Background
Travis Green applied to Central Coast Council to subdivide his property at 203 Matcham Road, Matcham, NSW into two Torrens title lots. Proposed Lot 1 (southern portion) comprises 7,261 m² and retains the existing dwelling and access from Matcham Road. Proposed Lot 2 (northern portion) comprises 7,080 m² of vacant land with a building envelope and new vehicle access from Elaine Road. The application was lodged on 12 September 2024.
On 15 May 2025, the Central Coast Local Planning Panel refused the development application. Green then filed an appeal in Class 1 of the Land and Environment Court under section 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) on 10 November 2025. A conciliation conference was conducted on 9 and 12 June 2026, during which the parties reached agreement on an amended development application subject to agreed conditions of consent.
The Court’s Holding
The Court upheld Green’s appeal and granted development consent for the two-lot subdivision, subject to conditions set out in Annexure A. The critical issue was that both proposed lots fell below the 1 hectare minimum lot size prescribed by Interim Development Order No 122 (IDO 122) for the 7(C2) Scenic Protection zone—Lot 1 representing a 27.39% variation and Lot 2 a 29.2% variation to the standard. Green obtained an objection under clause 7 of State Environmental Planning Policy No 1—Development Standards (SEPP 1).
The Court found the SEPP 1 objection well founded because: (1) Erina Creek naturally and physically delineates the site into two functionally independent portions; (2) each proposed lot has wholly separate and independent road frontage and vehicular access; (3) the lot sizes align with established subdivision patterns in the Matcham locality; (4) the building envelope, Asset Protection Zone, wastewater disposal area, and vehicle access for Lot 2 can be located entirely within existing cleared areas without removing native vegetation; and (5) a future dwelling on Lot 2 can achieve the required Bushfire Attack Level (BAL 29) without clearing vegetation. Accordingly, compliance with the minimum lot size standard was unreasonable or unnecessary in the circumstances, satisfying the test for deviation under SEPP 1.
The Court also confirmed that all jurisdictional prerequisites were satisfied, including: community participation (one submission received and considered); owner’s consent (applicant was the owner); integrated development requirements for bushfire safety and water management approvals; and that the Resilience SEPP contaminated land assessment was satisfied. The Court noted that no biodiversity development assessment report was required because the proposed development involves no native vegetation clearing and will have low or no impact on koalas or koala habitat. Green was required to pay a contribution of $139,387.00 to Central Coast Council for land acquisition or improvement as per IDO 122 clause 18(4)(b)(ii).
Key Takeaways
- Courts will grant relief from development standards under SEPP 1 when circumstances demonstrate that compliance is unreasonable or unnecessary, particularly where natural features (here, a creek) create functional divisions justifying the variance.
- Comprehensive environmental and bushfire assessment reports, together with arboricultural advice confirming no vegetation removal, can support an argument that proposed development will not trigger biodiversity offset scheme requirements.
- Party agreement at a section 34 conciliation conference may resolve appellate disputes without requiring a contested hearing or judicial determination of merits.
Why It Matters
This decision reinforces that developers seeking to subdivide land below prescribed minimum lot sizes in NSW have a viable pathway through SEPP 1 objections if they can demonstrate that the deviation is justified by the site’s physical circumstances, consistency with local patterns, and environmental constraints. The court’s acceptance of the parties’ agreed position at conciliation, without independent merit assessment, illustrates the importance of early engagement and negotiation in development disputes.
For practitioners and landowners, the judgment demonstrates that detailed technical reports (flood risk, arboricultural, bushfire assessment) coupled with clear planning justifications can persuade councils and courts to support development in sensitive environmental zones. The decision also clarifies the interplay between local interim development orders and state planning policies, and the continued application of SEPP 1 to development standards in IDOs despite SEPP 1’s nominal repeal.