This one is a little bit technical. It follows from one of my pieces last year on minimum lot sizes and lot size averaging, and draws on a recent Land and Environment Court (LEC) ruling on an appeal against QPRC’s refusal to allow the subdivision of what is known as a ‘resulting lot’.
The reader may recall that lot size averaging is a scheme that may be used in our rural and rural residential areas to provide a degree of flexibility when creating a new subdivision without compromising the amenity and overall integrity of these areas. In general, the minimum lot size in our rural residential areas, the focus of this discussion, is 6ha. There are, however, two situations when lots can be smaller: when creating a community title subdivision, when lots as small as 1ha can be created, or when applying lot size averaging provisions, when lots down to 2ha can be created.
In both of these latter cases, of course, conditions apply, and in the present context the relevant condition is that you can’t cut and come again—once a subdivision has been created under one of these ‘concessional’ provisions, none of the lots so created, the so-called ‘resulting lots’, can be further subdivided, no matter what their size. When creating a community title subdivision or when taking advantage of lot size averaging provisions, the subdivision is effectively assessed as an integrated unit within which lots larger than the applicable minimum will generally have been created to offset any smaller lots in the subdivision. Thereafter, the entire unit must effectively remain intact to retain the integrity of the original subdivision.
Note that this restriction does not apply to lots, created by ‘conventional’ subdivision, that simply respect the prevailing minimum lot size. In these situations, lots can be subdivided as many times as one likes, provided that, in the end, no lot is smaller than the prevailing minimum lot size, which, in most of our rural residential areas, is 6ha.
To provide a little more background to the case at point, community title schemes, in addition to being subject to controls under the prevailing Local Environmental Plan (LEP), fall under the remit of the Community Land Development (CLD) Act.
The applicant in the present case had sought approval for the subdivision of a lot that had been created through a previous subdivision. There were several factors at play here, but the application was rejected by Council on the basis that the proposal constituted the subdivision of a ‘resulting lot’.
The applicant, however, argued that the original subdivision, as a neighbourhood scheme under the CLD Act, was not constrained by either the Yarrowlumla Local Environmental Plan (YLEP), which was in force at the time of the original subdivision, or the Palerang LEP (PLEP), under which the present application was being considered. Specifically, the lot in question was not a ‘resulting lot’ because it was created under the CLD Act, which made no mention of ‘resulting lots’.
The interesting part of the ruling was the Commissioner’s assessment that, if a proposal created a situation from which an obvious absurdity would naturally follow, that proposal must fail. The Commissioner drew this conclusion, amongst others, in a 28 page ruling, but I’ll spare you further detail here.
The ruling concluded that the applicant’s proposal, that the lot in question could not be considered a ‘resulting lot’ under the YLEP or PLEP because it had been created under the CLD Act, must fail. The Commissioner observed that, if the logic of that argument were to be followed through, one would have to conclude that no minimum lot size restriction existed for any community title subdivision, which it was noted would be absurd, since an LEP seeks to explicitly identify minimum lot sizes for all subdivisions.
Another factor that the Commissioner drew into her ruling was what she considered to be the clear intent of the LEP in relation to the matter at hand, regardless of arguments surrounding the meaning and/or application of individual clauses within the various pieces of applicable legislation.
When debating the validity of development assessments, applicants often focus on the ‘nuts and bolts’ of their specific situation without stepping back and giving due consideration to the broader objectives of the prevailing planning legislation. They often base their case on why their situation is ‘special’, without fully appreciating how the interpretation they are seeking might undermine the more fundamental objectives of the planning system.
Of course, there are those who feel they should not be constrained at all by a planning system, but that’s more a political debate and one that we might leave for another time and place…