In our article, “Can strata subdivision avoid minimum lot sizes in NSW?” we reported on the decision of the Land and Environment Court in DM & Longbow Pty Ltd v Willoughby City Council  NSWLEC 17. In that case the Court held that the minimum lot sizes specified under clause 4.1(4) of the Standard Instrument LEP applied to lots being created under a strata scheme. While no doubt legally correct, this outcome came as a great surprise to many of us and was clearly not what was intended.
You can read our previous article on the Court’s decision here.
The New Amendment
The Standard Instrument (Local Environmental Plans) Order 2006 (the Standard Instrument Order) has now been amended to clarify that lots under a strata plan or community title scheme are not required to meet the minimum lot sizes shown on the applicable Lot Size Map of a local environmental plan. This amendment effectively reverses the Court’s decision in the Longbow case.
Where a Council has adopted clause 4.1(4) of the Standard Instrument in its LEP, following the amendment of the Order on 20 April 2018, the sub-clause should now read:
4. This clause does not apply in relation to the subdivision of any land:
- by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or
- by any kind of subdivision under the Community Land Development Act 1989.
A possible trap
Clause 8 of the Standard Instrument Order provides that the amendments made by an amending order “do not apply to or in respect of any development application that was made, but not determined, before the commencement of the amending order”.
This seems to mean that the amended provision won’t apply to any pre-existing DA and that, to take advantage of the changes brought about by the amendment, existing DA’s will need to be withdrawn and replaced with a new DA.
Unless a further amendment is made to apply a different savings provision, Councils will need to be careful to apply the correct version of clause 4.1(4) having regard to the date on which a DA was made. It is likely that any DA lodged prior to 20 April 2018 proposing the creation of lots by registration of a strata plan will still not comply with the relevant minimum lot size despite the amendment of the Standard Instrument Order.