Procedure for determining a dwelling entitlement
Note: This procedure only applies to land within the RU2 Rural Landscape, RU4 Primary
Production Small Lots, RU6 Transition, E2 Environmental Conservation, E3
Environmental Management and E4 Environmental Living Zones.
Purpose
The purpose of this procedure is to provide a clear guide for establishing whether a parcel of land
contains a dwelling entitlement. A dwelling entitlement provides a right to make an application for
the construction of a dwelling house on a parcel of land. However, it does not provide a guaranteed
right as consent is dependant upon a merit-based assessment under Section 79C of the
Environmental Planning and Assessment Act, 1979.
Background
The existing holding provisions have been included in the Lake Macquarie Local Environmental Plan
(LMLEP) 2014 to prevent further fragmentation of rural and environmental protection land and to
protect rural landowners’ dwelling entitlement where the existing property is less than the new
minimum lot size. This is known as the “existing holdings” provisions.
Clause 4.2A (7) of the LMLEP 2014 defines an “existing holding” as land that:
(a) was a holding on 21 August 1981, and
(b) is a holding at the time the application for development consent referred to in subclause (3) is
lodged,
whether or not there has been a change in the ownership of the holding since 21 August 1981, and
includes any other land adjoining that land acquired by the owner since 21 August 1981.
holding means all 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.
Clause 4.2A (3) of the LMLEP 2014 stipulates that development consent must not be granted for the
erection of a dwelling house 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 before this Plan commenced and on which the erection of a dwelling house was
permissible immediately before that commencement, or
(c) 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 would have been
permissible if the plan of subdivision had been registered before that commencement, or
(d) is an existing holding, or
(e) would have been a lot or a holding 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.
Clause 4.2A (4) of the LMLEP 2014 stipulates that development consent must not be granted under
subclause (3) unless:
(a) no dwelling house has been erected on the land, and
(b) if a development application has been made for development for the purpose of a dwelling house
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.
Clause 4.2(A) (5) of the LMLEP 2014 recognises that development consent may be granted for the
erection of a dwelling house on land to which this clause applies if 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.
It is important to note that under Clause 4.2A (6) of the LMLEP 2014 land ceases to be an existing
holding for the purposes of subclause (3)(d) if an application for development consent referred to in
that subclause is not made in relation to that land before 31 December 2016.
Procedure for determining a dwelling entitlement
The recommended procedure for determining a dwelling entitlement is as follows:
1. Determine the zoning of the subject parcel to establish the minimum area on which a dwelling
may be permitted or refer to the Lot Size Map. The following table summarises the minimum
areas required for dwelling entitlement:
Zoning
Minimum Area
RU2 Rural Landscape
20ha
RU4 Primary Production Small
Lots
1ha
RU6 Transition
200ha
E2 Environmental Conservation
40ha
E3 Environmental Conservation
40ha
E4 Environmental Living
2ha
2. Determine the area of the relevant parcel.
If the area of the subject parcel is greater than, or equal to, the minimum lot size referred
to in the table above, no further investigation regarding dwelling entitlement is required.
3. Where the area of the subject parcel is less than the minimum area shown above, carry out title
searches to determine if the parcel consists of the ‘whole’ of an existing holding. This is
achieved by carrying out the following steps:
(a)
Undertake a title search to determine the registered proprietor as at 21 August 1981.
If the parcel of land was created after 21 August 1981, the parcel cannot be
considered under the existing holdings provisions.
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Carry out further title searches as at 21 August 1981 on all parcels “adjoining or
adjacent” to the subject land. In this context, “adjoining or adjacent” includes:
(b)

All parcels with a common boundary with the subject land;

All parcels separated from the subject land by a road, waterway, railway
line or similar; or

All parcels with a common corner as the subject land.
Example of adjoining and adjacent allotments
(c)
Define those parcels as described in (b) above that were in the same ownership
on 21 August 1981, including the parcel of land that is the subject of this
investigation. The search may need to be extended to include parcels “adjoining
or adjacent” to those parcels described in (b) above if common ownership is
determined.
(d)
The aggregation of all parcels (lots) identified in (a) to (c) above (all lots in
common ownership as at 21 August 1981), make up an existing holding.
All lots within the identified existing holding need to be under common
ownership currently in order for the existing holding to be retained.
The existing holding provisions will only apply under the following
circumstances:

Where none of the allotments within the whole of the existing holding
have been sold off separately from the remainder of the existing
holding;

Where none of the allotments have been subdivided after the 21 August
1981; or

Where none of the allotments have been modified or realigned as a
result of any major boundary adjustments after the 21 August 1981.
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(e)
Where the existing holding provisions apply to the subject land, determine
whether a dwelling has been constructed on any parcel of the existing holding.
If any parcel of an existing holding contains a dwelling, then no further
dwelling entitlement exists, under existing holdings provisions, on any
other parcel within that existing holding.
(f)
To determine if a site can have a dwelling house, a development application and
supporting information (including the existing holdings search) should be
submitted to Council for assessment
Note: The investigation of ‘existing holdings’ should be carried out on behalf of the applicant
by a surveyor, planner, solicitor or other suitably qualified person.
Further information
For further information or clarification of any of the above, please contact Council’s Duty
Planner on 02 4921 0333.
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