Barhom v Randwick City Council [2024] NSWLEC 1357

Barhom v Randwick City Council [2024] NSWLEC 1357

The size of each lot resulting from a strata subdivision must be calculated in accordance with the SSD Act as the area shown on the floor plan on the registered strata plan. The proposed lots of 298m2 and 376m2 do not meet the pre-amendment 400m2 minimum but are compliant with the now-applicable 275m2 standard. The delay in the amendment's operation is not a reason to refuse the application, and the relevant written request justifies the non-compliance. The subdivision will not create additional dwelling entitlements, nor does it offend zone objectives relating to housing affordability and community needs. Consent is therefore granted under cl 4.6.

Jurisdiction
Australia
Judgment Date
27 June 2024
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal upheld; development consent granted with conditions
Legal Topics
['development Application' 'strata Subdivision' 'minimum Lot Size' 'exceptions to Development Standards' 'interpretation of Planning Instruments' 'zone Objectives' 'housing Affordability']
['planning and Environment'] ['development Application' 'strata Subdivision' 'minimum Lot Size' 'exceptions to Development Standards' 'interpretation of Planning Instruments' 'zone Objectives' 'housing Affordability']

Case Brief

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Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 ["How is 'the size of each lot resulting from the subdivision' calculated under cl 4.1A(4)(a) of the RLEP?" 'Whether development consent can be granted for strata subdivision notwithstanding non-compliance with minimum strata lot size' 'Consistency of the proposed strata subdivision with zone objectives concerning housing affordability and housing needs']

Ratio Decidendi

The size of each lot resulting from a strata subdivision must be calculated in accordance with the SSD Act as the area shown on the floor plan on the registered strata plan. The proposed lots of 298m2 and 376m2 do not meet the pre-amendment 400m2 minimum but are compliant with the now-applicable 275m2 standard. The delay in the amendment's operation is not a reason to refuse the application, and the relevant written request justifies the non-compliance. The subdivision will not create additional dwelling entitlements, nor does it offend zone objectives relating to housing affordability and community needs. Consent is therefore granted under cl 4.6.

Court Disposition

Appeal upheld; development consent granted with conditions

Orders

  • ['The appeal is upheld.' 'The development application (DA/118/2023) for the strata subdivision of 12 Nurla Avenue, Little Bay is determined by the grant of development consent subject to the conditions in Annexure A.' 'Exhibits A-C and 4 are retained and exhibits D-F and 1-3 are returned.']