What is “the development site”

Today’s article comes from a question received about whether a development application can relate to part of a lot.

The question is:

Can a development application for everyday development (that is not designated development) relate to a specified part of a lot only? Does it have to relate to the whole lot?

The answer is that a development application made to a local council (that is not designated development) will relate to the whole lot. It is not possible to limit such a development application to a specified part of a lot only.

The High Court of Australia and Land and Environment Court have considered this issue. The Court in Rose Bay Afloat Pty Ltd v Woollahra Municipal Council  considered clauses from the Environmental Planning and Assessment Regulation 2000 and stated (with emphasis added):

Cl 49 employs the expression “land to which the development application relates” the meaning of which has been determined by the decision of the High Court in North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 as “the topographical entity” or “the particular parcel of land” “on which it is proposed that the development, the subject of the development application, is to be carried out”.

Cl 50 employs a slightly variant expression. It refers to “the address and formal particulars of title, of the land on which the development is to be carried out” (Item 1(c) of Pt1 of Schedule 1) and to “a site plan of the land” which must indicate inter alia “(a) the location, boundary dimensions, site area and north point of the land” (Items 2(1)(a) and (2) of Pt1 of Schedule 1)

It is clear that those expressions are intended to convey what is conventionally known in a town planning context as the “development site”, meaning the parcel of land upon which the development is proposed to be carried out: Ligon. In a case (such as the present) where the proposed development is the erection of a building the development site is generally a wider concept than the other conventional planning concept of the proposed building’s “footprint on, or site occupation of” the development site. In other words, generally in such a case there will be parts of the development site that are not occupied by the building to be erected thereon, and which serve as its curtilage or grounds or gardens etc (This is not to deny the phenomenon of a building occupying the whole of the development site eg an office building in Sydney’s Central Business District).

The simple, but important point, is that in its context, the expression “land to which a development application relates” embraces the conventional planning concept of “the development site”, and that concept is different from the conventional planning concept of “building footprint or site occupation” (although in the case of some development proposals, the two planning concepts can involve precisely the same area of land).

The concept of “the development site” can become very important during the development process. If you are unsure about how this could affect your development, it may be best to speak to a town planner or seek legal advice.

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.

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