DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 173

DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 173

Clause 4.1(4) of Willoughby Local Environmental Plan 2012 exempts only the subdivision of individual lots that are already in an existing, registered strata plan from the minimum lot size requirement; it does not exempt the creation of lots under a proposed strata plan. Therefore, for the applicant's proposal to create strata lots (by registering a new strata plan), the minimum lot size standard applies and consent cannot be granted for lots below the minimum size.

Parties
Applicant: DM & Longbow Pty Ltd; Respondent: Willoughby City Council
Jurisdiction
Australia
Judgment Date
11 December 2017
Procedural Posture
Appeal / Appeal on a Question of Law From Commissioner's Decision
Outcome
Appeal dismissed
Legal Topics
Strata Subdivision, Minimum Lot Size Requirement, Interpretation of Local Environmental Plans, Delegated Legislation Construction, Dual Occupancy Subdivision
Planning and Environment Law Strata Subdivision Minimum Lot Size Requirement Interpretation of Local Environmental Plans Delegated Legislation Construction Dual Occupancy Subdivision

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Parties

DM & Longbow Pty Ltd

Applicant

Willoughby City Council

Respondent

Procedural Posture

Appeal / Appeal on a Question of Law From Commissioner's Decision

Legal Issues

  1. 1 Whether clause 4.1(4) of Willoughby Local Environmental Plan 2012 exempts all strata subdivisions from the minimum lot size standard, or only applies to subdivision of individual lots within an existing strata plan
  2. 2 Whether the Commissioner's construction of cl 4.1(4) was correct in law

Ratio Decidendi

Clause 4.1(4) of Willoughby Local Environmental Plan 2012 exempts only the subdivision of individual lots that are already in an existing, registered strata plan from the minimum lot size requirement; it does not exempt the creation of lots under a proposed strata plan. Therefore, for the applicant's proposal to create strata lots (by registering a new strata plan), the minimum lot size standard applies and consent cannot be granted for lots below the minimum size.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • The applicant is to pay the respondent's costs of the appeal.