34 year old plan will continue limit how the land is used for likely the next ten or more years. Removing this clause would not change the overall amenity of the land and would be consistent with the current planning and strategy.
Notably, the minimum lot size for E4 subdivision changed from 8ha to 6ha in the Yarrowlumla Local Environmental Plan 1993. As such, to hold the 1986 LEP restrictions in place even though in 1993 it was assessed that it was appropriate to lower the minimum lot size for the area appears inconsistent.
Presumably, a holistic assessment must have been carried out of all lot sizes in the E4 zone to support the 1993 LEP and it was determined that it was appropriate to lower the minimum size. As a result, I am finding it difficult to understand that based on that assessment, it remains necessary or appropriate to retain the restrictions from previous LEPs from more than 30 years ago.
I would be grateful if you could elaborate on this aspect, particularly if I have missed something.
I looked up the Palerang Rural Lands Strategy you mentioned and noted action number 8C2 “Possibly review lot sizes and lot ‘averaging’ subdivision provisions”. Are you aware of whether or not this action item was completed and if so, what was the outcome?
Thanks again for your assistance.
Kind regards,
Pete Oslear
Reply from Pete
18 June 2020 @ 01:21
We’re starting to stray away a little here from land use planning into the political domain. I cannot really comment on the motivation for changes that might have been made back in 1993 but I can make the observation that the fact that a particular lot size might be considered appropriate for a future subdivision does not automatically mean that lot sizes in previous subdivisions should be reassessed. The lot size averaging provisions just complicate this issue even further. I could certainly provide you with examples of subdivisions that might be permitted if the older lot size averaging provisions were revoked, but would not have been permitted at the time of the original subdivision if the current minimum lot size were applicable at that time.
We [council] have been through all of this and the only practical way to preserve the original intent of the respective lot size averaging provisions is to keep them in place in perpetuity. If, at some point in the future, preservation of this intent is no longer considered important, things will undoubtably change.
In the present case, the simple fact is that the provisions as they currently stand were deemed to preserve the intended amenity of our rural residential areas when they were previously amended, and there was no perceived need for change when they were last reviewed. It is not really relevant how long provisions have been in place, or whether or not other provisions might serve the purpose—if the existing provisions are proven to serve their purpose, there is little justification for change. The question is not so much one of whether or not change would have a negative impact on the existing amenity as it is one of what benefit, from a land use management perspective, change would bring.
As far as the recommendations from the Palerang Rural Lands Strategy are concerned, the reference to reviewing minimum lot sizes and lot size averaging provisions was more to do with rationalising the regulations that apply to the rural lands in the former Tallaganda and Yarrowlumla Shire areas. The minimum lot size in the rural areas of the former Tallaganda Shire is 40ha, while in the former Yallowlumla Shire it is 80ha. Rural subdivision in the former Yarrowlumla Shire, however, could take advantage of lot size averaging provisions, while that in the former Tallaganda Shire could not. Unfortunately, the former Palerang Council failed to successfully address this disparity and so it remains with us today, no doubt to be revisited some time in the future.
Pete Harrison ~ The QPR Blog cross-reference
6 March 2021 @ 00:17
[…] Minimum Lot Sizes […]