DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 1358

DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 1358

The exemption in cl 4.1(4) of the Willoughby Local Environmental Plan 2012 applies only to the subdivision of individual lots within an existing strata plan, not to the creation of new strata lots. Therefore, the minimum subdivision lot size requirement in cl 4.1 applies to proposals for new strata subdivisions, rendering the proposed subdivision unlawful as the strata lots would not meet the minimum lot size. The dual occupancy development itself may be approved, but not the subdivision.

Jurisdiction
Australia
Judgment Date
07 July 2017
Procedural Posture
Development Appeal / Merits Review — Final Decision
Outcome
Application allowed in part; dual occupancy development approved but strata subdivision refused.
Legal Topics
['development Application' 'strata Subdivision' 'minimum Lot Size' 'statutory Interpretation']
['planning Law' 'environmental Law'] ['development Application' 'strata Subdivision' 'minimum Lot Size' 'statutory Interpretation']

Case Brief

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Procedural Posture

Development Appeal / Merits Review — Final Decision

Legal Issues

  1. 1 ['Whether clause 4.1 of the Willoughby Local Environmental Plan 2012 applies to strata subdivision applications' 'Proper construction and application of the minimum subdivision lot size to proposed strata subdivision under local planning instruments']

Ratio Decidendi

The exemption in cl 4.1(4) of the Willoughby Local Environmental Plan 2012 applies only to the subdivision of individual lots within an existing strata plan, not to the creation of new strata lots. Therefore, the minimum subdivision lot size requirement in cl 4.1 applies to proposals for new strata subdivisions, rendering the proposed subdivision unlawful as the strata lots would not meet the minimum lot size. The dual occupancy development itself may be approved, but not the subdivision.

Court Disposition

Application allowed in part; dual occupancy development approved but strata subdivision refused.

Orders

  • ['Appeal upheld so far as it approves the development of a dual occupancy on land at 15A Hart Street, Lane Cove in accordance with the plans and conditions in Annexure A.' 'Appeal dismissed as it relates to the subdivision of the land.' 'Exhibits returned.']