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Contents (2011 - 702)
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Cessnock Local Environmental Plan 2011
Current version for 7 February 2020 to date (accessed 10 April 2020 at 06:25)
Part 4
Part 4 Principal development standards
4.1   Minimum subdivision lot size
(1)  The objectives of this clause are as follows—
(a)  to ensure minimum lot sizes are appropriate for the zones to which they apply and for the land uses permitted in those zones,
(b)  to ensure minimum lot sizes reflect the outcomes of any adopted settlement strategy for Cessnock.
(2)  This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.
(3)  The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.
(4)  This clause does not apply in relation to the subdivision of any land—
(a)  by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or
(b)  by any kind of subdivision under the Community Land Development Act 1989.
(4A)  Despite subclause (3), a lot resulting from the subdivision of the following land must not be less than the minimum size specified below in relation to the land—
(a)    (Repealed)
(b)  if the lot is on land identified as “T2” on the Lot Size Map and the subdivision will result in the creation of lots that are not able to be serviced by a reticulated water and reticulated sewerage system—2,000 square metres,
(c)  if the lot is on land identified as “T3” on the Lot Size Map and the subdivision will result in the creation of lots that are not able to be serviced by a reticulated water and reticulated sewerage system—2 hectares.
(4B)  For the purposes of calculating the size of a lot for the purposes of this clause, if a lot is a battle-axe lot or other lot with an access handle, the lot size is to be calculated by excluding the area of the access handle.
4.1AA   Minimum subdivision lot size for community title schemes
(1)  The objectives of this clause are as follows—
(a)  to ensure that land to which this clause applies is not fragmented by subdivisions that would create additional dwelling entitlements.
(2)  This clause applies to a subdivision (being a subdivision that requires development consent) under the Community Land Development Act 1989 of land in any of the following zones—
(a)  Zone RU2 Rural Landscape,
(b)  Zone RU4 Primary Production Small Lots,
(ba)  Zone SP3 Tourist,
(c)  Zone E1 National Parks and Nature Reserves,
(d)  Zone E2 Environmental Conservation,
but does not apply to a subdivision by the registration of a strata plan.
(3)  The size of any lot resulting from a subdivision of land to which this clause applies (other than any lot comprising association property within the meaning of the Community Land Development Act 1989) is not to be less than the minimum size shown on the Lot Size Map in relation to that land.
(4)  This clause applies despite clause 4.1.
4.1A   Subdivision in the Hunter Economic Zone
(1)  This clause applies to land identified as “Hunter Economic Zone” on the Hunter Economic Zone Map and within Zone IN1 General Industrial or Zone SP2 Infrastructure.
(2)  Development consent must not be granted for the subdivision of land to which this clause applies unless the consent authority is satisfied that—
(a)  the use of the land after the subdivision will be the same use permitted under an existing development consent for the land, or
(b)  a development application has been lodged to carry out development on the land for the purpose for which it is to be subdivided.
4.1B   Minimum lot sizes for certain split zones
(1)  The objectives of this clause are—
(a)  to provide for the subdivision of lots that are within more than one zone and cannot be subdivided under clause 4.1, and
(b)  to ensure that the subdivision occurs in a manner that promotes suitable land uses and development.
(2)  This clause applies to each lot (an original lot) that only contains—
(a)  land in a residential, business or industrial zone or in Zone RU5 Village, and
(b)  land in Zone RU2 Rural Landscape, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation or Zone E3 Environmental Management.
(3)  Despite clause 4.1, development consent may be granted to subdivide an original lot to create other lots (the resulting lots) if—
(a)  one of the resulting lots will contain—
(i)  land in a residential, business or industrial zone or in Zone RU5 Village that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land, and
(ii)  all of the land in Zone RU2 Rural Landscape, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation or Zone E3 Environmental Management that was in the original lot, and
(b)  all other resulting lots will contain land that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land.
4.1C   Exceptions to minimum lot sizes for certain residential development
(1)  The objective of this clause is to encourage housing diversity without adversely impacting on residential amenity.
(2)  This clause applies to land in the following zones—
(a)  Zone R2 Low Density Residential,
(b)  Zone R3 Medium Density Residential.
(3)  Despite clause 4.1, development consent may be granted to a single development application for development on land to which this clause applies that is both of the following—
(a)  the erection of a dual occupancy on the land,
(b)  the subdivision of that land into 2 lots if each lot resulting from the subdivision contains one dwelling and the size of each lot is not less than 300 square metres (excluding the area of any access handle).
(4)  Despite clause 4.1, development consent may be granted for a subdivision that would create separate titles for each of the 2 dwellings comprising a dual occupancy on land to which this clause applies if—
(a)  the size of each lot resulting from the subdivision is not less than 300 square metres (excluding the area of any access handle), and
(b)  each lot resulting from the subdivision will contain one dwelling, and
(c)  the subdivision is not inconsistent with the development consent for the dual occupancy.
4.1D   Minimum lot size for dual occupancies
(1)  The objective of this clause is to achieve planned residential density.
(2)  Development consent may be granted to development on a lot in Zone R2 Low Density Residential for the purpose of a dual occupancy if the size of the lot is not less than 600 square metres (excluding the area of any access handle).
4.2   Rural subdivision
(1)  The objective of this clause is to provide flexibility in the application of standards for subdivision in rural zones to allow land owners a greater chance to achieve the objectives for development in the relevant zone.
(2)  This clause applies to the following rural zones—
(a)  Zone RU1 Primary Production,
(b)  Zone RU2 Rural Landscape,
(baa)  Zone RU3 Forestry,
(c)  Zone RU4 Primary Production Small Lots,
(d)  Zone RU6 Transition.
Note.
 When this Plan was made, it did not include Zone RU1 Primary Production or Zone RU6 Transition.
(3)  Land in a zone to which this clause applies may, with development consent, be subdivided for the purpose of primary production to create a lot of a size that is less than the minimum size shown on the Lot Size Map in relation to that land.
(4)  However, such a lot cannot be created if an existing dwelling would, as the result of the subdivision, be situated on the lot.
(5)  A dwelling cannot be erected on such a lot.
Note.
 A dwelling includes a rural worker’s dwelling (see definition of that term in the Dictionary).
4.2A   Erection of dwelling houses on land in certain residential, rural and environmental 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 dwelling houses in certain residential, rural and environmental protection zones.
(2)  This clause applies to land in the following zones—
(a)  Zone RU2 Rural Landscape,
(b)  Zone RU4 Primary Production Small Lots,
(c)  Zone R5 Large Lot Residential,
(d)  Zone E2 Environmental Conservation,
(e)  Zone E3 Environmental Management.
(3)  Development consent must not be granted for the erection of a dwelling house on land in a zone to which this clause applies, and on which no dwelling house has been erected, unless the land is—
(a)  a lot that is at least the minimum lot size specified for that land by the Lot Size Map, or
(b)  a lot created before this Plan commenced and on which the erection of a dwelling house was permissible immediately before that commencement, or
(c)  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 dwelling house would have been permissible if the plan of subdivision had been registered before that commencement, or
(d)  an existing holding, or
(e)  identified as having a dwelling entitlement on the Dwelling Entitlement Map, or
(f)  a lot created under clause 4.1.
Note.
 A dwelling cannot be erected on a lot created under clause 9 of State Environmental Planning Policy (Rural Lands) 2008 or clause 4.2.
(4)  Despite subclause (3), development consent may be granted for the erection of a dwelling house on land to which this clause applies if—
(a)  there is a lawfully erected dwelling house on the land and the dwelling house to be erected is intended only to replace the existing dwelling house, or
(b)  the land would have been a lot or a holding referred to in subclause (3) 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.
(5)  In this clause—
existing holding means land that was a holding on 31 December 1984, whether or not there has been a change in the ownership of the holding since 31 December 1984.
holding means all single lots and any adjoining land, even if separated by a road or railway, held by the same person or persons.
Note.
 The owner in whose ownership all the land is at the time the application is lodged need not be the same person as the owner in whose ownership all the land was on the stated date.
4.2B   Minimum subdivision lot size for strata plan schemes in certain rural or environmental protection zones
(1)  The objective of this clause is to ensure that land to which this clause applies is not fragmented by subdivisions that would create additional dwelling entitlements.
(2)  This clause applies to land in the following zones that is used, or proposed to be used, for residential accommodation or tourist and visitor accommodation—
(a)  Zone RU2 Rural Landscape,
(b)  Zone RU4 Primary Production Small Lots,
(ba)  Zone SP3 Tourist,
(c)  Zone E1 National Parks and Nature Reserves,
(d)  Zone E2 Environmental Conservation.
(3)  The size of any lot resulting from a subdivision of land to which clause applies for a strata plan scheme (other than any lot comprising common property within the meaning of the Strata Schemes (Freehold Development) Act 1973 or Strata Schemes (Leasehold Development) Act 1986) is not to be less than the minimum size shown on the Lot Size Map in relation to that land.
Note.
 Part 6 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 provides that a strata subdivision of a building in certain circumstances is specified complying development.
4.2C   Boundary adjustments in certain rural and environment protection zones
(1)  The objective of this clause is to facilitate boundary adjustments between lots where one or more resultant lots do not meet the minimum lot size but the objectives of the relevant zone can be achieved.
(2)  This clause applies to land in the following zones—
(a)  Zone RU2 Rural Landscape,
(b)  Zone RU4 Primary Production Small Lots,
(c)  Zone E2 Environmental Conservation,
(d)  Zone E3 Environmental Management.
(3)  Despite clause 4.1, development consent may be granted to subdivide land by way of a boundary adjustment between adjoining lots where one or more of the lots created do not meet the minimum lot size shown on the Lot Size Map in relation to that land, if the consent authority is satisfied that—
(a)  the subdivision will not create additional lots or the opportunity for additional dwellings, and
(b)  the number of lots with an area that is less than the minimum size shown on the Lot Size Map in relation to that land after the subdivision will remain the same as or will be fewer than immediately before the subdivision, and
(c)  the number of dwellings or opportunities for dwellings on each lot after the subdivision will remain the same as before the subdivision, and
(d)  the potential for land use conflict will not be increased as a result of the subdivision, and
(e)  if the land is in Zone RU2 Rural Landscape or Zone RU4 Primary Production Small Lots—the agricultural viability of the land will not be adversely affected as a result of the subdivision, and
(f)  if the land is in Zone E2 Environmental Conservation or Zone E3 Environmental Management—the subdivision will result in the continued protection and long-term maintenance of the land, and
(g)  the boundary adjustment is consistent with the objectives of the relevant zone.
(4)  In determining whether to grant development consent for the subdivision of land under this clause, the consent authority must consider the following—
(a)  the existing uses and approved uses of other land in the vicinity of the subdivision,
(b)  whether or not the subdivision is likely to have a significant impact on land uses that are likely to be preferred and the predominant land uses in the vicinity of the development,
(c)  whether or not the subdivision is likely to be incompatible with a land use on any adjoining land,
(d)  whether or not the subdivision is appropriate having regard to the natural and physical constraints affecting the land,
(e)  whether or not the subdivision is likely to have a significant adverse impact on the environmental values of the land.
(5)  This clause does not apply—
(a)  in relation to a subdivision of individual lots in a strata plan or community title scheme, or
(b)  if the subdivision would create a lot that could itself be subdivided in accordance with clause 4.1.
4.3   Height of buildings
(1)  The objectives of this clause are as follows—
(a)  to revitalise the Cessnock city centre to facilitate high density residential, commercial and retail development, to ensure that it develops in a coordinated and cohesive manner,
(b)  to ensure that taller buildings are appropriately located and consistent with the environmental setting and landform,
(c)  to encourage mixed use development with residential components, high residential amenity and active street frontages, while permitting adequate sunlight access to key areas of the public domain.
(2)  The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.
4.4   Floor space ratio
(1)  The objectives of this clause are as follows—
(a)  to provide sufficient floor space for high quality development,
(b)  to regulate the density of development and generation of vehicular and pedestrian traffic,
(c)  to facilitate development that contributes to the economic growth of the Cessnock city centre.
(2)  The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.
4.5   Calculation of floor space ratio and site area
(1) Objectives The objectives of this clause are as follows—
(a)  to define floor space ratio,
(b)  to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to—
(i)  prevent the inclusion in the site area of an area that has no significant development being carried out on it, and
(ii)  prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and
(iii)  require community land and public places to be dealt with separately.
(2) Definition of “floor space ratio” The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.
(3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be—
(a)  if the proposed development is to be carried out on only one lot, the area of that lot, or
(b)  if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.
In addition, subclauses (4)–(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development.
(4) Exclusions from site area The following land must be excluded from the site area—
(a)  land on which the proposed development is prohibited, whether under this Plan or any other law,
(b)  community land or a public place (except as provided by subclause (7)).
(5) Strata subdivisions The area of a lot that is wholly or partly on top of another or others in a strata subdivision is to be included in the calculation of the site area only to the extent that it does not overlap with another lot already included in the site area calculation.
(6) Only significant development to be included The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot.
(7) Certain public land to be separately considered For the purpose of applying a floor space ratio to any proposed development on, above or below community land or a public place, the site area must only include an area that is on, above or below that community land or public place, and is occupied or physically affected by the proposed development, and may not include any other area on which the proposed development is to be carried out.
(8) Existing buildings The gross floor area of any existing or proposed buildings within the vertical projection (above or below ground) of the boundaries of a site is to be included in the calculation of the total floor space for the purposes of applying a floor space ratio, whether or not the proposed development relates to all of the buildings.
(9) Covenants to prevent “double dipping” When development consent is granted to development on a site comprised of 2 or more lots, a condition of the consent may require a covenant to be registered that prevents the creation of floor area on a lot (the restricted lot) if the consent authority is satisfied that an equivalent quantity of floor area will be created on another lot only because the site included the restricted lot.
(10) Covenants affect consolidated sites If—
(a)  a covenant of the kind referred to in subclause (9) applies to any land (affected land), and
(b)  proposed development relates to the affected land and other land that together comprise the site of the proposed development,
the maximum amount of floor area allowed on the other land by the floor space ratio fixed for the site by this Plan is reduced by the quantity of floor space area the covenant prevents being created on the affected land.
(11) Definition In this clause, public place has the same meaning as it has in the Local Government Act 1993.
4.6   Exceptions to development standards
(1)  The objectives of this clause are as follows—
(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—
(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.
(4)  Development consent must not be granted for development that contravenes a development standard unless—
(a)  the consent authority is satisfied that—
(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and
(ii)  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and
(b)  the concurrence of the Planning Secretary has been obtained.
(5)  In deciding whether to grant concurrence, the Planning Secretary must consider—
(a)  whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and
(b)  the public benefit of maintaining the development standard, and
(c)  any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.
(6)  Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if—
(a)  the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or
(b)  the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard.
Note.
 When this Plan was made, it did not include Zone RU1 Primary Production, Zone RU6 Transition, Zone E3 Environmental Management or Zone E4 Environmental Living.
(7)  After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant’s written request referred to in subclause (3).
(8)  This clause does not allow development consent to be granted for development that would contravene any of the following—
(a)  a development standard for complying development,
(b)  a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated,
(ba)  clause 4.1D,
(c)  clause 5.4,
(ca)  clause 6.1 or 6.2,
(cb)  clause 7.11B.