We recently had a situation where advice by Council planners was being questioned by a client located on the South Coast of New South Wales.

The development involved and related to, an existing approval to erection of a detached dual occupancy. The client was interested in obtaining development consent to a land subdivision, so that each dwelling could be contained on its own land parcel. We formed the opinion that the Council was correct in its assertion that subdivision of the land by Torrens title into two (2) lots was prohibited in the particular circumstances. The reasons for this related to the fact that approval to the land subdivision would create a situation where ‘indirectly’ the Council was, by consenting to a ‘land’ subdivision to separate the title, also ‘effectively’ granting development consent to an application that comprised prohibited development under the land use tables in the environmental planning instrument (EPI).

By way of explanation, the land was zoned R3, under the EPI. In the relevant zone ‘dwelling houses’ were a prohibited purpose. Following land subdivision, the development, whilst still comprising ‘residential accommodation’ (the relevant genus) would fall within the definition of a different species of that genus, being ‘dwelling house’ (see Dictionary definition of dwelling house). The land subdivision of the approved development has the effect of converting a detached dual occupancy development to a development comprising of two (2) dwelling houses each, on its own lot of land.

Now, if these dwellings were in the form of ‘semi-detached dwellings’ ie the development had approval to an ‘dual occupancy (attached)’ per the EPI Dictionary and one wished to create a Torrens title subdivision, there would be no legal issue. This is because semi-detached dwellings (another species of the genus residential accommodation) whilst ‘innominate’, are permissible in the R3 zone. Put another way, semi-detached dwellings are not specified in items 2 or 4, therefore, this species of residential accommodation, is permissible development notwithstanding land subdivision.

If one strata subdivides a property that already has consent as a dual occupancy (detached), then the development remains a dual occupancy (detached) despite consent for further development by way of strata subdivision under the EPI. The reason for this is contained in the definition of dual occupancy (detached) from the dictionary in the EPI. When the second application is lodged (that is the strata application), one starts with a dual occupancy (detached) and when consent is granted one still ‘ends up’ with a dual occupancy (detached) because it continues to fall within the relevant definition, ie two detached dwellings on the one lot of land (cf definition of dual occupancy detached). As such the development remains a dual occupancy (detached), but in circumstances where strata subdivision has also been granted consent as a separate/different development, pursuant to Clause 2.6 of the EPI (subdivision, including strata subdivision, being permissible with development consent). If on the other hand, one wished to gain development consent to create two (2) lots in a Torrens title subdivision, where there is already development consent to a dual occupancy (detached), then the land subdivision in the second application would convert the development from falling into the definition of a dual occupancy (detached) into a development comprising of two (2) dwelling houses with each being on their own lot of land. As such the development is no longer a dual occupancy (detached) because one doesn’t have ‘….2 detached dwellings on the one lot of land [emphasis added]….’. Whilst this of itself is not, in a statutory context, a determinative issue, that which seals the deal in a fatal way, is that the land subdivision converts a permissible purpose in the R3 zone to a prohibited purpose (refer dwelling house purpose in landuse table). The Council is unable to approve this, as it would be ultra vires or beyond the Councils power to so do. Further a Court may declare such a purported consent, invalid. Lastly and I’m aware your eyes may be starting to glaze over; the reason for being able to undertake a Torrens title subdivision as regards an approved dual occupancy (attached), is that whilst the development is, at the time of approval/consent to the land subdivision, converted to another species in the genus of ‘residential accommodation’, that which the development is converted to, remains permissible pursuant to the landuse table. Further, such conversion is not, of itself, prohibited by any clause in the EPI.