Non-complying Development

Our client owned a large industrial parcel of land situated in the Industry / Business (Gepps Cross Gateway) Zone. The site consisted of several large industrial commercial buildings used for manufacturing. In addition a small building with local heritage status was situated in one corner on the main road.

Our brief was to create a separate allotment for this building which was being used by the local Tatar Community. The balance allotment was contracted to a developer for a potential shopping centre.

A subsequent land division application was duly prepared and lodged by our office. Whilst in our opinion the type of development that we were seeking approval for was neither complying nor non-complying, the council nevertheless assessed the application as non-complying. With our arguments presented in the short Statement of Support and the subsequent Statement of Effect, the council planner was supportive of the application and recommended approval.

The application was subsequently refused by the Development Assessment Panel (DAP) at the next meeting on the basis that our proposed division was seeking to formalise an existing non-complying land use.

Residential Code vs. The Development Plan

The subject land consisted of a rectangular allotment with frontage to a main road and rear access to a Public Laneway. The existing dwelling had been modified over the years with several additions that covered the majority of the width of the site.

Our brief was to divide off a separate allotment on the side which necessitated part demolition of the existing dwelling.

If our client received a favourable response for the proposed allotment, then they would consider demolishing the rest of the dwelling to create further allotments.

The council response to our initial application was thus “the following issues have become apparent with your proposal – the standard minimum frontage for detached dwellings in an R16 Zone is 10.00 metres.  Council considers the proposed frontage of 8.70 metres too narrow in context of the existing street scope and previous divisions in the locality. Council is seeking to have the dividing boundary relocated to 900mm from the existing dwelling; this will effectively increase the frontage to approximately 10.00 metres.”

A subsequent phone call from the council planner reiterated the above and we were informed that if we did not accede to their request, then they would recommend refusal.

Decision on Merit

Our clients had purchased a corner site with the intention of retaining the existing dwelling (to be kept in the family) and constructing a separate dwelling next door, for their retirement.

They approached a volume builder who referred them to their land division consultants.  The advice they received was that they would not achieve subdivision approval for a separate allotment and at best they might be able to build a small “granny flat” which could never exist on its own title.

This would have had a serious impact on the financial viability of the whole project.  

As a last resort they sought the advice of a bespoke builder who instructed the couple to seek advice from our firm.

Our initial appraisal was that the proposal, whilst being deficient in area and Private Open Space, could be assessed on merit if tackled properly from the outset.

Our office then lodged the Proposed Plan of Division with a Supporting Planning Statement outlining the merits of the proposal.



WITH A passion for land development

and a client focused philosophy

Rocco Cavallo & Daryl Forest began operating as a partnership in January 1992 and quickly established itself as a reputable firm with both clients and peers, specialising in Land Divisions.
Licensed Surveyors working onsite