What comes first, the land division or the detached dwelling?
Posted on November 06, 2014
According to the ERD Court decision in Paior & Anor v City of Marion & Ors (No.3), it is only when the relevant authority approves the land division and when the plan of division is lodged with the Lands Titles Office that approval for built form can be granted.
The decision has serious implications for any developments involving an approval for land division and the construction of a detached dwelling, semi-detached dwelling or row dwelling.
The key question considered by the Court in Paior was, given the reference to “exclusivity” in the definition of “detached dwelling” under Schedule 1 of the Development Regulations, could a relevant authority grant development approval for built form before approval for land division and the lodgement of a plan of division? The answer is now clearly no.
In Paior, “Development plan consent, land division consent and development approval were granted to that application on 1 June 2012. The application to the Registrar General to deposit a plan of community division appears to have been made in late January 2013, and the plan was deposited on 6 February 2013. Titles were issued on 1 March 2013”. Because of this sequence of events, which is common to most applications for built form involving a land division, the Court found that the question of whether a
party would ultimately proceed to complete the development (which includes land division) could not be guaranteed. If a party did not proceed with the development in these circumstances, the requirements under schedule 1 would not be met. Therefore, in Paior the Court held that the relevant authority could not approve an application for a dwelling without being satisfied that the land division has been approved and a plan of division had been lodged.
Schedule 1 of the Development Regulations
Schedule 1 of the Development Regulations defines a “detached dwelling” as “a detached building comprising 1 dwelling on a site that is held exclusively with that dwelling and has a frontage to a public road, or to a road proposed in a plan of land division that is the subject of a current development authorisation”.
Similarly, the definition of a semi-detached dwelling and row dwelling includes reference to the dwelling “occupying a site that is held exclusively with that dwelling”.
Historically, the Courts have found that the use of the word “exclusively” implies a right
of exclusive occupation or tenure.
In Paior, as with nearly all cases where a land division is part of an application for built form, an approval for the built form is based on the future intention of the applicants to proceed in full with the development.
It is this future intention which causes the conflict with the requirement for exclusivity under schedule 1.
Why are future intentions not enough?
The Court in Paior held that “frequently, a development approval is obtained, but not subsequently used. For that reason, authorities should not assume, when processing an application for a change of
land use, that a land decision for which development approval has been sought or even granted will necessarily be proceeded with to the point that a new allotment is created. It might not be.”
It must therefore follow that until such time as a land division application is approved and the plan of division lodged, the built form cannot be approved.
Where does this leave the developer?
The Court’s decision in Paior means that developers can no longer expect the relevant authority to approve an application for a detached dwelling, semi-detached dwelling or row dwelling which involves a land division until approval for the land division has been granted and the plan of division has been lodged with the LTO.
The potential financial implications and project delays are obvious and while the findings in the case are no doubt an unintended consequence of the wording of Schedule 1, until such time as legislative change is made, do not expect your development for built form to be approved before the approval of your land division and the lodgement of the plan of division at the LTO.