When is a subdivision not a subdivision? When it is a boundary adjustment.

A Boundary Adjustment or boundary realignment is a survey to change the boundaries between two or more lots of land without creating a new lot – for example there are two lots initially and the proposal is to change the boundaries between them so that there will be two lots at the end. Even though technically, in the eyes of most Councils, the Office of the Registrar General, and Land Registry Services NSW, a boundary adjustment is still a subdivision – just creating no additional lots. The distinction between a subdivision and a boundary adjustment becomes especially important when dealing with lots that are smaller than the minimum size under Council’s LEP. This is all to do with legislation which can be confusing and complicated.

A summary of the levels of legislation in relation to boundary adjustment is as follows:

Level 1: Local rules – Development Control Plans (DCP’s) and Council Policies set out specific requirements for development under the Local Environmental Plan. It is possible to obtain a variation from the requirements in a DCP on a case by case basis.

Level 2: Local Environmental Plans – Council’s Local Environmental Plans set out the rules for development within the Local Government Area, including minimum lot size, subdivision controls and other requirements. Variation from the requirements of a LEP is much more difficult, and takes a submission to higher authorities than Council – ie Planning NSW.

There has been provision made within the standard LEP wording for “exceptions to development standards” under Clause 4.6, adopted in most LEPs. This clause allows Councils to approve development with some degree of flexibility in relation to standards, including the minimum lot size. This flexibility is limited, usually to residential zones, and allows for creation of a no more than one lot that is smaller than the prescribed minimum lot size, provided that lot is more than 90% of the prescribed minimum lot size. For example, a subdivision could create three lots from one existing lot. Assume the prescribed minimum lot size is 600m² in a residential zone. Using Clause 4.6, one of the three created lots could be less than 600m² – but no smaller than 540m², or 90% of the minimum lot size.

Level 3: State Environmental Planning Policies (SEPP) – Rules set out by the State of NSW which can override rules in a DCP, Council policy or LEP.

So how does this help? Taking Tweed Council’s RU2 Rural Landscape zone as an example, the minimum lot size for subdivision is set at 40 hectares (about 100 acres). There are no exceptions to this rule under Council’s LEP, effectively making subdivision or boundary adjustment in rural zones all but impossible, particularly when any lot has a dwelling upon it. SEPP (Exempt and Complying Development Codes) 2008 sets out certain developments that are able to be declared Exempt (not requiring a development application to proceed), including minor Boundary Adjustments. Clause 2.75 of this SEPP says:

2.75   Specified development

The subdivision of land, for the purpose only of any one or more of the following, is development specified for this code:

 (a)  widening a public road,

(b)  a realignment of boundaries:

  (i)  that is not carried out in relation to land on which a heritage item or draft heritage item is situated, and

  (ii)  that will not create additional lots or increase the number of lots with a dwelling entitlement or increase the opportunity for additional dwellings, and

  (iii)  that will not result in any lot that is smaller than the minimum size specified in an environmental planning instrument in relation to the land concerned (other than a lot that was already smaller than that minimum size), and

  (iv)  that will not adversely affect the provision of existing services on a lot, and

  (v)  that will not result in any increased fire risk to existing buildings, and

  (vi)  if located in Zone RU1, RU2, RU3, RU4, RU6, E1, E2, E3 or E4—that will not result in more than a minor change in the area of any lot, and

  (vii)  if located in any other zone—that will not result in a change in the area of any lot by more than 10%,

(c)  (Repealed)

(d)  rectifying an encroachment on a lot,

(e)  creating a public reserve,

(f)  excising from a lot land that is, or is intended to be, used for public purposes, including drainage purposes, rural fire brigade or other emergency service purposes or public toilets.

In layman’s terms, this means that a minor realignment of boundaries that complies with the terms above is firstly possible, and secondly exempt from requiring a development application. What this means for landholders is that changes to boundaries are now possible under this SEPP as exempt development.

The process to adjust boundaries under this SEPP starts with a visit to a registered surveyor – Compass Consulting Surveyors for example. Your surveyor can prepare a brief submission for Council asking them to confirm that the proposal is exempt development under the SEPP. Some councils charge a fee to provide a letter in this regard. If Council agree, the survey for the boundary adjustment can proceed, saving the client money which would otherwise have had to be spent on development application preparation and Council fees – and up to 3 months in time. The rest of the plan signing and registration process is as it would be for normal subdivision.

There are specific situations where a realignment of boundaries complies with Clause 2.75. In most cases, sub-clauses (b) or (d) are applied.

The process to adjust boundaries under this SEPP starts with a visit to a registered surveyor – Compass Consulting Surveyors for example. Your surveyor can prepare a brief submission for Council asking them to confirm that the proposal is exempt development under the SEPP. If Council agree, the survey for the boundary adjustment can proceed, saving the client money which would otherwise have had to be spent on development application preparation and Council fees – and up to 3 months in time. The rest of the plan signing and registration process is as it would be for normal subdivision.

Councils are still required to sign the administration sheets of a plan of subdivision prior to the plan being lodged for registration, whether there is development consent or not. Compass Consulting Surveyors have experienced reluctance from some local government officers in accepting realignments of boundaries according to Clause 2.75 of the SEPP (Exempt and Complying Development Codes) 2008. This is in contrast to a fact sheet published by the Department of Planning NSW, which says, in part:

“where the subdivision meets the requirements, the council cannot require applicants to lodge a development applicant for the subdivision. The council also cannot withhold their approval for the section 6.15 certificate.”

https://www.planning.nsw.gov.au/sites/default/files/2023-02/boundary-adjustments-and-strate-subdivisions.pdf

The definition of “realignment of boundaries” is generally taken to be a change to the boundaries of land that creates no new lots. In order for a realignment of boundaries to be considered exempt, it must meet the requirements of 2.75(b). The most common query from Councils is whether a change in area of lots already less than minimum lot size is “minor”. Most councils have accepted that a change in area of no more than 10% (in any zone) is considered to be a minor change, consistent with a minor realignment of boundaries.

An encroachment of a building over a boundary is defined in the Encroachment of Buildings Act 1922. This “includes encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil”. No consideration is given in the SEPP as to whether the land on either side of the boundary is owned by separate entities. If a building encroaches over a boundary, the SEPP gives a mechanism to rectify that encroachment, without the requirement for development consent.

Talk to Compass Consulting Surveyors about the possibilities of a boundary adjustment of your land – you may be pleasantly surprised!

Eric Smith

Registered Surveyor