Can a LEP 2014 Clause 4.6 variation be used to vary the minimum lot size provisions?

    Clause 4.2A of LEP 2014 provides the circumstances under which Council can grant consent for a dwelling house. Council has received legal advice that clause 4.2A(4) is a prohibition and not a development standard to which clause 4.6 can apply.  It is considered that clause 4.2A(4) is a “pre condition” to the operation of clause 4.2A(3).  A clause 4.6 variation is not (legally) open under the clause.

    Upon reading the whole of clause 4.2A in context, it is considered that the clause is directed to ensuring dwelling house entitlements are not created where illegal dwellings have been constructed.  Subclauses (4) and (5) suggest this when read together.

    In any event, it is difficult to envisage how a clause 4.6 submission in these circumstances would be able to satisfy the objectives of the clause.

    It is considered that Council’s approach of requiring a planning proposal is appropriate to address the issue of unauthorised dwellings on lots that have never had a dwelling entitlement and lots that are significantly undersized.

    What if an Order served by Council on an unauthorised dwelling has the potential to make residents homeless?

    Council can issue a range of notices and orders in relation to unauthorised dwellings under the Environmental Planning and Assessment Act, Local Government Act and Protection of the Environmental Operations Act. 

    A Council must determine whether in the individual circumstances of each case it is appropriate to give an Order. Some of the things to be considered are:

    • The seriousness and continuing nature of the breach;
    • The impacts of the breach on adjoining owners/occupiers, the general public or the environment;
    • Any hardship to the recipient, including expense and inconvenience – an Order must not cause injustice disproportionate to the ends secured by the order;
    • Whether there has been excessive delay by the Council in responding to the breach;
    • The time for compliance with an Order, balancing the public interest in bringing about compliance and any hardship for the recipient;
    • Whether an order will, or is likely to, make the recipient or other persons homeless – if so, the Council must consider availability of satisfactory alternative accommodation in the locality;
    • Whether the Order will affect the heritage significance of the item (if an Order is for a heritage item on the State Heritage Register or under order by s.136 of the Heritage Act 1977); 
    • Whether more than one Order is to be given to the same recipient, and whether they should be given in the same instrument.

    In considering the availability of satisfactory alternative accommodation in the locality, the most recent case law on the topic (Fairfield City Council v Thuy Thanh Truc Nguyen [2018] NSWLEC 113 ( Robson J)) found that a letter prepared by the Council and provided to the affected residents providing details of web addresses at which real estate agents can be contacted, as well as appending a list of all the real estate agents currently operating in and around the local government area was sufficient to address concerns in relation to the possibility of residents being made homeless and afforded them the opportunity to seek alternate accommodation. The letter also provided a web address and phone number for the local accommodation and support services operated by the NSW Department of Family and Community Services.

    What are the legal consequences of not responding to Council's 'show cause' letter?

    Should no response be received to the show cause letter, staff will complete investigations of the potential unauthorised dwellings on the land, as per the Enforcement Policy 2016.

    What if my building is old and I am unable to find any approval history?

    Refer to Council's Unauthorised Dwelling Policy fact sheet for further information.