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A recent article in the SMH online highlights the rise of dual occupancy approvals in Greater Sydney. Many of these approvals are by complying development certificate under Part 3B of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (“the Codes SEPP”). Subdivision of dual occupancy is also permitted as complying development under Part 6 of the Codes SEPP.

Anyone with experience of the Codes SEPP will know that it can be a minefield to interpret. The consequence of a wrong interpretation for landowners and certifiers are potentially significant. A complying development certificate that is wrongly issued can be challenged by a third party and declared invalid by the Land and Environment Court. A complying development certificate that is negligently issued can be the subject of professional negligence proceedings against the certifier or the author of the assessment report on which the certifier has relied.

Judicial commentary on the Codes SEPP, particularly of Parts 3B and 6, is scarce. I recently had reason to examine clause 1.18 (1) (b) of the Codes SEPP. This clause states that to qualify as complying development under the Codes SEPP, the proposed development must “be permissible, with consent, under an environmental planning instrument applying to the land on which the development is carried out”. On the surface this seems to be a simple question, but more than a cursory assessment is required.

Is dual occupancy permissible with consent simply because it is listed as a purpose permitted with consent in a zoning table of a local environmental plan? Or does a particular dual occupancy need to satisfy all applicable development standards and preconditions to the power to grant consent in order to be permissible with consent? The Land and Environment Court’s decision in Lloyd v Wollongong City Council [2015] NSWLEC 146 suggests the answer to the second question is yes.

In Lloyd the Court considered the meaning of permissible in the phrase “a lot created before this Plan commenced and on which the erection of a dwelling house was permissible immediately before that commencement” in clause 4.2 (A) (b) of Wollongong Local Environmental Plan 2009. It was common ground in the case that a dwelling house was listed as a purpose permitted with consent according to the zoning table in the former planning instrument applying to the land but did not comply with a minimum lot size standard.

The Court held at [50] that a development standard that requires a lot to be not less than 40 ha and which is not relaxed by a dispensation granted under State Environmental Planning Policy No. 1 (now clause 4.6 of the Standard Instrument), prohibits the carrying out of the development. Some local environmental plans place similar constraints on the permissibility of dual occupancy.

A certifier issuing a complying development certificate or planner preparing an assessment report under the Codes SEPP ought to consider whether a development that is subject to a minimum lot size, or some other precondition to the granting of consent contained in a local environmental plan is permissible with development consent for the purposes of clause 1.18 (1) (b) of the Codes SEPP.

The assessment required to satisfy the Codes SEPP is unlike the form of assessment required to accompany a development application in the form of a statement of environmental effects. Permissibility of development in the context of a development application is quite different to permissibility of complying development. The meaning of provisions contained in the Codes SEPP requires careful legal analysis and consideration.


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