What has happened?
In Anderson v Snowy Monaro Regional Council [2025] NSWLEC 54, the Land and Environment Court declared void two development consents for large-lot residential subdivisions in Cooma. The Court held that the developer could not exceed the maximum number of lots by splitting the subdivision into a series of separate applications.
Context
The land was zoned R5 Large Lot Residential under the Cooma-Monaro Local Environmental Plan 2013, with a minimum lot size of 8 hectares. Clause 4.1B allowed smaller lots of 2 hectares, provided the total number of lots did not exceed the number that could be created under the standard minimum lot size.
The developer obtained consent for a Stage 1 subdivision, which included a large residue lot. It then lodged separate applications for Stages 2A and 2B over land that overlapped earlier stages, including the residue lots. Assessed one application at a time, each stage appeared to comply. Taken together, the stages produced 48 lots, compared with a maximum of 34 across the whole area.
The decision
Justice Duggan held that:
properly construed, cl 4.1B(3) limits the total number of lots produced by a subdivision to the number that would be produced applying the minimum lot size map, and the lots created cannot be further subdivided to exceed that number;
if a single application had been lodged for the whole subdivision, the Council would have had no power to approve it. Splitting it into sequential applications was a device that undermined the purpose of the clause; and
the error went to the Council's power to grant consent, so it was not appropriate to make orders to validate the consents. They were declared void and quashed.
How will this affect you?
Lot averaging and lot size clauses will be read according to their purpose. Staging a subdivision does not reset the lot count.
Councils assessing staged subdivisions should consider the cumulative lot yield across all stages.
Where a consent is beyond power, the Court is unlikely to save it with validation orders.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.