What happens when development is mischaracterised in a DA?

The Village Building Co. Limited v Queenbeyan-Palerang Regional Council [2026] NSWLEC 1429

In this recent judgment, the Land and Environment Court found that a development can only be properly characterised as an ‘attached dwelling’ where each unit is on its own Torrens title lot.

The Applicant sought consent for construction of several dwellings physically attached to one another, and their strata title subdivision, which the Applicant submitted were ‘attached dwellings’.

Council submitted that the proposed development could be properly characterised as ‘multi-dwelling housing’ and not attached dwellings.

Attached dwellings were permissible under the Local Environmental Plan (LEP) Land Use Table, while several other physically attached development types were not.

The Court considered the definition of ‘attached dwelling’ under the LEP:

attached dwelling means a building containing 3 or more dwellings, where -

a)    each dwelling is attached to another dwelling by a common wall, and

b)    each of the dwellings is on its own lot of land (our emphasis added), and

c)     none of the dwellings is located above any part of another dwelling.

The Court found that at no point in a strata subdivision, whether during the erection of the buildings before the creation of the strata lots or after their creation, will the dwellings ever be on their ‘own lot of land’ as a strata lot is not a ‘lot of land’ and therefore cannot be characterised as an attached dwelling [83]-[85].

This is a reminder that the way in which a development is characterised in a DA and supporting documents is not determinative of the characterisation of that development. The Court or consent authority can make its own finding as to how development should be properly described on the plans and evidence before it.