Characterisation – The value of getting it right

Characterisation is the process of defining a land use (‘or development’). This is critical to determining whether that use is permitted in any particular zone. In this article we demonstrate the importance of correctly characterising development using a real-life example.

The Details Matter!

Our client sought to develop a property zoned R2 Low Density Residential for residential purposes under the Wollongong Local Environmental Plan 2009 (‘WLEP’). The proposal was to construct four new double storey dwellings and subdivide the land into four lots concurrently. The concurrent construction and subdivision of certain dwellings is permitted under the WLEP (see Clause 4.1).

Each allotment was to contain one dwelling. The dwellings on Lot 1 and Lot 2 were to be positioned so that they shared a common wall. Likewise, the dwellings on Lot 3 and Lot 4 also shared a common wall along the adjoining boundary.

At a pre-lodgement meeting with Council it became clear that Council and our client had differing views on the proper characterisation of the proposal. Our client sought to characterise the proposal as ‘semi-detached dwellings’ while Council held the view that the proposal was for ‘multi-dwelling housing’.

“Multi dwelling housing” is defined in the Dictionary to the WLEP as follows:

Multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building.

Although more than 3 dwellings were proposed, our client intended for the subdivision element of the proposal to be completed prior to the issue of an occupation certificated for the new dwellings. Therefore, the development could not be said to be multi dwelling housing as the dwellings were to be situated on separate allotments.

The Dictionary to the WLEP defines “semi-detached dwelling” as follows:

Semi-detached dwelling means a dwelling that is on its own lot and is attached to only one other dwelling.

The development clearly falls within this definition given that each dwelling was to be located on its own lot and attached to only one other dwelling. Development applications for semi-detached dwellings and Torrens title subdivision of a site have been accepted by the Court (see Andonovski v Inner West Council [2018] NSWLEC 1668).

The timing of the subdivision became a critical point of distinction. Although both forms of housing are permitted in the R2 zone, different controls apply to multi-dwelling housing and semi-detached dwellings under the Wollongong Development Control Plan 2009 (‘WDCP’). Accordingly, having the proposal correctly characterised as semi-detached dwellings was a major advantage to our client.