Strata subdivision under SEPP

Just wondering if strata subdivision is permissible by a PCA for dual occupancies where a CDC is issued under 3B of the SEPP even where council do not generally allow strata subdivisions (Blacktown council) for such developments.

Nothing in the section seems to say it must be permissible in the LEP

6.1 - (2) The strata subdivision of a dual occupancy, manor house or multi dwelling housing (terraces), for which a complying development certificate has been issued under the Low Rise Medium Density Housing Code, is development specified for this code.

6.2 - subdivision must not contravene any condition of any complying development certificate applying to the development, each dwelling must have lawful frontage to a public road, no dwelling must be located behind any other dwelling on the same lot, each resulting lot must have a minimum width (measured at the building line) of 6m and the strata area being over 180m2

From what i could read if a CDC was issued for dual occupancy then a strata subdivision would be permissible where conditions of 6.2 were regardless of anything on the LEP.

Blacktown council was not listed as a deferred council and I will copy and paste the full code in the next post

 

Division 1 Strata subdivision
6.1 Specified complying development
(1) The strata subdivision of a building for which development consent or a complying development certificate was granted or issued is, for 5 years from the date the consent or certificate was granted or issued, development specified for this code.
(2) The strata subdivision of a dual occupancy, manor house or multi dwelling housing (terraces), for which a complying development certificate has been issued under the Low Rise Medium Density Housing Code, is development specified for this code.
(3) If a single complying development certificate application proposes both the strata subdivision of land and the erection of a dual occupancy, manor house or multi dwelling housing (terraces) on the land, the subdivision of that land is development specified for this code.

(4) This clause does not include the strata subdivision of the following:
(a) a secondary dwelling,
(b) a boarding house,
(c) a group home,
(d) a dual occupancy (except as provided by subclause (2) or (3)).

6.2 Development standards
The standards specified for that development are as follows:
(a) that the subdivision must not contravene any condition of any development consent or complying development certificate applying to the development,

(b) in the case of a dual occupancy or multi dwelling housing (terraces):
(i) each dwelling must have lawful frontage to a public road (other than a lane), and
(ii) no dwelling must be located behind any other dwelling on the same lot (except in the case of a corner lot or a parallel road lot), and
(iii) each resulting lot must have a minimum width (measured at the building line) of 6m,

(c) in the case of a dual occupancy where no part of a dwelling is located above any part of another dwelling or multi dwelling housing (terraces), the strata area (being the area of the ground floor of all dwellings) is not less than 180m2

 

Hi Gach,

Hopefully this is helpful.

In the Low Rise Medium Density Housing Code, it does not say subdivision must be permissible in the LEP, you are correct.

In the Low Rise Medium Density Design Guide: https://www.planning.nsw.gov.au/~/m...ide-for-complying-development-2018-07-24.ashx

"Certain LEPs may not permit subdivision of a dual occupancy. If this is the case, the subdivision is not permitted under the Codes SEPP." - Page 33

I've read the code back to front and I'm not happy with this inconsistency and I think it goes against the practicality of the code, after all many councils prohibit subdivision of Dual Occupancies effectively making the code useless. If it can't be subdivided, then its not commercially feasible to construct even when the council allows construction.

Let me know what you think, perhaps we can keep in touch and do something about this.

Regards,

 

My only arguement a guide is just a guide and the code is the code

Also the code mentions to adhere to the guide in 3B.

This is not mentioned in Section 6.

Also in 3B it mentions

3B.19 Building design
(1) The design of a dual occupancy must be consistent with the relevant design criteria in the Medium Density Design Guide.(2) However, the requirements of this Part prevail to the extent that the Guide is inconsistent with this Part.

So even the code says for 3B.19 code>guide where there are inconsistency

 

This is an interesting topic I am getting different feedback from several councils as to their interpretation of what is permitted or not.

I think the trouble is that not only are we needing to read back and forth between the LEPs and the Low Rise Medium Density Housing Code SEPP we also need to dig into the Exempt and Complying Development Codes 2008 SEPP as outlined below from the Low Rise Medium Density Housing Code SEPP.

Relationship to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

The Codes SEPP contains the majority of exempt and complying development types and their development standards. The Low Rise Medium Density Housing Code in Part 3B of the Codes SEPP contains the development standards for manor houses, multi dwelling housing (terraces) and dual occupancies.

Part 1 of the Codes SEPP contains the general requirements and specifies land on which complying development cannot be carried out.

Part 6 of the Codes SEPP contains development standards for subdivision.

 

@Anthony416 - i think the point being missed is that council will not have a say. Subdivision Certificates can be issued without a DA (will require a CDC which a private certifier can issue). I am in touch with one who mentions all is ok (but im not really taking his word until he provides one)

All i can say is I do have a project lined up to see how things go, so will let you know hopefully by the end of the year

 

Hey Gach - is your question can a certifier issue subdivision approval under CDC for strata subdivision?

If so then yes they can but the certifier has to have the right level of authority.

they can do strata subdivision approval but not Torrens title subdivision.

 

Just a word caution even though I agree with your view on the code but I've spoken to some Councils and they know full well that if they prohibit subdivision then a Private Certifier shouldn't be able to authorise a subdivision, they understand that the Code cannot override it.

Please let me know how your discussion with your Certifier goes because in all honestly I haven't met any Certifier who has read the Code and the Guide as thoroughly as the people on this Forum + Council Planners which is not ideal.

Hi Shahin, what do you mean by this if you don't mind me asking? According to the Low Rise Medium Density Code and Guide, concurrent subdivision via both Strata and Torrens is possible provided the requirements are met.

 

Im not sure about the new medium density code.

I am referring to the existing rule which allows certifiers (certain ones - not all) to approve strata subdivision of townhouse developments. However they cannot approve Torrens title subdivisions.

 

Shahin - That was my question and I got an answer from my certifier saying it should be ok and even mentioned there are many townhouses that have been strata subdivided not meeting council requirements under the SEPP. He did mention that dual occupancies were not allowed previously but now under the new code are also allowed.

Rowan - He mentioned under the new code Torrens should be allowable with just a CDC. Have spoken to another certifier (but he doesnt deal with smaller subdivisions) who mentioned currently he believes certifiers cannot issue torrens subdivision certificate without DA except in Lightgow Council (but it also appeared he was not too familiar of the new code)

End of the day I guess I cannot confirm until an approval has been given.

 

Okay best of luck with it. Keep the updates coming!

I still think the certifier is interpreting it incorrectly regarding the dual occupancies but maybe the best question to ask is if the certifier approves, and the council doesn't agree. Can the council do anything about it?

 

Which part did you mean incorrect interpretation?

I dont know what councils can do, but have used the certifier before (had a DA for strata) but the council didnt get involved once DA was approved. All the approvals were done by private certifier and council was notified by what i guess was land titles registry once it was registered.

 

The part where your Certifier believes it's okay to subdivide a dual occupancy using the code even if the Council prohibits dual occupancy subdivision in their LEP. I only say this because I've spoken to some councils and they are of the understanding you can't do that.

 

this was for strata only if it meets the requirements in the code

Torrens may only work where to lot size meets 60% of the min lot size for each lot (if there is a min lot size - if not then no)

 

You might want to talk to private certifier about what they are willing to issue certificates for.

No idea where you want to develop but there are only a handful in Sydney that can issue certificates and some of them dont entertain smaller subdivisions

 

Gach, the more I look into this, the more I see it your way and the subdivision prohibition in the guide looks more like a mistake as it is just never mentioned again in the Code or in the SEPP.

 

Please note Clause 1.18 of the CODES SEPP states to be Complying Development under this policy, the development must be permissible with consent under an EPI applying to the land.

This is generally the LEP.

The problem for a number of Councils is that they have guidelines (which are generally enforceable) within their DCP's - which are not EPIs. My understanding is that the exemption period for a number of Councils will allow them the time to consider applying some of the guidelines for dual occupancies / subdivision that may have previously been within the DCP, to the LEP, so they have more legal bearing and Clause 1.18 is more easily considered.

For most Councils that are exempt, i would expect to see their LEPs amended prior to July 2019 to more clearly and precisely state what type of dwellings and subdivisions are permitted for different zones.

As we now have a Standard Instrument LEP across all NSW Councils, part 2 and part 4 of the relevant LEP should provide you with details of what occupancies / types of development and subdivision are permissible to the different land use zones, and subsequently this should tell you what parts of the Low Rise Medium Density Housing Code (LRMDHC) may be applicable to you and your development.

Ant