When is a subdivision not a subdivision? When it is a boundary adjustment.
A Boundary Adjustment or boundary realignment is a survey to change the boundaries between two or more lots of land without creating a new lot – for example there are two lots initially and the proposal is to change the boundaries between them so that there will be two lots at the end. Even though technically, in the eyes of most Councils and Land & Property Information NSW, a boundary adjustment is still a subdivision – just not creating new lots, the distinction between a subdivision and a boundary adjustment becomes especially important when dealing with lots that are smaller than the minimum size under Council’s LEP. This is all to do with legislation which can be confusing and complicated.
A summary of the levels of legislation in relation to boundary adjustment is as follows:
Level 1: Local rules – Development Control Plans (DCP’s) and Council Policies set out specific requirements for development under the Local Environmental Plan. It is possible to obtain a variation from the requirements in a DCP on a case by case basis.
Level 2: Local Environmental Plans – Council’s Local Environmental Plans set out the rules for development within the Local Government Area, including minimum lot size, subdivision controls and other requirements. Variation from the requirements of a LEP is much more difficult, and takes a submission to higher authorities than Council – ie Planning NSW.
Level 3: State Environmental Planning Policies (SEPP) – Rules set out by the State of NSW which can override rules in a DCP, Council policy or LEP.
So how does this help? Taking Dubbo City Council’s RU1 Primary Production zone as an example, the minimum lot size for subdivision is set at 800 hectares (about 2000 acres). There are few exceptions to this rule under Council’s LEP, effectively making subdivision in rural zones all but impossible, particularly when any lot has a dwelling upon it. Fortunately, Dubbo City Council has a clause relating to rural subdivision, however if a dwelling stands upon the land the minimum lot size must be achieved. SEPP (Exempt and Complying Development) 2008 sets out certain developments that are able to be declared Exempt (not requiring a development application to proceed), including minor Boundary Adjustments. Clause 2.75 of this SEPP says:
2.75 Specified development
The subdivision of land, for the purpose only of any one or more of the following, is development specified for this code:
(a) widening a public road,
(b) a realignment of boundaries:
(i) that is not carried out in relation to land on which a heritage item or draft heritage item is situated, and
(ii) that will not create additional lots or the opportunity for additional dwellings, and
(iii) that will not result in any lot that is smaller than the minimum size specified in an environmental planning instrument in relation to the land concerned (unless a lot or lots whose boundaries are being realigned is or are already smaller than the minimum size and that lot or those lots will only increase in size at the completion of the subdivision), and
(iv) that will not adversely affect the provision of existing services on a lot, and
(v) that will not result in any increased fire risk to existing buildings, and
(vi) if located in Zone RU1, RU2, RU3, RU4, RU6, E1, E2, E3 or E4—that will not result in more than a minor change in the area of any lot, and
(vii) if located in any other zone—that will not result in a change in the area of any lot by more than 10%,
(d) rectifying an encroachment on a lot,
(e) creating a public reserve,
(f) excising from a lot land that is, or is intended to be, used for public purposes, including drainage purposes, rural fire brigade or other emergency service purposes or public toilets.
In layman’s terms, this means that a minor realignment of boundaries that complies with part (b) above is firstly possible, and secondly exempt from requiring a development application. What this means for landholders in rural areas is that changes to boundaries are possible under this SEPP as exempt development.
The process to adjust boundaries under this SEPP starts with a visit to a registered surveyor – Doherty Smith & Associates for example. Your surveyor can prepare a brief submission for Council asking them to confirm that the proposal is exempt development under the SEPP. If Council agree, the survey for the boundary adjustment can proceed, saving the client money which would otherwise have had to be spent on development application preparation and Council fees – and up to 3 months in time. The rest of the plan signing and registration process is as it would be for normal subdivision.
Talk to Doherty Smith & Associates about the possibilities of a boundary adjustment of your land – you may be pleasantly surprised!