Minimum Lot Size

13 January 2021

Good evening everyone, and happy new year. This one has started better for most of us with no significant fires - lets just hope the intensity of these storms settles a little and we don’t have more lightening strikes like our neighbours in QPRC.

So, straight back into it with something we haven’t spoken about much - minimum lot sizes (MLS). This is important because it’s the biggest, and widest spread proposed change.

As many of you are already aware, part of the Councils proposal is the increasing of minimum lot sizes. Some people see this as a non-issue because they don’t have plans to subdivide however there are potential flow on effects which we’ll detail below.

The main issue is subdivision and settlements. For some of our smaller communities this proposal reduces potential settlement options. Take Jerangle as an example.

Jerangle Public School has recently announced its (temporary) closer due to decreasing enrolments. Jerangle also doesn’t register on Councils radar as a ‘township’ or hamlet in the Settlements Strategy (much like other regional areas). The increase of the MLS from 80 to 250 hectares means there are, at our estimate, less than 10 properties which will retain the right to build within a 6km radius of the school. Properties under 250 hectares, unless currently developed, will lose this ‘entitlement’. Only properties over 500 hectares will be able to be subdivided (our estimate is less than 5 properties).

This example is transferable to all properties where the MLS is proposed to be increased - in some cases this is an increase of over 600%.

What other regional schools will close? What other services will be lost? as a result of reduced settlement with a similar makeup as Jerangle.

Council do not appear to be including a ‘sunset’ clause where existing lots could keep their entitlement to build for a set period of time. CORRECTION: there is one line which mentions a ‘sunset clause’ for existing holding for the former Snowy Rivers Shire. Council consider 3 years enough time for owners to submit a DA. After this three years is up, these existing holding would lose the dwelling entitlement.

There is an option to subdivide off a portion of land under the MLS if a dwelling is not included on a lot smaller than the MLS, and the subsequent lots would not be able to be developed for any habitable purpose.

Council are also proposing to remove the lot averaging provisions from the former Snowy Rivers and Cooma-Monaro Shire areas from land zoned not proposed to be zoned E4 or R5. This means any land with proposed zoning of RU1, RU2, RU4, RU5 or E3 will not have access to the lot averaging provisions.

Lot averaging is predominately used by multi-generational property owners to provide a legal lot to a family member; namely children or parents as a means of succession planning.

Most rural people understand the difference between a lot and a holding, however for those not aware - a lot is a single parcel of land (for example: lot 12 of DP 123456), a holding is multiple lots held by the same owner/lessee (for example lots 12, 13, 14, 15 of DP 123456). Council have referenced a study, by Elton Consulting, which details the number of lots and holdings in the LGA over 20 hectares. This is table 33 of the Snowy Monaro Employment Lands and Rural Lands Analysis study.

This study makes note that there are 8% of lots over 200 hectares but 75% of holdings over 200 hectares. It is Councils determination that because there are a significant number of holdings above 200 hectares that this justifies the need to increase the MLS to 250 hectares. When, in fact, there are less than 1076 lots (the 8% mentioned earlier) out of 32,586 lots in the whole LGA which are currently greater than the proposed MLS. Note: the 8% comes from the number of lots over 20 hectares being 14,316. When you use the total number of lots in the LGA, lots over 200 hectares equates to just 3%. The number of lots less than 20 hectares is 56% of the whole LGA.

As far as we are aware there has been no analysis of what the increase in MLS actually means for settlement or subdivision potential, just as it is not clear that complete analysis of what the current MLS means for settlement or subdivision. It certainly hasn’t been completed as part of the aforementioned Study.

Many of the LGA’s which we’ve looked at have taken a robust approach to what the MLS should be. Many have retained the MLS of what size the lots currently are. This reduces future subdivision but allows development on current lots.

Other LGA’s also haven’t tied a zone to a MLS, which is what we are faced with. Eurobodalla have multiple lot sizes for their RU1 zoned land, ranging from 2 hectares through to 1000 hectares (a few large dairy farms).

Other LGA’s have taken an equitable approach, understanding that different areas in their LGA have different requirements and suit different industries. They haven’t used a ‘one size fits all’ approach.

Other LGA’s have included provisions for emerging agriculture, small scale farming, and niche markets. They have acknowledged that agriculture doesn’t just mean running 400 head of cattle or sheep. They have acknowledged that farmers are diversifying into other equally, sometimes more, profitable markets.

It’s time for Council to realise and accept that commercial agriculture is multifaceted. It isn’t just the broad acre running of stock and crops it once was. It’s the garlic growers, or the small plant nurseries, or the regenerative and cut native flower growers, or the soap and candle makers who grow their own additives, or the farmers market gardeners. All commercial in their own right, all who provide employment, all who provide to the economy.

It’s these industries, and many others, who face not being able to enter the Snowy Monaro region, who will be driven else where - where they don’t have to purchase (and maintain) 80 or 250 or 400 hectares of land or go to Jindabyne to access 40 hectares of RU4 zoned land.

Wording of the proposed clause can be found in the comments or page 151-152 of the Strategy.

The wording Council are proposing for the LEP:

Erection of dual occupancies and dwelling houses on land in certain rural and environment protection zones

(1) The objectives of this clause are as follows—

(a) to minimise unplanned rural residential development,

(b) to enable the replacement of lawfully erected dual occupancies and dwelling houses in rural and environment protection zones.

(2) This clause applies to land in the following zones—

(a) Zone RU1 Primary Production,

(b) Zone RU2 Rural Landscape

(c) Zone RU4 Primary Production Small Lots

(d) Zone E3 Environmental Management

152

(3) Development consent must not be granted for the erection of a dual occupancy or dwelling house on land to which this clause applies unless the land—

(a) is a lot that has an area that is not less than the minimum lot size shown on the Lot Size Map in relation to that land, or

(b) is a lot containing land in more than one zone with the largest portion of zoned land in the lot having an area that is not less than the minimum lot size shown on the Lot Size Map in relation to that land, or

(c) is a lot created by a subdivision under an environmental planning instrument before this Plan commenced and on which the erection of a dual occupancy or dwelling house was permissible immediately before that commencement, or

(d) is a lot resulting from a subdivision for which development consent (or equivalent) was granted before this Plan commenced and on which the erection of a dual occupancy or dwelling house would have been permissible if the plan of subdivision had been registered before that commencement, or

(e) is a 1985 holding

(f) would have been a lot or a holding referred to in paragraph (a), (b), (c), (d) or (e) had it not been affected by—

(i) a minor realignment of its boundaries that did not create an additional lot, or

(ii) a subdivision creating or widening a public road or public reserve or for another public purpose, or

(iii) a consolidation with an adjoining public road or public reserve or for another public purpose.

Note—

A dwelling cannot be erected on a lot created by clause 4.2.

(4) Development consent must not be granted under subclause (3) unless—

(a) no dual occupancy has been erected on the land, and

(b) if a development application has been made for development for the purpose of a dual occupancy on the land—the application has been refused or it was withdrawn before it was determined, and

(c) if development consent has been granted in relation to such an application—the consent has been surrendered or it has lapsed.

(5) Development consent may be granted for the erection of a dual occupancy or dwelling house on land to which this clause applies if there is a lawfully erected dual occupancy or dwelling house on the land and the dual occupancy or dwelling house to be erected is intended only to replace the existing dual occupancy or dwelling house.

(6) Land ceases to be a 1985 holding for the purpose of subclause (3) (e) if an application for development consent referred to in that subclause is not made in relation to that land within 3 years from the commencement of this Plan.

(7) In this clause—

An existing holding means land to which Snowy River Local Environmental Plan 2013 applied immediately before the commencement of this Plan that—

(a) was in RU1 Primary Production zone immediately before the commencement of this Plan, and

(b) was a holding on 26 September 1985, and

(c) is a holding at the time the application for development consent referred to in subclause (3) is lodged,

whether or not there has been a change in the ownership of the holding since 26 September 1985, and includes any other land adjoining that land acquired by the owner since 26 September 1985.

Existing Holdings for the former Cooma-Monaro Shire:

"The minimum lot size for all non-urban areas of the Cooma-Monaro LEP is 80 hectares. The Cooma-Monaro LEP also contained an ‘existing holding’ provision for land that was a holding as at 13 October 1995 for land within the former Yarrowlumla LEP and 3 March 1997 for land within the former Cooma-Monaro LEP. These provisions expired on 31 December 2017." Page 142, DRLUS

Existing Holdings for the former Bombala Shire:

"The minimum lot size for all of the non-urban areas under the Bombala LEP is 40 hectares. It is understood that during the development of the Bombala LEP 2012, it was considered that there was little subdivision pressure; therefore, the minimum lot size could remain 40ha without significant fragmentation occurring.

The Bombala LEP referred to ‘existing holdings’ as at 25 December 1975 and provided a five-year timeframe from the making of the LEP for landowners to obtain a development consent on the holding. The timeframe to make development application for a dwelling house expired on 29 June 2017." Page 142, DRLUS

Existing Holdings for the former Snowy Rivers Shire:

"Minimum lot sizes contained within the Snowy River LEP were derived from a Rural Density Study that was based on lot densities and performance-based criteria to manage development in rural areas. MLS was determined based on the size of the average holding for each locality.

The Snowy River LEP also incorporated an ‘existing holding’ provision referring to a holding as at 26 September 1985; the dwelling entitlement clause does not include a sunset subclause. For equity and to work towards consistency across the whole of the LGA, it is proposed to introduce a sunset clause that would apply to the existing holdings under the former Snowy River LEP. It is considered that three years is ample time for landholders to lodge a development application over existing holdings, after which it would not be permissible for consent for a dwelling house to be sought." Page 142, DRLUS

The Department of Primary Industry's Policy on Maintaining Land for Agricultural Industries states:

The minimum area for a dwelling entitlement and other provisions in Environmental Planning Instruments to regulate subdivisions should take into account:

• the agricultural productivity and suitability of the land in question;

• the nature and requirements of agricultural industries in the area being considered;

• the risk of creating land use conflict;

• the current distribution of property sizes and the agricultural industry they support;

• the trends in the size of properties engaged in agriculture; and

• cumulative impacts eg gradual subdivision of agriculture becomes rural residential zone.

The DPI acknowledges that suitable assessment of the land, current lot size, and the different industries that are currently supported needs to be undertaken.