Tweed Local Environmental Plan 2014
Current version for 1 July 2020 to date (accessed 10 July 2020 at 07:54)
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 minimise unplanned rural residential development.
(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.
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 RU1 Primary Production,
(b)  Zone RU2 Rural Landscape,
(c)  Zone R5 Large Lot Residential,
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   Minimum subdivision lot size for strata plan schemes in certain rural 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 is proposed to be used, for residential accommodation or tourist and visitor accommodation—
(a)  Zone RU1 Primary Production,
(b)  Zone RU2 Rural Landscape.
(3)  The size of any lot resulting from a subdivision of land to which this 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 strata subdivision of a building in certain circumstances is specified complying development.
4.1B   Minimum subdivision lot size for certain split zones
(1)  The objectives of this clause are as follows—
(a)  to provide for the subdivision of lots that are within more than one zone but cannot be subdivided under clause 4.1,
(b)  to ensure that the subdivision occurs in a manner that promotes suitable land use and development.
(2)  This clause applies to each lot (an original lot) that contains—
(a)  land in a residential, business or industrial zone, and
(b)  land in Zone RU1 Primary Production or Zone RU2 Rural Landscape.
(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 that has an area that is not less than the minimum lot size shown on the Lot Size Map in relation to that land, and
(ii)  all the land in Zone RU1 Primary Production or Zone RU2 Rural Landscape, 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 subdivision lot size for boundary adjustments
(1)  The objective of this clause is to permit boundary adjustments between 2 or more lots where one or more of the resulting lots would be less than the minimum lot size shown on the Lot Size Map in relation to that land.
(2)  This clause applies to land in the following zones—
(a)  Zone RU1 Primary Production,
(b)  Zone RU2 Rural Landscape,
(c)  Zone R5 Large Lot Residential.
(3)  Despite clause 4.1, development consent may be granted for the subdivision of land by way of an adjustment of boundaries between adjoining lots where the size of one or more of the lots resulting from the subdivision would be less than the minimum lot size shown on the Lot Size Map in relation to the land if the consent authority is satisfied that the subdivision will not result in—
(a)  an increase in the number of lots, or
(b)  an increase in the number of dwellings or opportunities for dwellings on each lot, or
(c)  an increase in the possibility of land use conflict, or
(d)  an adverse impact on the environmental values or agricultural viability of the land.
(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 use referred to in paragraph (a) or (b),
(d)  whether or not the subdivision is likely to be incompatible with a use of land in any adjoining zone,
(e)  any measures proposed by the applicant to avoid or minimise any incompatibility referred to in paragraph (c) or (d),
(f)  whether or not the subdivision is appropriate having regard to the natural and physical constraints affecting the land.
(5)  This clause does not apply in relation to a subdivision under the Community Land Development Act 1989 or the Strata Schemes Development Act 2015.
4.1D   Minimum lot size for certain residential accommodation in Zones R2 and RU5
(1)  The objective of this clause is to permit certain types of residential accommodation and manor houses in Zone R2 Low Density Residential and Zone RU5 Village in particular circumstances.
(2)  This clause applies to development for the purposes of the following—
(a)  dual occupancies,
(b)  multi dwelling housing,
(c)  manor houses,
(d)  semi-detached dwellings.
(3)  Development to which this clause applies is permitted with consent on land in Zone R2 Low Density Residential and Zone RU5 Village if the lot area of the land allows for—
(a)  if the land is more than 300 metres from a business zone—a minimum lot size of 450 square metres for each dwelling, or
(b)  otherwise—a minimum lot size of 250 square metres for each dwelling.
(4)  In this clause—
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 all of these zones.
(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 workers’ dwelling (see definition of that term in the Dictionary).
4.2A   Subdivision of land in Zone R5
(1)  The objectives of this clause are to provide opportunity for a smaller lot size than the minimum size shown on the Lot Size Map for land in Zone R5 Large Lot Residential if the consent authority is satisfied that—
(a)  the lot size would not jeopardise the semi-rural character and environmental values of the area, and
(b)  there is, or will be, in place for the subdivision a sewerage system for the treatment and disposal of sewage to ensure there will be no harm to human health or the natural environment.
(2)  Despite clause 4.1, development consent may be granted to subdivide land identified as “Area A” on the Lot Size Map for residential purposes to create a lot of a size that is not less than 0.4 hectares if the consent authority is satisfied the lot—
(a)  will be adequately connected to a water reticulation system or a rainwater tank, and
(b)  will be adequately connected to the Council’s sewage reticulation system, and
(c)  will not jeopardise the semi-rural character and environmental values of the area.
4.2B   Erection of dwelling houses and dual occupancies on land in certain rural and residential 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 and dual occupancies in rural and residential zones.
(2)  This clause applies to land in the following zones—
(a)  Zone RU1 Primary Production,
(b)  Zone RU2 Rural Landscape,
(c)  Zone R5 Large Lot Residential.
(3)  Development consent must not be granted for the erection of a dwelling house or a dual occupancy on land to which this clause applies unless the land—
(a)  is a lot that is at least the minimum lot size shown on the Lot Size Map in relation to that land, or
(b)  is a lot created under this Plan (other than under clause 4.2(3)), or
(c)  is a lot created before this Plan commenced and on which the erection of a dwelling house or a dual occupancy 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 dwelling house or a dual occupancy would have been permissible if the plan of subdivision had been registered before that commencement, or
(e)  would have been a lot referred to in paragraph (a), (b), (c) or (d) 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 under clause 4.2.
(4)  Development consent must not be granted under subclause (3) unless—
(a)  no dwelling house or dual occupancy has been erected on the land, and
(b)  if a development application has been made for development for the purpose of a dwelling house or 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 dwelling house or a dual occupancy on land to which this clause applies if there is a lawfully erected dwelling house or a dual occupancy on the land and the dwelling house or the dual occupancy to be erected is intended only to replace the existing dwelling house or dual occupancy.
4.2C   Erection of rural workers’ dwellings in Zones RU1 and RU2
(1)  The objective of this clause is to ensure the provision of adequate accommodation for employees of existing agricultural or rural industries.
(2)  This clause applies to land in the following zones—
(a)  Zone RU1 Primary Production,
(b)  Zone RU2 Rural Landscape.
(3)  Development consent must not be granted to the erection of a rural workers’ dwelling on land to which this clause applies, unless the consent authority is satisfied that—
(a)  the development will be on the same lot as an existing lawfully erected dwelling house, and
(b)  the development will not impair the use of the land for agriculture or rural industries, and
(c)  the agriculture or rural industry being carried out on the land has a demonstrated economic capacity to support the ongoing employment of rural workers, and
(d)  the development is necessary considering the nature of the agriculture or rural industry land use lawfully occurring on the land or as a result of the remote or isolated location of the land.
4.3   Height of buildings
(1)  The objectives of this clause are as follows—
(a)  to establish the maximum height for which a building can be designed,
(b)  to ensure that building height relates to the land’s capability to provide and maintain an appropriate urban character and level of amenity,
(c)  to ensure that taller development is located in more structured urbanised areas that are serviced by urban support facilities,
(d)  to encourage greater population density in less car-dependant urban areas,
(e)  to enable a transition in building heights between urban areas comprised of different characteristics,
(f)  to limit the impact of the height of a building on the existing natural and built environment,
(g)  to prevent gross overshadowing impacts on the natural and built environment.
(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 define the allowable development density of a site and for particular classes of development,
(b)  to enable an alignment of building scale with the size of a site,
(c)  to provide flexibility for high quality and innovative building design,
(d)  to limit the impact of new development on the existing and planned natural and built environment,
(e)  to encourage increased building height and site amalgamation at key locations in Tweed.
(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 all of these zones.
(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,
(c)  clause 5.4.