Subdivision rules in NSW

Torrens subdivision creates new land lots, each with its own title, boundaries on the ground and, usually, its own street frontage. Clause 4.1 is written for this kind of subdivision. Strata subdivision divides a building into lots and common property under the Strata Schemes Development Act 2015, and community title divides land under the Community Land Development Act 2021.

Clause 4.1(4) says the minimum lot size clause does not apply to subdivision by registration of a strata plan or to any kind of subdivision under the Community Land Development Act 2021. So a dual occupancy on a block below the mapped minimum can often still be strata subdivided even though it could not be Torrens subdivided.

Councils that want to control community title lot sizes can adopt clause 4.1AA, which applies the Lot Size Map minimum to community title subdivision in listed zones while still excluding strata plans. Whether that clause is adopted, and in which zones, is again a council decision in the LEP.

Whatever the title type, a plan of subdivision cannot be registered until a subdivision certificate has been issued. The Environmental Planning and Assessment Act says so in the note to section 4.27(4), and it also confirms that a complying development certificate for subdivision can authorise the physical works such as roads and drainage.

Clause 4.6 is compulsory in every Standard Instrument LEP and is the only route to a lot below the mapped minimum by development application. Consent may be granted to development that contravenes a development standard, but only if the applicant demonstrates that compliance is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify the contravention. The council must record its assessment.

The clause has hard limits for subdivision in rural, large lot residential and environmental zones. In Zones RU1, RU2, RU3, RU4, RU6, R5, C2, C3 and C4, consent cannot be granted under clause 4.6 if the subdivision would create 2 or more lots below the minimum, or any lot less than 90% of the minimum. In those zones a small shortfall on one lot is the most the clause can carry.

Clause 4.6 also cannot be used to vary a development standard for complying development. If a proposal misses a Codes SEPP standard it simply is not complying development, and the choice is to redesign or to lodge a development application that meets the LEP instead.

Part 6 of the Codes SEPP is the Subdivision Code. Clause 6.1 makes the strata subdivision of a building that has development consent or a complying development certificate a specified development for 5 years from that approval, and it covers strata subdivision of a dual occupancy, manor house or terraces approved under the Low Rise Housing Diversity Code. Secondary dwellings, boarding houses and group homes are excluded.

The strata standards in clause 6.2 require lawful road frontage for each dwelling in a dual occupancy or terrace, no dwelling behind another on the same lot except on corner and parallel road lots, a minimum lot width of 6m at the building line, and a strata area of at least 180m² across the ground floors of all dwellings where no dwelling sits above another.

Torrens subdivision under the code is narrower. Clause 6.3 applies only to a dual occupancy or terraces built under a Low Rise Housing Diversity Code certificate where no dwelling sits above another. Clause 6.4 then requires one dwelling per lot, each lot at least 6m wide with lawful access and frontage to a public road, and for a dual occupancy a lot area of at least the LEP's dual occupancy subdivision minimum or 200m² where none is specified.

Chapter 6 of the Housing SEPP adds a state rule for one common case. Section 169 applies to Torrens subdivision for dual occupancies in Zones R1, R2 and R3 in a low and mid rise housing area, which is land within 800m walking distance of a mapped Town Centre or listed station. It applies only where the dual occupancy was consented, or the combined application made, on or after 28 February 2025.

Where it applies, consent may be granted despite another instrument, and the non-discretionary standards are one dwelling per lot, lots at least 6m wide at the front building line, lawful access and frontage to a public road, a minimum area of 225m² and no battle-axe lots. It does not apply to strata subdivision.

The effect is that inside these areas a council's higher Lot Size Map figure does not block a compliant dual occupancy subdivision. Outside them, the council's LEP and its clause 4.1 map remain the controlling instrument, and a secondary dwelling lot stays unsubdividable under section 51 of the Housing SEPP in every case.