Kingshill Development No 1 Pty Ltd v Port Stephens Council

[2025] NSWLEC 1

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kingshill Development No 1 Pty Ltd v Port Stephens Council [2025] NSWLEC 1

Hearing dates:

27, 28, 29 May 2024, 6, 14 June, 5, 9 August, 3 September 2024 (further written submissions), 16 October 2024

Date of orders:

17 January 2025

Decision date:

17 January 2025

Jurisdiction:

Class 1

Before:

Pain J

Decision:

See below in [182].

Catchwords:

APPEAL – s 56A Land and Environment Court Act 1979 (NSW) appeal – refusal of concept development application for large urban release area by commissioner – permissible scope of assessment of concept proposal made under s 4.22 of the Environmental Planning and Assessment Act1979 (NSW) – whether concept development application for subdivision – error in application of statutory definition of designated State public infrastructure – error in finding that clause in relevant local environmental plan should be applied in the merit assessment considerations – finding of uncertainty of location of stormwater diversion channel not unlawful – no errors of law in assessment of impacts of concept proposal on wetlands – refusal to grant development consent subject to Grampian conditions permissible – to the extent that errors of law established by appellants these were not vitiating in light of overall judgment

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 1.3, 1.4, 1.5, 4.15, 4.22, 6.1, 6.2, 6.3, 6.4 (as at July 2023), s 5A (as at 24 August 2017)

Biodiversity Conservation Act 2016 (NSW), Sch 9

Biodiversity Conservation (Savings and Transitions) Regulation 2017 (NSW), regs 27, 28

Conveyancing Act 1919 (NSW), ss 23G, 195, 195C, 195G

Interpretation Act 1987 (NSW), s 11

Land and Environment Court Act 1979 (NSW), s 56A

Port Stephens Local Environmental Plan 2000

Port Stephens Local Environment Plan 2013 (NSW), cll 6.1, 6.2 (as at 26 April 2023)

Threatened Species Conservation Act 1995 (NSW), Pt 3

Cases Cited:

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Bisits v Registrar General [2002] NSWSC 543

Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367

Broker Pty Ltd v Shoalhaven City Council (2008) 164 LGERA 161; [2008] NSWCA 311

Cai v Fairfield City Council [2022] NSWLEC 58

Cavanagh v Wollondilly Shire Council (No 2) [2019] NSWLEC 181

Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297; [1981] HCA

Deniliquin Municipal Council v Jones (1929) 9 LGR (NSW) 96

Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380; [2003] NSWLEC 90

Fremantle Lawyers Pty Ltd v Sarich (2019) 54 WAR 113; [2019] WASCA 48

Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59

Hoxton ParkResidents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349

Hoy v Coffs Harbour City Council [2015] NSWLEC 128

Kelly v R (2004) 218 CLR 216; [2004] HCA 12

Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23

Kingshill Development No 1 Pty Ltd and Kingshill No 2 Pty Ltd v Port Stephens Council and Hunter and Central Coast Regional Planning Panel [2023] NSWLEC 1478

Leichhardt Municipal Council v Seatainer TerminalsPty Ltd (1981) 48 LGRA 409

Minister of Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

Monnock v Pittwater Council (2003) 127 LGERA 66; [2003] NSWLEC 151

Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 48 ALJR 448

NCV Enterprises Pty Ltd v Tweed Shire Council [2024] NSWLEC 14

Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54

Permanent Trustee Co of NSW Ltd v Council of Municipal of Campbelltown (1960) 105 CLR 401; [1960] HCA 62

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Re Nelson and Tammer’s Contract [1952] VLR 391

Re Transfer to Palmer (1903) 23 NZLR 1013

Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204

Tanious v Georges River Council [2016] NSWLEC 142

Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Young v Parramatta City Council (2006) 144 LGERA 193; [2006] NSWLEC 1164nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191

Texts Cited:

Pearce and Geddes, Statutory Interpretation in Australia (10th ed, 2024)

Category:

Principal judgment

Parties:

Kingshill Development No 1 Pty Ltd (First Appellant)
Kingshill Development No 2 Pty Ltd (Second Appellant)
Port Stephens Council (First Respondent)
Hunter and Central Coast Regional Planning Panel (Second Respondent)

Representation:

Counsel:
T Robertson SC with T To (Appellants)
No appearance (First Respondent)
J Reid (Second Respondent)

Solicitors:
Colin Biggers and Paisley (Appellants)
Submitting appearance (First Respondent)
Department of Planning, Housing and Infrastructure (Second Respondent)

File Number(s):

2023/00299740

JUDGMENT

Section 56A appeal principles

Site description

Topic 1: Subdivision of land proposed (grounds 1, 2, 3)

1A. Is subdivision of land as defined in the EPA Act proposed? ss 4.22, 6.2(1) (grounds 1, 2(a), 3(a))

Conveyancing Act 1919 (NSW)

Environmental Planning and Assessment Act 1979 (NSW)

Port Stephens Local Environmental Plan 2013 (NSW)

Appellants’ submissions

Panel’s submissions

Finding on grounds 1, 2(a), 3(a) whether subdivision of land

Context

Does s 4.22 inform construction of s 6.2? (question 3)

Use of land not subdivision

‘Effective subdivision’

Floodgates?

Separate use or occupation cannot be division of land

More context in s 6.2

No new lots

Conclusion on Topic 1A

1B. If Concept DA is for subdivision, is cl 6.1(2) of PSLEP engaged? (grounds 2(b)-(d))

Appellants’ submissions

Panel’s submissions

Finding on Topic 1B

1C. Stormwater Channel not designated public infrastructure (ground 3(b))

Can issue be raised?

Substantive issues in ground 3(b)

Topic 2: Stormwater Channel (grounds 4, 5)

Extracts from judgment

Finding on Topic 2

Topic 3: Biodiversity (ground 6)

Appellants’ submissions

Finding on Topic 3

Topics 4 & 5: Wetlands and groundwater (grounds 7, 8, 9)

Finding on ground 7

Finding on ground 8

Finding on ground 9(a)(b)(c)

Topic 6: Uncertainty and Grampian conditions (grounds 10, 11, 12)

Appellants’ submissions

Finding on Topic 6

Overall conclusion on outcome of the appeal

Costs

Order

JUDGMENT

1. In Kingshill Development No 1 Pty Ltd and Kingshill No 2 Pty Ltd v Port Stephens Council and Hunter and Central Coast Regional Planning Panel [2023] NSWLEC 1478 (Kingshill) a Commissioner dismissed the appeal of the refusal of a development application (DA) for a concept development for residential subdivision (Concept DA). The Concept DA was made pursuant to s 4.22 of the Environmental Planning and Assessment Act 1979 (EPA Act) and included Stage 1 for ‘initial site preparation works and establishment of an in-perpetuity Conservation Area’ (CA). The Concept DA relates to land known as 3221 Pacific Highway, Kings Hill and 35 Six Mile Road, Kings Hill (the Site) which is part of the Kings Hill urban release area. Kingshill Development No 1 Pty Ltd and Kingshill Development No 2 Pty Ltd (the Appellants) appeal pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) the decision of the Commissioner in Kingshill.

2. The Appellants are the owners of the Site. The First Respondent Port Stephens Council (Council) has lodged a submitting appearance. The Second Respondent is the Hunter and Central Coast Regional Planning Panel (the Panel). The Concept DA was refused by the Panel on 4 February 2022. A Class 1 application was filed on 14 December 2021.

3. Kingshill is 444 paragraphs reflecting the number and complexity of the issues raised in the appeal. Numerous grounds of appeal are identified in the further amended summons dated 28 May 2024, reduced from 17 to 12 grounds in the course of the appeal hearing.

Section 56A appeal principles

4. I outlined the principles relevant to determining a s 56A appeal in Hoy v Coffs Harbour City Council [2015] NSWLEC 128 at [7]-[11]:

[7] It is important to state at the outset the principles which apply in appeals under s 56A of the Court Act in matters of this kind. Principles which have been well recognised as applying to s 56A appeals are correctly stated in the Council’s submissions and these were drawn on and further developed in this and the following paragraphs. An appeal must identify a question of law explicitly or implicitly decided at first instance: Warkworth Mining Ltd v Bulga Mulbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527 at [4]. That question must also be sufficiently material that a wrong answer vitiates the decision: Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 at [29], [133]-[136] and [191]. The question must also arise from a contest or dispute between the parties: Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [147], [160] per Basten JA. The merits of a commissioner’s decision cannot be the subject of a s 56A appeal.

[8] An appeal under s 56A is “on a question of law” not limited, however, to “an error of law”: ISPT Pty Ltd v Valuer General [2009] NSWCA 31 (2009) 165 LGERA 25 at [3] per Allsop P. In the absence of any statutory indication of the weight to be given to various considerations, an allegation that insufficient weight was given to particular evidence is generally insufficient as a ground of appeal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41, Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at [57], Hoskins v Waverley Council [1999] NSWLEC 236 at [11]-[12].

[9] A commissioner or judge of the Court is required to address relevant material issues by exposing his or her reasoning: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [43] per Tobias JA, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 per Kirby P, at 279 per McHugh JA. The Court at first instance is not required to “deal with every argument raised and every possibility that could be adverted to”: Comcare v Forbutt [2000] FCA 837 at [58] per Heerey J cited by Tobias JA in Segal at [71].

[10] The judgment should be read on the basis that the Commissioners and the parties were present and understood the issues presented by them: see by analogy Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292; (2010) 181 LGERA 352 at [79].

[11] An approach to finding error that is nitpicking with an eye to identifying error is not permissible, as identified in numerous authorities commencing from Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368. Very importantly, a judgment must be considered as a whole, not selecting parts of the judgment and reading them out of context: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291, O’ Donnell v Sutherland Shire Council [2011] NSWLEC 184 at [23].

5. I also adopt the following principles relevant to the determination of such appeals as conveniently summarised by Pepper J in Tanious v Georges River Council [2016] NSWLEC 142 at [10] as follows:

[10] … A “verbal slip or infelicity of expression does not necessarily warrant drawing an inference of an error of law” (Council of the City of Sydney v Base Backpackers Pty Ltd [2015] NSWLEC 63 at [57]);

…

fifth, an error will not be material to the decision if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioner below in a way that called for a reasoned consideration of that matter (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386 and Davis v Gosford City Council [2013] NSWLEC 49 at [75]). A party is bound by the way it conducted its case at the hearing (Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 at [47]–[55] and Davis at [75]–[77]).

6. A number of these principles will need to be considered in this appeal. Findings of fact are not generally reviewable, Cai v Fairfield City Council [2022] NSWLEC 58 at [38].

Site description

7. Kingshill included a description of the Concept DA at [35]-[37] as follows:

[35] The amended application, as described to the Court, has two key components, fundamentally being:

(a) A concept plan/proposal that outlines seven precinct areas, creating a development footprint for future residential subdivision/development, with associated access (hereafter the impact area); and a Conservation Area (hereafter the CA); and

(b) Stage 1 works relating to the establishment of the CA and clearing of the impact area (for future development).

Concept proposal

[36] The concept proposal is shown in the proposed precinct plan, DA-08-C2.00 Revision 4 (dated 17 March 2023) as Figure 1 below:

Figure 1

[37] The amended concept proposal is described to the Court as being for:

(a) Definition of seven (development) precincts, ringed by a ‘Koala’ fence, an asset protection zone (APZ) and perimeter roads, that are connected by roads/paths (some elevated above riparian corridors), with ‘indicative’ internal road layouts;

(b) Within the precincts are areas of defined and indicative use, including for residential, business/commercial, town centre (precinct 3), a café (in precinct 6), local/district parks, a school (in precinct 4), stormwater devices and community/educational centre/work depot;

(c) Definition of the east-west collector road (the E-W road), extending from the Pacific Highway to Newline Road, as well as an indicative alignment of the north-south collector road;

(d) Definition of a CA; and

(e) Within the CA are areas outlined for water supply storage/reservoir and access tracks/roads to support the future development of the precincts.

8. An evidence book in five volumes was tendered (except for an affidavit at Tab 77).

Topic 1: Subdivision of land proposed (grounds 1, 2, 3)   

9. Three grounds of appeal concern whether the Concept DA is for the subdivision of land and, if it is, what legal requirements arise, as follows:

1. The Commissioner erred in law by finding that the Concept DA was for subdivision of land by –

a. misconstruing s. 6.2(1) subdivision of land and s. 4.22 of the Environmental Planning and Assessment Act 1979 (EPA Act) when s. 4.22(4) of the EPA Act prohibited the carrying out of the concept proposals for development (including future subdivision) without further development application(s) being approved, in finding that approval of the Concept DA (and in particular the proposed precinct plan):

(i) was “effective” to render different parts of the land available for separate occupation, use or disposition within s. 6.2(1)(b) of the EPA Act [77], [78]; and

(ii) would effect a subdivision of land into, variously, lots [107], two uses [74] and two parts comprising the concept proposal and the stage 1 works within defined areas [73],

b. by failing to identify where consent to the Concept DA would effect a division of the land into two or more parts within s. 6.2(1);

c. by misconstruing s. 6.2 [EPA Act] in finding that it was sufficient if the “intent” of the Concept DA was to adapt the land for distinct and separate uses [78], without finding (as required by s. 6.2) that the application was for the division of the land into two or more parts.

2. The Commissioner erred in law by finding that cl. 6.1 of the Port Stephens Local Environmental Plan 2013 (the LEP) was engaged and applicable [387], and therefore that consent could not be granted without the Director General of Planning providing a Satisfactory Arrangements Certificate (Certificate) as purportedly required by cl. 6.1 of the LEP [395], [397] by –

a. finding that the Concept DA was for the subdivision of land, as set out in Ground 1;

b. [Alternatively] on the assumption that the Concept DA was for the subdivision of land, finding that that [sic] cl 6.1(2) of the LEP was engaged [387] when cl. 6.1(2) of the LEP was concerned with, and only with, a subdivision that “would create a lot”, and when the Concept DA did not propose or seek any consent for creation of a lot;

c. misconstruing cl. 6.1(2) of the LEP by finding that it posed alternative tests for its application and it was sufficient if the application satisfied the second test that the land was part of an urban release area [393];

d. misconstruing or misapplying cl 6.1(2) of the LEP, by failing to find that the Concept DA would create a lot smaller than the minimum lot size required by cl. 6.1(2), despite the Commissioner finding that there was no minimum lot size applicable to the site at that time [391].

3. The Commissioner erred in law by finding the appellants had unreasonably deferred consideration of “designated State public infrastructure” to future applications [396] – [397] and particularly that the location and approval of proposed Stormwater Channel was not sufficiently certain to address the requirements of, and enable issue of the Certificate under, cl. 6.1 of the LEP [414], [420], [421], [423] and [424] by –

a. taking account of her earlier errors of law in in finding that the application was for subdivision of land (cf. Ground 1) and was an application to which cl. 6.1 of the LEP applied (cf. Ground 2); and

b. in finding that the Stormwater Channel was “designated State public infrastructure” as defined, whereas the definition in the Dictionary to the LEP did not include stormwater works [421].

10. These grounds can in turn be further divided. Grounds 1, 2(a) and 3(a) can be considered together (Topic 1A). Grounds 2(b)-(d) can be considered together (Topic 1B). Ground 3(b) arises separately (Topic 1C).

1A. Is subdivision of land as defined in the EPA Act proposed? ss 4.22, 6.2(1) (grounds 1, 2(a), 3(a))

11. Topic 1A identifies s 6.2(1) and s 4.22 of the EPA Act and cl 6.1 of the Port Stephens Local Environmental Plan 2013 (NSW) (PSLEP). The Conveyancing Act 1919 (NSW) as it pertains to subdivision was also referred to in argument.

Conveyancing Act 1919 (NSW)

12. The Conveyancing Act provides relevantly as follows:

Part 23 Registration

…

Division 3 Plans

195 Definitions

(1) In this Division—

…

plan of subdivision means a plan that shows—

(a) the division of an existing lot into 2 or more new lots, or

(b) the consolidation of 2 or more existing lots and their simultaneous redivision, along new boundaries, into 2 or more new lots, or

(c) the dedication of an existing lot as a public road under section 9 of the Roads Act 1993 or as a public reserve under section 49 of the Local Government Act 1993, or

(d) the setting aside of an existing lot as a drainage reserve under section 49 of the Local Government Act 1993,

whether or not the plan also shows one or more of the matters referred to in paragraph (a), (b) or (c) of the definition of miscellaneous plan, and includes a plan of subdivision for lease purposes (within the meaning of Division 3B or 3C of Part 2) and any other plan that shows the division of land, but does not include a plan of consolidation or a plan of identification.

…

subdivision certificate means a subdivision certificate issued under Part 6 of the Environmental Planning and Assessment Act 1979.

Environmental Planning and Assessment Act 1979(NSW)

13. As at July 2023 the EPA Act stated relevantly as follows:

Part 1 Preliminary

…

1.3 Objects of Act

The objects of this Act are as follows—

…

(c) to promote the orderly and economic use and development of land,

…

1.4 Definitions

(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires—

…

subdivision of land—see Part 6.

…

1.5 Meaning of “development”

(1) For the purposes of this Act, development is any of the following—

(a) the use of land,

(b) the subdivision of land,

(c) the erection of a building,

(d) the carrying out of a work,

(e) the demolition of a building or work,

(f) any other act, matter or thing that may be controlled by an environmental planning instrument.

(2) However, development does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act).

(3) For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1).

…

Part 4 Development assessment and consent

…

Division 4.4 Concept development applications

…

4.22 Concept development applications

(1) For the purposes of this Act, a concept development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications.

(2) In the case of a staged development, the application may set out detailed proposals for the first stage of development.

(3) A development application is not to be treated as a concept development application unless the applicant requests it to be treated as a concept development application.

(4) If consent is granted on the determination of a concept development application, the consent does not authorise the carrying out of development on any part of the site concerned unless—

(a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or

(b) the concept development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.

The terms of a consent granted on the determination of a concept development application are to reflect the operation of this subsection.

(5) The consent authority, when considering under section 4.15 the likely impact of the development the subject of a concept development application, need only consider the likely impact of the concept proposals (and any first stage of development included in the application) and does not need to consider the likely impact of the carrying out of development that may be the subject of subsequent development applications.

…

Part 6 Building and subdivision certification

Division 6.1 Preliminary

6.1 Definitions: Part 6

In this Part—

…

subdivision work means any physical activity authorised to be carried out in connection with a subdivision under the conditions of a development consent for the subdivision of land. For the purposes of this definition, a development consent includes an approval for State significant infrastructure if the regulations under Part 5 apply this Part to subdivision work under such an approval.

6.2 Meaning of “subdivision” of land

(1) For the purposes of this Act, subdivision of land means the division of land into 2 or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected—

(a) by conveyance, transfer or partition, or

(b) by any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition.

(2) Without limiting subsection (1), subdivision of land includes the procuring of the registration in the office of the Registrar-General of—

(a) a plan of subdivision within the meaning of section 195 of the Conveyancing Act 1919, or

(b) a strata plan or a strata plan of subdivision within the meaning of the Strata Schemes Development Act 2015.

(3) However, subdivision of land does not include—

(a) a lease (of any duration) of a building or part of a building, or

(b) the opening of a public road, or the dedication of land as a public road, by the Crown, a statutory body representing the Crown or a council, or

(c) the acquisition of land, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of land by compulsory process, or

(d) a division of land effected by means of a transaction referred to in section 23G of the Conveyancing Act 1919, or

(e) the procuring of the registration in the office of the Registrar-General of—

(i) a plan of consolidation, a plan of identification or a miscellaneous plan within the meaning of section 195 of the Conveyancing Act 1919, or

(ii) a strata plan of consolidation or a building alteration plan within the meaning of the Strata Schemes Development Act 2015.

Division 6.2 Certificates required under this Part

6.3 Work or activity that requires certificate under this Part

(1) A person must not carry out any of the following work or activity without a certificate under this Part that is required by this Part for that work or activity—

…

(b) subdivision work,

…

(d) the subdivision of land,

…6.4 Kinds of certificates under this Part

There are the following kinds of certificates under this Part—

…

(b) subdivision works certificate—a certificate to the effect that subdivision work completed in accordance with specified plans and specifications will comply with the requirements of the regulations.

…

(d) subdivision certificate—a certificate that authorises the registration of a plan of subdivision under Part 23 of the Conveyancing Act 1919…

Port Stephens Local Environmental Plan 2013 (NSW)

14. The PSLEP in force as at 26 April 2023 stated relevantly as follows:

Part 6 Urban release areas

6.1 Arrangements for designated State public infrastructure

(1) The objective of this clause is to require satisfactory arrangements to be made for the provision of designated State public infrastructure before the subdivision of land in an urban release area to satisfy needs that arise from development on the land, but only if the land is developed intensively for urban purposes.

(2) Development consent must not be granted for the subdivision of land in an urban release area if the subdivision would create a lot smaller than the minimum lot size permitted on the land immediately before the land became, or became part of, an urban release area, unless the Director-General has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to that lot.

(3) Subclause (2) does not apply to—

(a) any lot identified in the certificate as a residue lot, or

(b) any lot to be created by a subdivision of land that was the subject of a previous development consent granted in accordance with this clause, or

(c) any lot that is proposed in the development application to be reserved or dedicated for public open space, public roads, public utility undertakings, educational facilities or any other public purpose, or

(d) a subdivision for the purpose only of rectifying an encroachment on any existing lot.

(4) This clause does not apply to land in an urban release area if all or any part of the land is in a special contributions area (as defined by section 7.1 of the Act).

6.2 Public utility infrastructure

(1) Development consent must not be granted for development on land in an urban release area unless the Council is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required.

(2) This clause does not apply to development for the purpose of providing, extending, augmenting, maintaining or repairing any public utility infrastructure.

…

Dictionary

…

designated State public infrastructure means public facilities or services that are provided or financed by the State (or if provided or financed by the private sector, to the extent of any financial or in-kind contribution by the State) of the following kinds—

(a) State and regional roads,

(b) bus interchanges and bus lanes,

(c) land required for regional open space,

(d) land required for social infrastructure and facilities (such as land for schools, hospitals, emergency services and justice purposes).

…

Urban Release Area Map means the Port Stephens Local Environmental Plan 2013 Urban Release Area Map.

…

15. The issue arises of whether the Concept DA was for subdivision as defined in the EPA Act or was based on the intention to subdivide and not therefore an application for subdivision as defined in the EPA Act. Kingshill at [38] identified that subdivision is not specifically sought.

16. Kingshill stated at [70]-[79], [107] and [387]:

Does the application seek subdivision of the land?

[70] The question as to whether subdivision of the land is a component of the application remains in dispute between the parties. The parties do not agree whether the concept proposal effectively subdivides the land into a conservation area and (7) precincts. I resolve this issue forthwith as it informs my merit and jurisdictional assessment of the application.

[71] It was explained by submission of Mr Robertson SC, that the concept proposal does not seek the actual ‘subdivision of land’, because this will be addressed in future development applications, by the registration on title of the CA to benefit Council and the subdivision of residential lots within the precincts. He considers that neither a ‘use’ nor separate occupation of the land is sought by the application. He accepts that the land is ‘defined’ into precincts and a conservation area as part of the concept proposal, however the adaptation of the land for separate occupation or use will occur at the later stage of the future development applications.

[72] Ms Reid, in the alternative, submits that the concept proposal does effectively seek the subdivision of land, being into a CA and (7) precincts with associated infrastructure, as shown in the proposed precinct plan (and consistent with other plans). She considers the subdivision of the land as a fundamental component of the application, despite it not being specifically sought in the application description. The proposed subdivision is consistent within the meaning of s 6.2(1)(b) of the EPA Act.

[73] It is an undisputed fact that the application is made up of two distinct parts: the concept proposal that defines a CA and impact area consisting of (7) precincts, roads and pathways; and Stage 1 works proposed within these defined areas.

[74] Based on my assessment of the application, including consideration of the supporting plans and documents, I determine that the application seeks consent to adapt the land for separate uses. The application relies on an effective subdivision of the land to create these two distinct uses, for conservation and development (footprint).

[75] The parties provided no definition to the ‘use of land’ and the EPA Act is limited in its definition. The EPA Reg and PSLEP also provide no relevant definition. The Merriam-Webster Dictionary describes ‘use’ as being “…to carry out a purpose or action” and “act with regard to”. Land is defined as being “ground or soil of a specified situation, nature, or quality”. Adaption is described as “to make fit (as for a new use) often by modification”.

[76] I am satisfied that the concept proposal, as described in the proposed precinct plan (Figure 1) effectively separates (subdivides) the land, which is adapted (by modifying the land) for two distinct uses. The Stage 1 works adapt the land based on these defined uses, being for the purpose of conservation (Conservation Area) and development footprint (impact area including 7 precincts with roads and paths). These (two) defined uses are physically divided by a fence, road and buffer, the works adapt the land relative to their distinct and separate use. The proposed physical works relating to Stage 1 modify the land consistent with the proposed adaptive use of the land.

[77] This division of the land on the site into distinct parts with two separate (and intended) uses, is a fundamental component of the application. The proposed separation of the land is consistent with the meaning of the ‘subdivision of land’, as described in s 6.2(1)(b) of the EPA Act, below:

6.2 Meaning of “subdivision” of land (cf previous s 4B)

(1) For the purposes of this Act, subdivision of land means the division of land into 2 or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected—

(a) by conveyance, transfer or partition, or

(b) by any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition.

(2) Without limiting subsection (1), subdivision of land includes the procuring of the registration in the office of the Registrar-General of—

(a) a plan of subdivision within the meaning of section 195 of the Conveyancing Act 1919, or

(b) a strata plan or a strata plan of subdivision within the meaning of the Strata Schemes Development Act 2015.

…

(Emphasis added)

[78] The proposed precinct plan, scope of proposed concept approval plan and management plans, that support the application, consistently demonstrate the intent of the application to adapt the land for these distinct and separate uses. I am satisfied that the concept proposal seeks to identify the land intended for different uses, and the Stage 1 works effect and modify the land consistent with these separate uses.

[79] I recognise, as posed by Mr Robertson SC, that the certification of subdivision of the land is sought to form part of future development applications, pursuant to s 6.2(1)(a) and (2) of the EPA Act. However, this is not the only process to effect the subdivision of the land, pursuant to s 6.2(1)(b).

…

[107] The following provisions of the PSLEP are relevant for consideration of the application, being cll 4.1, 5.10, 5.21, 6.1, 6.2, 6.3, 6.5, 6.6, 7.1, 7.2, 7.4, 7.6, 7.8, 7.9 and 7.11. I am satisfied that the following provisions of the PSLEP are addressed:

- Pursuant to cl 4.1, the proposed size of the subdivided areas shown on the proposed precinct plan, construed as a ‘lot’ for the purpose of assessment of this provision are sufficient in size.

Have the relevant requirements for the provision of designated State public infrastructure been sufficiently addressed?

...

[387] As I have already determined the application seeks the subdivision of the land, I am satisfied that cl 6.1 of the PSLEP is engaged in the consideration of the application.

17. The amended statement of facts and contentions filed 24 November 2022 stated relevantly as follows:

B1: Contentions which warrant refusal of the application

Concept Development Application will not result in the orderly and economic use and development of land

1a. The Concept Development Application should be refused as the proposed wholesale clearing of native vegetation and habitat across the development footprint proposed in the concept application will not result in the orderly development of land and is premature.

Particulars

a) The ultimate development footprints, subdivision works and subdivision patterns have not yet been designed.

b) The proposed development footprints are unsatisfactory and impractical because they include steep land, bushfire prone land, ecologically valuable areas and no buffers, require extensive earthworks and do not provide adequate water quality control structures.

c) There is likely to be scope for some vegetation to be retained, including larger species, when the subdivision pattern and subdivision works are designed.

d) If development consent were obtained during the development of the relevant precincts, there would be opportunity for a better environmental and amenity outcome to be achieved.

e) In the absence of a clear indication of the future proposed subdivision patterns and subdivision works, the consent authority could not form an opinion that the site is suitable for the proposed wholesale clearing works.

f) The early wholesale clearing of the Site will not result in the logical manner required by clause 6.3 of the PSLEP.

1b. The overall concept proposal should be refused as the consent authority could not be satisfied on the information included in the Concept Development Application that satisfactory arrangements will be made for the provision of State public infrastructure.

Particulars

(a) Clause 6.1 of the PSLEP applies to the subdivision of land that will form part of the subsequent development applications anticipated by the Concept Development Application.

(b) The Director-General has not certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to the Site.

(c) There is no certainty that the Director-General will issue the requisite certificate under clause 6.1 of the PSLEP.

(d) The Road Works and Drainage Channel Works defined in the SVPA have not yet been authorised under Part 5 of the Act and reviews of environmental factors have not yet been finalised.

(e) There is no obligation under the SVPA to deliver the Road Works and Drainage Channel Works unless all necessary approvals are obtained, including funding approvals and satisfactory determination of a Review of Environmental Factors for the Road Works and the Drainage Channel Works.

(f) The north-south public road is no longer proposed.

(g) In the absence of a satisfactory arrangements certificate or confirmation that the necessary approvals required by the SVPA had been obtained, there is no certainty that the site will be suitable for the development proposed under the concept development application and able to provide safe vehicular access from the urban release area to the Pacific Highway pursuant to cl 6.5 and 6.6 of the PSLEP.

(h) If the SVPA were certain, development consent cannot be granted to the application unless the consent authority is satisfied that the proposed Kings Hill Interchange will have safe access to the Pacific Highway having regard to the flood risk pursuant to cl 6.6 of the PSLEP.

(i) Insufficient details have been provided to assess the risks of isolation during flood events greater than the 5%AEP and up to the Probably Maximum Flood for the Williams River when vehicular access will be unavailable.

18. In answering the issues raised by Topic 1A the parties agreed questions after the substantive hearing:

Question 1 – was the Commissioner correct in finding that:

(i) nominating parts of land for distinct uses;

(ii) physical division of land by fence, road and buffer; or

(iii) carrying out physical works that are consistent with distinct uses of land;

was a “division of land” within the meaning of s 6.2 of the EPA Act?

Question 2 – did the Concept DA propose a “division of land” within the meaning of s 6.2 of the EPA Act because of (i) a conceptual division of the [Site] into a Conservation Area, and precincts; or (ii) the contemplation of a future dedication of a Conservation Area to Council under the Council VPA?

19. Having agreed to the provision of additional questions by the parties after the substantive proceedings, the terms of the questions provided were unhelpfully at times difficult to reconcile with, or expanded on in slightly different terms, the submissions made at the substantive hearing which addressed the detailed drafting in the grounds of review. I will focus on the grounds of appeal primarily and address questions only to the extent that there assist in the resolution of the issues raised.

20. The questions in Topic 1A are set out below as they provide a view/summary of the parties’ cases and no more.

Appellants’ submissions

21. Regarding question 1, the Appellants submitted that the Commissioner erred in finding that the Concept DA was for the subdivision of land within the meaning in s 6.2(1)(b) of the EPA Act. Construed in the context of cl 6.1 of the PSLEP (by inserting the defined term in s 6.2(1) in EPA Act into cl 6.1), a ‘division of land’ does not include any of (i) nominating parts of land for distinct uses, (ii) physical division of land by fence, road and buffer or (iii) carrying out physical works that are consistent with distinct uses of land.

21. Regarding question 2, the Commissioner’s finding that the Concept DA was effectively subdivision at [76] was incorrect. The Concept DA did not propose the creation of new lots and its approval did not authorise the subdivision of land. The conceptual division of land into a CA and the precincts is subject to change including by future DAs and future boundaries of a CA depend on later agreements, so that the proposal is too vague to constitute a division of land.

Panel’s submissions

23. Regarding question 1, the Panel submitted that the Commissioner was correct at [76], [78], [79] in finding that (i), (ii), (iii) (listed under question 1) was a division of land in light of the broad definition of subdivision under s 6.2 of the EPA Act. The Concept DA nominated the physical division of the CA and installation of a perimeter fence from the balance of the proposal, within the Stage 1 works.

24. Regarding question 2, the Concept DA sought development consent for residential subdivision. It proposed the division of land by the physical division of the CA from the rest of the Site by fencing works within the Stage 1 works proposed. The Voluntary Planning Agreement with the Council (Council VPA) proposed by the Appellants proposed the making of a subdivision plan and dedication of the CA to the Council (this is not in the State VPA). The Concept DA proposed the Site be divided into urban development precincts. Each of these three proposals is a division of land within the meaning of s 6.2 of the EPA Act.

25. A discrete question was also identified (question 3) which I will deal with in Topic 1A:

Question 3 – on the assumption that the answer to either question 1 or question 2 is ‘yes’, does the operation of s 4.22(4) of the EPA Act, that prevent the carrying out of subdivision until a further development consent for subdivision is granted, nonetheless mean that the Concept DA could not be for “subdivision of land” within the meaning of s 6.2 of the EPA Act?

26. The Appellants submitted that the operation of s 4.22(4) of the EPA Act means that the Concept DA could not be for the ‘subdivision of land’ within the meaning under s 6.2 of the EPA Act.

27. The Panel submitted that the operation of s 4.22(4) prevents the physical act of carrying out subdivision until a further consent is granted. That fact does not mean that a concept DA does not authorise the subdivision of land, consistent with the decision in NCV Enterprises Pty Ltd v Tweed Shire Council [2024] NSWLEC 14 (NCV Enterprises) at [69]-[72].

Finding on grounds 1, 2(a), 3(a) whether subdivision of land

28. The Appellants allege that the Commissioner misconstrued s 6.2 of the EPA Act by the erroneous application of a provision in a statute to found facts, relying on Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156C. The overall submission made by the Panel in response to the Appellants’ submissions on Topic 1A was that the Commissioner’s finding that the Concept DA was for subdivision was a finding of fact and not appealable.

29. The issue of whether the Concept DA is for subdivision as posed in Kingshill at [70] arose in the Panel’s oral closing submissions for the first time and was briefly responded to by the Appellants in their oral closing submissions in reply. No written submissions were directed to the topic and no explicit contention raising this issue in the context of s 6.2(1) of the EPA Act was identified by the Panel. Consequently the extensive argument heard in this appeal including reference to some ten cases was not presented to the Commissioner. (The contentions referred to compliance with cl 6.1 of the PSLEP.) I mention this to clarify the decision-making context for the Commissioner as a result of how the case was presented. No criticism is made of her summary of the parties’ arguments at [71], [72] or her statements in [73]. At [74] the Commissioner refers to her assessment of the application before her, the description of which earlier in the judgment is not criticised.

30. Consideration of the parties’ submissions requires the statutory construction of provisions in the EPA Act and consideration of the relationship with an environmental planning instrument (EPI) made under that Act.

31. In accordance with well‑established principles legislation must be read as a whole so as to give effect to all sections wherever feasible, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ). The plain meaning of words in their context should be considered, Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297; [1981] HCA 26 at 305 (Gibbs CJ) cited in Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 at [42], Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [25]-[28] (Bell P). General principles related to the interpretation of primary legislation apply to EPIs, Cavanagh v Wollondilly Shire Council (No 2) [2019] NSWLEC 181 at [31] (Cavanagh) citing 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at [45].

32. As part of the context emphasised by the Appellants, to the effect that subdivision is effected through the creation of lots to which title can be obtained, Pt 6 of the EPA Act was referred to. Part 6 specifies in s 6.3(1) work or activity that requires a certificate under this Part, including subdivision work and the subdivision of land. Subdivision work defined in s 6.1 cannot be carried out without a subdivision works certificate. Subdivision of land requires a subdivision certificate which authorises the registration of a plan of subdivision under Pt 23 of the Conveyancing Act. Plan of subdivision is defined under s 195(1) of the Conveyancing Act.

33. As the Appellants identified, the Concept DA is factually and legally complex resulting in the need to consider the application of s 6.2(1) of the EPA Act in circumstances which have not, I surmise, been addressed by the Court in relation to any other concept DA. No similar case has been provided by the parties. As summarised above in the extract from Kingshill at [35] the proposal outlines seven precinct areas, creates a development footprint for future residential subdivision and other development with indicative road access (known as the impact area) and proposes a CA. The proposed work in Stage 1 is to facilitate the establishment of the CA and clearing of the impact area for future development. The description at [37] is the definition of seven precincts and indicative uses within these, an asset protection zone and perimeter roads, definition of an east-west collector road and definition of a CA.

34. As I understand the proposal none of the seven precinct (impact) areas intended to be used for future residential subdivision have a defined boundary as a result of the Concept DA. Extracted above is the plan at [36] described as proposed precinct plan DA-08-C2.00 Revision 4 Figure 1. In other words, precise boundaries of these precincts would be the subject of later DAs for subdivision of the precincts into defined areas which is likely to include individual residential lots. The boundaries of the seven precincts as defined on Figure 1 are intended to be indicative. The CA is also identified on the plan in Figure 1. The CA is the subject of Stage 1 works relating to its establishment. The creation of the CA is pursuant to the Council VPA which was in evidence before the Commissioner. As I understand the Council VPA according to the parties’ submissions, the transfer or dedication of the area the subject of the CA will take place in accordance with the Council VPA after works have been completed on it to the Council’s satisfaction and that is the point at which the final defined boundary of the CA will be fixed. In reply submissions the parties disagreed about how the CA would come into effect with the Appellants submitting that a further DA would be necessary and the Panel submitting it would not be necessary as the Council VPA provides sufficiently for its creation. I do not need to resolve that issue in terms of the issues that arise in this appeal but that such matters are in dispute underlines the complexity of what is in the Concept DA. The Stage 1 works also propose the clearing of the seven precincts (the impact area) where future subdivision would take place in advance of the precise boundaries of these areas being known. Gaining an understanding of just what was proposed in light of the statutory scheme has proved challenging.

35. The Commissioner records the parties’ opposing submissions at [71] and [72]. At [71] she identifies the Appellants’ argument that consent for subdivision was not sought. Her summary at [73] of the Concept DA is not criticised. Her reasoning is set out at [74]-[79]. The Commissioner’s reasoning suggests that she considered the nature of the Concept DA by applying the chapeau of s 6.2(1), and s 6.2(1)(b) of the EPA Act as she averts to in [79]. At [79] she records the submission of the Appellants that the certification of subdivision of the Site pursuant to s 6.2(1)(a) (subdivision by conveyance, transfer or partition), and subs (2) (procuring registration of a plan of subdivision by Registrar-General) would be sought as part of future DAs. As is clear from her express reasoning the Commissioner applied s 6.2(1)(b) to find the Concept DA was for subdivision. Having made that finding in the judgment, from [80] she considers the Concept DA as an application made in reliance on s 4.22.

36. The definition of subdivision in s 6.2(1)(b) of the EPA Act is wide in its terms and in light of the chapeau. The Panel referred to Fremantle Lawyers Pty Ltd v Sarich (2019) 54 WAR 113; [2019] WASCA 48 (Fremantle) which at [162] identifies that subdivision is not a technical legal term.

Context

37. The Appellants submitted that the definition has to be read in context having regard to the evident purpose of streaming subdivision applications so that land development is orderly and economic including the introduction of the definition of subdivision by the Environmental Planning and Assessment Amendment Act 1997 (NSW). Development standards are imposed on subdivisions in EPIs and dedication of works to create or augment public infrastructure are provided for. The carrying out of subdivision being the division of land into two or more parts is effected by registration of the plan of subdivision under s 195G of the Conveyancing Act. The registration of the plan creates the necessary legal and practical title for the purposes of the Real Property Act 1900 (NSW) and the Conveyancing Act. A subdivision certificate issued under Pt 6 of the EPA Act authorises the subdivision s 195C(1)(e) Conveyancing Act. A DA that cannot achieve that outcome is unlikely to be for the carrying out of subdivision. The purpose of the scheme in the EPA Act is a rights-based scheme of title by registration to provide certainty inter alia. Section 6.2 must be construed in that context or any kind of separate occupation use or disposition is subdivision.

38. That there is a scheme implemented across the EPA Act, EPIs made under that Act, the Conveyancing Act and the Real Property Act to enable title in subdivided lots to be created, and to ensure the provision of infrastructure to those lots, can be accepted. That wider context does not obviously inform the statutory construction of s 6.2(1)(b) in the narrow way that the Appellants submit it should be construed.

39. That context was used to submit that the term subdivision of land in cl 6.1 of the PSLEP and in s 6.2 of the EPA Act should be read harmoniously, which requires a narrow construction of s 6.2. This submission reverses the application of s 11 of the Interpretation Act 1987 (NSW) which provides that words in an instrument (such as an LEP) have the same meaning as they have in the Act under which they are made. That provision does not permit the PSLEP definition/term to influence the EPA Act section definition, the effect of the Appellants’ submissions. The submission that the definition of subdivision in cl 6.1 of the PSLEP should be read with s 6.2 of the EPA Act as an argument for limiting the application of the section of the EPA Act is not a permissible approach to statutory construction given that EPIs are subordinate to the EPA Act.

40. Clause 6.1 of the PSLEP was also described as the substantive provision, a description more readily applied to another section of a statute rather than an instrument made under a statute. Kelly v R (2004) 218 CLR 216; [2004] HCA 12 (Kelly) relied on by the Appellants stated that a definition if applied literally and narrowly may result in a meaning that negated the evident policy or purpose of an act, at [103] (McHugh J). The substantive enactment in Kelly was a provision in a criminal statute. It has no application in this matter in considering a definition in a statute read in an instrument. The definition here is sought to be narrowed by the Appellants, which is not supported by Kelly.

41. Section 1.4 Definitions defines subdivision of land by referring to Pt 6, ‘except in so far as the context of subject-matter otherwise indicates or requires’. The Appellants have not identified any relevant context.

42. No contravention of a principle in Kelly arises here. The statutory definition aids in the construction of s 6.2(1) in the EPA Act and should not be narrowed for the purposes of reading the PSLEP, which is directed to the creation of lots.

Does s 4.22 inform construction of s 6.2? (question 3)

43. The Appellants asserted that the Commissioner misconstrued s 6.2(1), which defines subdivision of land, given the application of s 4.22 which provides for concept DAs. In the paragraphs of Kingshill set out above no express reference was made to s 4.22 by the Commissioner when she considered the application of s 6.2(1). The Commissioner was aware that she was considering a concept DA describing its components earlier in the judgment.

44. Does s 4.22 inform the construction and application of s 6.2 which the Appellants’ submissions assert? The Appellants described the Concept DA as reflecting an intention to subdivide land in the future, as provided for under s 4.22 because subs (4) specifies that the carrying out of development on any part of a site is not permitted unless development consent is later obtained. A concept DA may seek consent for and be granted for the first stage of development.

45. As the Panel submitted a concept DA for subdivision can be made. That an application is for a concept does not prevent s 6.2(1) applying.

46. In terms of statutory construction principles, all sections of a statute should be given work to do, Pearce and Geddes, Statutory Interpretation in Australia (10^th ed, 2024) at 159, which principle supports the Panel’s approach. NCV Enterprises is also instructive in emphasising that a concept DA is for development as defined in the EPA Act which will inter alia determine the parameters for subsequent DAs, see [43]-[49], [69].

Use of land not subdivision

47. The Appellants submitted as subdivision is not a use of land as defined, the use of land cannot be used to find that subdivision is sought which is what the Commissioner’s reasoning discloses. The Concept DA did not seek consent for the use of land, and the approval of a subdivision does not impliedly grant consent to the subdivided lots being put to any use.

48. Development includes ‘the use of land’, ‘the subdivision of land’, ‘the erection of a building’ and ‘the carrying out of a work’, s 1.5(1)(a), (b), (c) and (d) of the EPA Act. Subdivision is not the use of land; and the approval of a subdivision does not impliedly grant consent to the subdivided lots being put to any use, Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 48 ALJR 448, Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59 at [42] (McHugh ACJ, Hayne and Heydon JJ), Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [28] approved by Broker Pty Ltd v Shoalhaven City Council (2008) 164 LGERA 161; [2008] NSWCA 311 at [87] (Campbell JA with Handley AJA agreeing). This is relevant because the Commissioner confused the carrying out of the rehabilitation work in the CA and the clearing work in the development areas (on hold until a subdivision consent had been granted) with subdivision. Conflating use with subdivision, and finding that one was indicative of the other, was a fundamental legal flaw in her reasoning process.

49. All the cases relied on by the Appellants can be accepted but I do not accept the criticism of the Commissioner’s reasoning as it unreasonably focusses on part of the reasoning, which must be considered as a whole. I accept below the Panel’s submission that the Commissioner’s reasoning at [73]-[78] considered as a whole is applying the chapeau of s 6.2(1) which refers to ‘the division of land into 2 or more parts that, after division, would be obviously adapted for separate … use …’ together with the broad definition of s 6.2(1)(b). The Commissioner addressed the whole of the chapeau, which refers to use of land in that context. Division is undefined, and use of land is limited in its definition as the Commissioner identified at [75].

50. At [79] the Commissioner recognised that the Appellants intended to apply in the future for the appropriate certificates needed to carry out subdivision. As she identified that is not the only means by which subdivision is effected.

‘Effective subdivision’

51. The Appellants submitted that works would adapt land for different uses which impermissibly construes the Concept DA in light of the Stage 1 works. The works were considered by the Commissioner to subdivide the Site by rendering the CA and the development precincts available for separate occupation, use or disposition.

52. The Concept DA did not seek the doing of any of the species of development set out in s 1.5(1) (use of land, subdivision of land, erection of a building, carrying out of a work) as it simply sets out the concept proposals for development. If approved, separate development consent for subdivision (and other development) will be required by virtue of s 4.22(4).

53. As the Concept DA does not cause any action to bring a subdivision into effect in a legal sense (which I understand to mean creating a title to a lot with a defined boundary) it cannot be subdivision. This was reflected in submissions that the Concept DA did not render land into divisions which were obviously adapted for separate occupation, use or disposition. Mere intention to subdivide is insufficient if no overt act is done to divide the land, Re Transfer to Palmer (1903) 23 NZLR 1013 at 1020, Re Nelson and Tammer’s Contract [1952] VLR 391 (Nelson) at 394 cited in Fremantle at [167].

54. The relevance of this submission to the construction of s 6.2(1) is not apparent as it does not address the wording in subs (1)(b). Relying on older authorities which address different statutory schemes provides no assistance in the statutory construction task.

55. According to the Commissioner at [78] the material before her as specified in that paragraph demonstrated an ‘intent of the application to adapt the land for distinct and separate uses’, distinguishing between CA and the development footprint being the impact area of seven precincts with roads and paths identified. The proposed physical works in Stage 1 modify the Site in a manner consistent with the proposed adaptive use of the Site. The Appellants submitted the Commissioner’s use of the word intent demonstrated that the Concept DA was not for subdivision.

56. The criticism is made that the Commissioner confused the carrying out of the rehabilitation work in the CA and the clearing work in the development areas, which must be on hold until a subdivision consent has been granted given that this was a concept DA, as being subdivision. That is not an accurate characterisation of the Commissioner’s reasoning in that she was precisely addressing the text of s 6.2(1) which is broadly drafted and refers to the division of land. The Commissioner found what was before her if approval was granted, would be divided land adapted for separate occupation, use or disposition, which she considered was reflected in the nature of the application before her. That application included arrangements for the CA, where rehabilitation work was to be undertaken as part of the approval sought in the Concept DA, and separately defined an impact area.

51. Reference by the Commissioner to ‘effective’ subdivision, meaning in effect not form, is according to the Appellants contrary to Young v Parramatta City Council (2006) 144 LGERA 193; [2006] NSWLEC 116 (Young), Monnock v Pittwater Council (2003) 127 LGERA 66; [2003] NSWLEC 151 (Monnock). Young was an appeal from a commissioner arguing that the reasons for decision effected a subdivision of land. The Commissioner used the expression ‘de facto subdivision’ in the context of a DA which did not seek consent to subdivide. This was found to have been used as a convenient shorthand description only and, unsurprisingly, did not effect the subdivision of land. Young provides no assistance to the Appellants in this entirely different case. Similarly Monnock in holding that company title share transfers did not comprise subdivision as then defined in s 4B, in similar terms to s 6.2, also has no application. Monnock is relied on to submit that cl 6.1 of the PSLEP must be read down after insertion of the definition in s 6.2. That submission is unclear and in any event is not reflective of what occurred in Monnock on the particular facts considered. Neither case supports a submission that using the word ‘effective’ in the context of considering the application of s 6.2 shows an absence of legal reasoning.

52. Further as the Panel submitted that is an impermissible criticism of a single word used appropriately in the context before the Commissioner.

Floodgates?

59. According to the Appellants, if this Concept DA is found to be for subdivision then many large-scale developments incorporating multiple land uses divided by fences would almost automatically constitute a subdivision of land even if there was no (overt) division citing Fremantle at [170], [300]. The Appellants chose to put forward the Concept DA described as being for residential subdivision with various components which the Commissioner referred to at [76]. As the Panel identified it is a combination of matters that have resulted in the Commissioner drawing the conclusions that she did. Part of the proposal was the entry into the Council VPA as a condition of approval which provided for the establishment of a CA, carrying out of works in that area the subject of the Stage 1 development sought and the transfer of land comprising the CA following the completion of the conservation works. The transfer of land can only occur effectively if boundaries are identified. The Commissioner’s reasoning relied on several matters not just that fencing would be used to differentiate different areas of land.

60. That the Concept DA does not present as a more orthodox subdivision proposal whereby precise boundaries are specified for example, is a reflection of the unusual nature of the Concept DA for a large, urban release area. The Commissioner had to consider what the Appellants chose to present to the Court in light of the definition she was called on to apply by virtue of the parties’ cases.

Separate use or occupation cannot be division of land

61. The Commissioner’s reasoning was also criticised by the Appellants because separate occupation or use was submitted to be a consequence of division not a cause of it. Use of land does not effect subdivision, consistent with Deniliquin Municipal Council v Jones (1929) 9 LGR (NSW) 96 holding that subdivision requires a ‘division of title … and is not affected by any demarcation of physical features’ at 98 according to the Appellants. That older authority is simply not addressing the statutory provisions I am considering. The Commissioner was said to have impermissibly relied on the demarcation between the CA and the remainder of the Site representing physical actions as the basis for her conclusion. Reliance was placed on Permanent Trustee Co of NSW Ltd v Council of Municipal of Campbelltown (1960) 105 CLR 401; [1960] HCA 62 per Kitto J at 410 finding that subdivision was ‘not the result of physical actions, but is the result of transactions dividing up land in point of title’ considering s 4 of the Local Government Act 1919 (NSW) which had a definition of subdivision relatively similar to but not identical to s 6.2(1) (reference to plan is missing from s 4(b)). That finding appears relevant to the consideration of s 6.2(1)(a) but not s 6.2(1)(b) which is broadly drafted. Similar observations apply to the Appellants’ reliance on Nelson that a division into parts implies there must be some definition of boundaries. The Appellants submitted that the absence of any such definition meaning, I infer, the creation of boundaries reinforces the unlikelihood that a de facto subdivision of land would be effected by carrying out work. On the assumption that this is an accurate description of the Commissioner’s reasoning, given the broad language of s 6.2(1)(b) the opposite conclusion should be drawn. The quote of Windeyer J in Bisits v Registrar General [2002] NSWSC 543 at [18] relied on by the Appellants is also unhelpful and irrelevant in that it is addressing definitions of ‘subdivision plan’ and ‘existing lot’. I am not considering such terms. These instruments do not form part of the Concept DA.

62. In any event this criticism does not accurately reflect the Commissioner’s reasoning. She recognised that a plan which will render different parts of the Site available for separate use or occupation would be granted as part of the Concept DA if approved. That satisfies the broad definition of subdivision. That she also notes that the Stage 1 works will involve work in the CA does not undermine her finding. I do not consider her reasoning that subdivision will take place is relying on the use of land at this stage of the process, rather the Commissioner is applying the definition that the plan if approved will render different parts of the Site available for separate use. Her statement that there will be use of land and that the Stage 1 works will facilitate that is a straightforward observation in light of the chapeau to s 6.2(1).

More context in s 6.2

63. The Appellants referred to s 6.2(1) which lists transactions that are taken to divide land. Each example is an aspect of titling and boundary definition. None of them refer to work or use or physical dimensions as effecting a division of land. Although the examples are not exhaustive – ‘may (but need not) be effected’ – the list is useful as indicia of the subject matter of division. The failure to include in the list the use of land or other physical parameters as effecting a division is telling, because ‘use’ is deployed in the same paragraph to describe one of the outcomes of division. It could readily have been included in the list but was not.

64. Section 6.2(2) includes and s 6.2(3) excludes certain transactions within subdivision. The transactions excluded from subdivision suggest that they would otherwise have been included. Each transaction involves some question of title or boundary definition. The transactions that are in s 23G of the Conveyancing Act are a comprehensive list of statutory, judicial and testamentary actions that might cause division of land, but are excluded. Each concerns title, boundaries or both. None involves land use or physical dimensions.

65. In s 6.2(1) division may be effected as set out in (a) and (b). These mechanisms are not exhaustive ‘(but need not)’. The italicisation of ‘plan’ in s 6.2(1)(b) at [77] of Kingshill suggests that was the basis that the Commissioner considered a division of the Site was effected.

No new lots

66. The Appellants submitted, correctly, that the Concept DA does not propose the creation of lots. Nor does it authorise the registration of a plan of subdivision as defined in s 195(1) of the Conveyancing Act. No subdivision certificate as defined in Pt 6 of the EPA Act could be issued for what is approved by the Concept DA. All that can be accepted, but it does not address the broad wording of s 6.2(1)(b). As the Panel submitted the Concept DA was for subdivision as defined in s 6.2(1)(b) and not for ‘subdivision works’, which much of the context relied on by the Appellants related to.

Conclusion on Topic 1A

67. I have made findings above in relation to most of the arguments considered in largely not accepting the Appellants’ arguments. By way of overall conclusion, the numerous submissions of the Appellants were attempts to narrow the wording of s 6.2(1)(b) by relying heavily on what was described as context for the making of arrangements to achieve subdivision with references to the EPA Act and the Conveyancing Act inter alia.

68. The ordinary meaning of the words of s 6.2(1) were applied by the Commissioner to the Concept DA before her. Division is not defined in the EPA Act. Non-exhaustive means of effecting division include in subs (1)(a) conveyance, transfer or partition. The means of creating division in subs (1)(b) are wide, to include any agreement, dealing, plan or instrument. The Commissioner italicised ‘plan’ at [77]. That the Concept DA is made under s 4.22 which includes subs (4) does not prevent the Concept DA being for subdivision under s 6.2(1).

69. The Commissioner has found that the Concept DA meets the broad statutory definition of subdivision in s 6.2(1)(b) in light of the chapeau of s 6.2. No statutory construction basis exists to confine the plain meaning of the words in the chapeau and s 6.2(1). No legal error by the Commissioner has been identified in the appeal grounds 1, 2(a) or 3(a). Consequently I would answer the additional questions posed by the parties in accordance with the Panel’s response.

1B. If Concept DA is for subdivision, is cl 6.1(2) of PSLEP engaged? (grounds 2(b)-(d))

70. The focus of these alternative grounds is the application of cl 6.1 of the PSLEP to the Concept DA. As set out above:

2. The Commissioner erred in law by finding that cl. 6.1 of the Port Stephens Local Environmental Plan 2013 (the LEP) was engaged and applicable [387], and therefore that consent could not be granted without the Director General of Planning providing a Satisfactory Arrangements Certificate (Certificate) as purportedly required by cl. 6.1 of the LEP [395], [397] by –

…

b. [Alternatively] on the assumption that the Concept DA was for the subdivision of land, finding that cl 6.1(2) of the LEP was engaged [387] when cl. 6.1(2) of the LEP was concerned with, and only with, a subdivision that “would create a lot”, and when the Concept DA did not propose or seek any consent for creation of a lot;

c. misconstruing cl. 6.1(2) of the LEP by finding that it posed alternative tests for its application and it was sufficient if the application satisfied the second test that the land was part of an urban release area [393];

d. misconstruing or misapplying cl 6.1(2) of the LEP, by failing to find that the Concept DA would create a lot smaller than the minimum lot size required by cl. 6.1(2), despite the Commissioner found that there was no minimum lot size applicable to the site at that time [391].

71. The Commissioner held at [391]-[394]:

[391] Clause 13 of the PSLEP 2000 does not specify a minimum lot size for land zoned 1(a). The parties agree that there was no minimum lot size applicable to the site, prior to the creation of the KHURA.

[392] The parties did not dispute that cl 6.1 of the PSLEP would be engaged upon the subdivision of the land as part of the KHURA. However, Mr Robertson SC went further to state in his written submission filed on 14 April 2023 at [28], that cl 6.1(2) of the PSLEP does not apply to the application, irrespective of whether subdivision was sought, because there was no minimum lot size provision that applied to the site as described in the PSLEP 2000.

[393] Clause 6.1(2) of the PSLEP has two discrete tests to requiring a SAC [Satisfactory Arrangement Certificate], and I find that the lack of a provision establishing a minimum lot size in the PSLEP 2000, does not negate the requirement for a SAC in the development on the site as part of the KHURA. It is the second test of cl 6.1(2) that is relevant to the application, being that the land “… became part of, an urban release area”. I consider the intent of cl 6.1 of the PSLEP is to ensure that for future intensive development on lands, within a designated urban release area, such as the KHURA, the land is capable of being serviced by appropriate and sufficient State public infrastructure to meet the needs of future residents.

[394] It is an accepted fact that the land became part of an urban release area and that the application is not supported by a SAC, issued by the D-G. Based on my assessment of the application, a SAC is necessary to support the application, to satisfy the requirements of cl 6.1(2) of the PSLEP.

72. The questions posed by the parties which they considered relevant to grounds 2(b)-(d) are:

Question 4 – on the assumptions that the answers to either of questions 1 and 2 is ‘yes’ and the answer to question 3 is ‘no’, (assuming Concept DA is for subdivision) is clause 6.1(2) of the LEP engaged when the Concept DA does not propose to “create a lot”?

Question 5 – assuming that the Concept DA otherwise is a “subdivision that would create a lot”, does the Concept DA create lots that are smaller than the minimum lot size permitted on the [Site] immediately before the [Site] became, or became part of, an urban release area?

Question 6 – Is the Second Respondent’s argument that there was a ‘minimum lot size’ of nil, because cl. 12 of LEP 2000 prohibited subdivision, correct?

73. I have not found these additional questions particularly helpful in resolving the issues identified in the grounds as they restate them somewhat unhelpfully in partially different terms so that they double up or add to the issues to be resolved. I will focus on the grounds set out above. The issues in this ground must be considered in the context of how cl 6.1 was presented before the Commissioner. The Panel in particular sought to put a submission different to what was agreed before the Commissioner, as extracted above at [391], that there was no minimum lot size provision that applied to the Site under Port Stephens Local Environmental Plan 2000 (PSLEP 2000).

Appellants’ submissions

74. Regarding question 4, as no lots were created by the Concept DA cl 6.1(2) was not engaged so that the Commissioner’s finding to the contrary at [393] was wrong in law. Clause 6.1(2) of the PSLEP is only engaged when the Concept DA provides for the creation of a lot and the Concept DA does not.

75. Regarding question 5, the Commissioner found that there was no minimum lot size before the Site became an urban release area, hence the answer is no.

76. Regarding question 6, there was no minimum lot size of nil because of cl 12 of PSLEP 2000. Clause 12(1)(b) permitted subdivision of land to be used for any permissible land use purpose, other than dwellings or dual occupancy housing.

Panel’s submissions

77. The Panel accepted that the Commissioner was in error in her construction of cl 6.1(2) of the PSLEP in holding at [393] that the clause proposed a two-fold or alternate test in order to determine whether a proposed subdivision is caught by the clause. The Panel submitted that such an error would not have led to a different result citing Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54, Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 or was not vitiating.

78. Regarding question 4, properly construed the Concept DA would authorise subdivision of land that ‘would’ create a lot smaller than that prescribed. That is consistent with s 4.24(2) which requires future development consents not be inconsistent with the concept DA.

79. In response to questions 5 and 6, the Panel made alternative submissions based on the application of the former PSLEP 2000 arguing that transitional provisions applied which did mean that there was a minimum lot size reflecting the former rural zoning of the Site as 1(a) Rural Agriculture zone. There is no definition of minimum lot size in the former PSLEP 2000. Clause 12 prohibited subdivision except in specified circumstances in the relevant zone. The effect of cl 12 is that for the purpose of cl 6.1(2) of the PSLEP subdivision of the Site into precincts and a CA will effect subdivision lots smaller than the existing two lots in which subdivision was prohibited. Consequently cl 6.1 was engaged as there was no lot size permitted that would create a lot smaller than the minimum of nil.

Finding on Topic 1B

80. Clause 6.1 in Pt 6 Urban release areas concerns arrangements for the provision of designated State public infrastructure. The agreement of the parties before the Commissioner recorded at [391] was that no minimum lot size (for land formerly zoned 1(a) Rural Agriculture) existed under the PSLEP 2000, essentially one test of whether the subclause applied. Clause 6.1(2) could not therefore apply on the basis of the minimum lot size control. The Commissioner at [393] identified two discrete tests. She considered a second test was that the Site became part of an urban release area. As the Panel accepted there is no two-stage test required by the clause and that aspect of the Commissioner’s reasoning at [393] cannot be accepted as correct in that it does not reflect the drafting of the clause. On that basis alone the Commissioner’s conclusion that cl 6.1 of the PSLEP applied was incorrect (ground 2(c) above).

81. In this appeal the Appellants also challenged (ground 2(b)) the application of cl 6.1 because no lots were sought to be created by the Concept DA. Subclause 6.1(1) identifies the objective of the clause. The key provision in determining whether the clause applies is subcl 6.1(2).

82. The Appellants’ arguments in this appeal was to the effect that subdivision was prohibited on land with that zoning so that there could be no minimum lot size, essentially as there could be no lots. This matter I was informed was agreed before the Commissioner, at [392] she refers to submissions by the Appellants to that effect. The Panel sought to make an argument in this appeal that does not appear to have been run before the Commissioner to the effect that the minimum lot size should be considered as nil (in contrast to there being no lots permitted, a different legal consequence). No leave was sought for this argument to be considered on appeal. I do not consider it is appropriate to allow that to occur.

83. The parties made conflicting submissions on whether the Concept DA created lots. I agree with the Appellants that no lot is proposed by the Concept DA. That the divisions of land created fulfil the definition of subdivision in s 6.2(1) does not render these areas as lots for the purposes of the EPA Act and the Conveyancing Act. For example, those areas would not satisfy the creation of a plan of subdivision which refers to lots in the various sub-categories of the definition in s 195(1) of the Conveyancing Act.

84. I consider that grounds 2(b) and (d) have been established by the Appellants. It follows that I agree with the Appellants that cl 6.1(2) is not engaged by the Concept DA as no lots are created by the Concept DA. Consequently cl 6.1(2) is not applicable to the Concept DA.

85. Whether the incorrect finding of the Commissioner was a vitiating error in this appeal must be determined in light of the outcome of the other grounds of appeal later in this judgment.

1C. Stormwater Channel not designated public infrastructure (ground 3(b))

86. The ground of appeal is:

3. The Commissioner erred in law by finding the appellants had unreasonably deferred consideration of “designated State public infrastructure” to future applications [396]–[397] and particularly that the location and approval of proposed Stormwater Channel was not sufficiently certain to address the requirements of, and enable issue of the Certificate under, cl. 6.1 of the LEP [414], [420], [421], [423] and [424] by –

…

b. in finding that the Stormwater Channel was “designated State public infrastructure” as defined, whereas the definition in the Dictionary to the LEP did not include stormwater works [421].

143. No legal error is disclosed in ground 8.

Finding on ground 9(a)(b)(c)

149. Ground 9 alleges three errors of law in applying cl 7.9 of the PSLEP.

150. Regarding ground 9(a) referencing wetland 802, the Commissioner identified that the experts agreed that there are likely future stormwater related works associated with the Newline Road interchange located in proximity to wetland 802, engaging s 2.8 of the SEPP Resilience, at [341]. At [362] the Commissioner identified relevant considerations for the Court to assess likelihood of adverse environmental impacts to wetlands 802, 803 and 804 in light of cl 7.9 of the PSLEP and s 2.8 of the SEPP Resilience. The Commissioner identified various shortcomings in relation to the assessment of the proximity area of wetlands 802 and 803. At [351] the Commissioner finds that s 2.7 of the SEPP Resilience and cl 7.9 of the PSLEP are not engaged for wetlands 802 and 804. The basis for the error alleged in ground 9(a) does not exist, there being no implicit finding that cl 7.9 applied to wetland 802. The ground refers to [362], [365], [367]-[372]. The judgment must be read as a whole and focussing on later paragraphs read in isolation overlooks her explicit earlier finding at [351].

151. Ground 9(b) is directed to wetland 803 according to the Appellants’ oral submissions. It alleges an error of law by the Commissioner applying cl 7.9(2), (3) of the PSLEP to parts of the development by her conclusion at [353] that wetland 803 should be considered to extend to the east thereby engaging cl 7.9. As the Panel submitted the Commissioner’s reasoning in relation to impacts must be considered as a whole and fairly. At [345]-[350] the Commissioner considers the differences in expert opinion about the mapped extent of wetlands 802, 803 and 804 as described in the SEPP Resilience and PSLEP which instruments apply different boundaries. The Commissioner draws conclusions at [350] that the boundaries of wetlands 802 and 804 are generally accurate. She considers the SEPP Resilience mapped wetland 803 should be extended for the reasons based on expert evidence concerning hydraulic effects given at [352]-[353] which extends the wetland. In the last sentence of [353] the Commissioner concludes that there are likely to be future works (the subject of separate DAs) which will extend into wetland 803. At [354] the Commissioner identifies that the Concept DA and likely future works require the assessment of the hydraulic and hydrogeologic regime for the purposes of s 2.8 of the SEPP Resilience, and also cl 7.9(3) of the PSLEP. At [355]-[357], [363]-[370] her assessment is based on consideration of the Concept DA as required by s 4.15(1) and s 4.22(5) of the EPA Act, as referred to expressly at [354].

152. The basis for ground 9(b) is that the area of wetland 803 as extended is therefore beyond where it is represented on the map to which cl 7.9 refers so that her conclusion that cl 7.9 was engaged was a legal error. It is not apparent that in determining the extent of wetland 803 the Commissioner was in legal error in extending it beyond the map referred to in the PSLEP. In any event the Commissioner was also considering the extent of wetland areas the subject of the SEPP Resilience and no criticism is made of this aspect of her decision. Separate to whether either of these instruments applied the Commissioner had to consider the potential impacts on the identified wetlands the extent of which was the subject of expert evidence and was a matter she had to determine in order to undertake the assessment required. Read fairly as a whole her analysis does not disclose an error of law in the terms of ground 9(b). If I am wrong in that conclusion such an error was not vitiating in the overall context of the issues requiring determination.

153. Regarding ground 9(c), numerous references are made to cl 7.9 in the judgment. The subject of criticism in ground 9(c) said to result in legal error is because the Commissioner failed to apply subcl (4). The Commissioner does refer to subcl 7.9(4) at [370] and can be assumed to be aware of it. There is no requirement that every subclause of an applicable provision must be cited and a conclusion expressly drawn in a judgment. Once again the Commissioner’s reasoning must be read fairly and as a whole. Her reasoning and conclusions about the impacts of the Concept DA meant that she did not have to explicitly consider subcl 7.9(4) which is directed to matters that a consent authority must be satisfied about before development consent can be granted. The Commissioner was not satisfied that development consent ought be granted and was not required to identify matters she was dissatisfied with expressly in the context of subcl 7.9(4).

154. No errors of law are identified in ground 9.

Topic 6: Uncertainty and Grampian conditions (grounds 10, 11, 12)

155. The Commissioner identified at [425] that the Appellants proposed two conditions which addressed ‘the uncertainty relating to the alignment of the channel’ (condition 12) and a deferred commencement (condition 2) described as Grampian style conditions by the Panel, at [426].

156. Kingshill states at [419]-[428]:

[419] The State VPA provides funding and some responsibility arrangements for the design of the channel, although not responsibility for its construction, unlike for the PH interchange, which has more certainty in its design and construction. Significantly, the preferred channel design and location are still the subject of uncertain environmental outcomes, that could lead to a change in its alignment, thereby impacting the definition of the precincts described in the concept proposal. A modification of the concept proposal is possible if the channel alignment was substantially changed. This creates uncertainty.

[420] It is agreed by the parties that the development of the KHURA cannot proceed without the designated State public infrastructure as described in the State VPA, including the channel.

[421] I am not satisfied the D-G would issue a SAC for development of the site, consistent with the concept proposal, until there is reasonable certainty to the location and design of the channel. I find that the objective of cl 6.1(2) of the PSLEP, to provide satisfactory arrangements for the provision of designated State public infrastructure prior to subdivision, is not satisfied. The design and location of the channel are not sufficiently certain and satisfactory arrangements have not been provided prior to the subdivision (and intensification) of the land, as relied on by the application. Based on the draft and contentious design of the channel, there remains uncertainty that a SAC would be issued by the D-G to satisfy cl 6.1(2).

[422] The channel alignment in its preferred location is a fundamental component of the conceptual proposal and application. The boundaries that define the precincts and CA rely on the channel alignment and indicative stormwater management. A change in the channel alignment, specifically moving further onto the site, could require precinct boundary changes and reconfiguration of the internal stormwater services on the site. This could also result in a deficit of developable land available for future residential/commercial use in the eastern precincts, affecting the lot yield of the KHURA.

[423] Due to this assessed uncertainty in the location of the channel, it is unreasonable for the concept proposal and application to rely on the channel in its preferred alignment. The concept proposal seeks to establish the development footprint that is potentially unable to function for the purpose of stormwater management. Clause 6.1(1) of the PSLEP is not satisfied.

[424] The basis for my consideration above, is that the application seeks the subdivision of the land, as previously determined. If I am wrong on this, I would also not be satisfied that satisfactory arrangements for designated State public infrastructure could be made prior to the (future) residential subdivision of the land as part of the KHURA, based on the draft nature of the channel design and ecological concerns raised by HWC. Clause 6.1 of the PSLEP is not satisfied on this basis.

[425] The applicants posed conditions attached to a consent to address the uncertainty relating to the alignment of the channel, Condition 12 (Exhibit L) and deferred commencement Condition 2 (Exhibit 6), described below:

“[12] A subdivision works certificate that would involve the creation of residential lots must not be issued until the date that is 9 months prior to any scheduled date for the practical completion of the “Road Works” as notified by TfNSW as referred to in the Voluntary Planning Agreement between the Minister for Planning and Public Spaces, Roads and Maritime Services, Kingshill Development No 1 Pty Ltd and Kingshill Development No 2 Pty Ltd (State VPA).”

“[2] Evidence of an approval pursuant to Part 5 of the Environmental Planning and Assessment Act 1979, or other relevant authority, for the construction of the Kings Hill Stormwater Channel described generally in the draft “Kings Hill Stormwater Channel, Review of Environmental Factors” prepared by Arcadis for the Roads and Maritime Services dated September 2019 shall be submitted to the Council...”

[426] This approach to address uncertainty was described by Ms Reid as being a ‘Grampian’ style condition, as explained by Preston CJ in Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (2021) 252 LGERA 221; [2021] NSWLEC 110 at [150] …

[427] Whilst I accept that the design/construction of the channel (and PH interchange) is beyond the control of the applicants, the degree of uncertainty as to the location and ultimate design of the channel being built in a timely manner, together with the unassessed potential for environmental impact is such that a consent to the application cannot rely on the condition/s posed by the applicants. This approach is consistent with that adopted by Justices Priestley, Clarke and Meagher in Mison v Randwick Municipal Council (1991) 23 NSWLR 734, whom held that a condition of consent cannot have the effect of significantly altering the development that consent is granted.

[428] I consider that there is an unresolved possibility that the channel alignment could be relocated within the site, and that this would result in a significant change to the shape and size of the eastern precincts, that could also impact the shape of the CA boundary. Such a change to precinct boundaries would likely require a modification of the concept proposal and proposed precinct plan (Figure 1), which although is legally feasible, is not a sound basis on which to grant consent to the application.

157. The Grampian conditions offered by the Appellants (set out at [425]), were:

1. The first conditioned the subdivision works certificate upon practical completion of road works as referred to in the State VPA.

2. The second required evidence of an approval issued pursuant to Pt 5 of the EPA Act for the construction of the Stormwater Channel.

158. The three grounds of appeal state:

10. The Commissioner erred in law by finding that the power to modify the consent to make substantial changes to the location of the drainage channel made the proposal uncertain [419], without appreciating that no modification could be made if the consent authority considered that it was not substantially the same development.

11. The Commissioner erred in law by failing to address the Concept DA, which only proposed the stormwater channel in one location on the eastern side of the Pacific Highway. Instead the Commissioner found that the Concept DA was uncertain, because it did not assess the impact of constructing the channel on the western side of the Pacific Highway in the subject land, when no such alternative location was proposed [419]-[423].

12. The Commissioner erred in law by finding that her concept of uncertainty was supported by Mison v. Randwick Municipal Council, whereas no condition had been proposed that would have the effect of significantly altering the development; alternatively the Commissioner misunderstood the legal effect of the Grampian conditions proposed by the Appellants [425]‑[427].

Appellants’ submissions

159. The Appellants offered a Grampian condition such that any development could not relevantly occur without approval of the Stormwater Channel as described in the draft REF. This was to address the spectre of uncertainty that the Panel put to the Court. The Commissioner found at [419] that if there was a substantial change to the location or design of the Stormwater Channel a modification of the Concept DA was possible. This is uncontroversial.

160. However the Commissioner went on to say that the possibility of modification ‘creates uncertainty’. This finding of uncertainty was then relied upon at [423] in the Commissioner’s merit evaluation and found to be ‘unreasonable’. At [427] the uncertainty was not considered to be sufficiently addressed by the proposed Grampian conditions because it was seen to offend a principle stated in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (Mison).

161. Several errors on questions of law arise in this reasoning. The fact that there is a power to modify a consent later cannot rationally mean that the development the subject of the consent is uncertain. This is because approved development is defined, and confined, by the terms of the grant of consent. Otherwise, the power to modify a consent (or development) would make all consents uncertain. An institutional characteristic of the scheme for development approval cannot be converted into a defect that afflicts a grant of consent. Uncertainty in this context relevantly means that the consent itself is expressed in such a way that there is the possibility of a significantly different development, Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 (Kindimindi) at [28] (Basten JA with Handley JA and Hunt AJA agreeing).

162. The Commissioner however considered that the fact that approved development may be later changed itself leads to uncertainty. That is an uncertainty of the ultimate result of the development carried out. But this cannot be uncertainty that is relevant to environmental assessment of a proposal.

163. In postulating uncertainty in this way, the Commissioner misdirected herself by taking into account an irrelevant consideration, namely, that the possibility of change was a relevant uncertainty. The Commissioner also failed to consider that no such modification could occur unless the consent authority was satisfied that the modified development was substantially the same as originally approved, cf ground 10.

164. The Commissioner also failed to address the Concept DA as proposed (which only contemplated a Stormwater Channel on the eastern side of the Pacific Highway). The Concept DA did not conceive of or propose alternative locations for the Stormwater Channel.

165. The reference at [427] to Mison discloses a patent misunderstanding of the effect of the Grampian condition. It did no more than condition the carrying out of the proposed development on the approval of the Stormwater Channel in accordance with the draft REF. Such a condition involved no possibility of significantly altering the approved development. Rather, if the condition was not satisfied, the only outcome would be that the approved development could not be carried out.

166. The Panel correctly accepted in their submissions that the Commissioner was required to assess the likely impacts of the proposed development. The Stormwater Channel was not part of the proposed development but assumed its construction on the eastern side of the Pacific Motorway. The uncertainty identified by the Commissioner was with respect to location of the Stormwater Channel.

167. However, that could not be a relevant uncertainty in relation to the Concept DA for the reasons submitted at above in [161]-[165]. The Panel has not submitted otherwise. The Panel submitted the Commissioner considered that there was uncertainty that could be achieved having regard to the response from HWC (see Topic 2) and that a condition requiring approval of the Stormwater Channel in an undisclosed location could not be drafted in a certain matter in the absence of assessment of the impacts. This is not what the Commissioner found, Kingshill at [427].

Finding on Topic 6

168. These three grounds of appeal consider the proposal for two Grampian conditions made by the Appellants in relation to the location of the Stormwater Channel. They were considered at [425]-[428] in Kingshill as part of the Commissioner’s consideration of the Stormwater Channel. Grounds 10 and 12 both refer to alleged errors in the Commissioner’s reasoning based on the possibility for modification of the Concept DA in relation to the location of the Stormwater Channel being a basis for her finding of uncertainty. The substantive differences between the two grounds are minimal, albeit one refers expressly to Mison. They can be dealt with together.

169. Ground 11 essentially raises the same topic as was raised in Topic 2 concerning the location of the Stormwater Channel giving rise to uncertainty in the Commissioner’s view. Contrary to the assertion in ground 11, the Commissioner did not fail to consider the proposed Stormwater Channel on the eastern side of the Pacific Highway. The Commissioner considered that there was uncertainty that outcome could be achieved having regard to the response from HWC (as already addressed under Topic 2 in relation to which the Appellants were unsuccessful) and that a condition requiring approval of the Stormwater Channel in an undisclosed location could not be drafted in a certain manner in the absence of assessment of the environmental impacts. I do not accept the Appellants’ submissions on ground 11 in [166]-[167]. The Appellants cannot succeed on ground 11.

170. Turning to grounds 10 and 12, I essentially agree with and largely adopt with minor modifications the Panel’s submissions as these accurately apply the principles relevant to s 56A appeals of undertaking a fair reading of a judgment as a whole and because these accurately reflect the merit assessment analysis which the Commissioner was required to undertake based on the issues placed before her by the parties.

171. The contentions identified by the Panel in 1(b) identified uncertainty of the location of the Stormwater Channel as an issue. Contrary to the Appellants’ submissions that any uncertainty could be addressed by the Grampian conditions it proposed, and which the Commissioner should therefore have approved, the imposition of a Grampian condition does not negate the need to consider the likely impacts of the Concept DA pursuant to s 4.15(1) of the EPA Act. The Stormwater Channel was a necessary component in the merit assessment of the Concept DA as it managed stormwater from the development and the proposed Pacific Highway interchange. Whilst it was open to the Appellants to rely on a separate planning pathway to obtain consent for those works, the likely impacts were required to be assessed as part of the Concept DA.

172. Contrary to the Appellants’ submissions set out above, the Commissioner’s concern was not related solely to the power to modify a consent later amounting to uncertainty. The Appellants misconstrue the Commissioner’s reasoning at [427]-[428] and read this too narrowly. On a fair-minded reading, the Commissioner’s concern with respect to uncertainty related to the following:

1. The uncertain final location of the road works (as referred to in the State VPA) and the Stormwater Channel;

2. The ultimate design of the Stormwater Channel being built in a timely manner;

3. The unassessed potential for environmental impact; and

4. The unresolved possibility that the Stormwater Channel could be relocated entirely, with such relocation resulting in:

1. significant change to the shape and size of the eastern precincts; and

1. impact to the shape of the CA boundary.

173. Based on these concerns the Commissioner identified a substantial risk of lack of certainty or finality pertaining to any consent contingent upon the proposed Grampian conditions. As already considered in Topic 2 the Commissioner was not limited in her consideration only to option 4 for the location of Stormwater Channel.

174. The Commissioner’s adoption of the reasoning in Mison was apposite and correctly reflects the aspect of that decision that she relied on. It follows that the Appellants’ submissions on the scheme for modification provided in the EPA Act and considered in Kindimindi are not the appropriate lens through which to view the Commissioner’s reasoning. The Commissioner in undertaking her merit assessment was able to resolve that the Grampian conditions did not address the s 4.15(1) issues she must consider.

175. No error of law as expressed in grounds 10-12 is disclosed in the Commissioner’s rejection of the proposed Grampian conditions. The Appellants are unsuccessful on Topic 6.

Overall conclusion on outcome of the appeal

176. The Appellants have been successful on two aspects of Topic 1, being the incorrect application of cl 6.1 of the PSLEP (Topic 1B) and the incorrect determination that the Stormwater Channel is designated State public infrastructure (Topic 1C). The matter to now be considered is whether that outcome should result in the appeal being upheld given that the Appellants were unsuccessful on all the other grounds of appeal. When the judgment is viewed as a whole these errors of law by the Commissioner are not vitiating so that these errors would not have lead to a different result.

177. As stated by Moffitt P in Leichhardt Municipal Council v Seatainer TerminalsPty Ltd (1981) 48 LGRA 409 (Seatainer) at 419:

It is not sufficient to show that some error of law appears in the judgment or during the course of the trial. The error has to be one upon which the decision depends, so the decision is vitiated by the error. It will not suffice to establish that one or some only of a number of alternate findings upon which the decision depends, so the decision is vitiated by the error. It will not suffice to establish that one or some only of a number of alternate findings upon which the decision was given involved errors of law, if one alternative involved no error of law.

178. The description in Seatainer applies to thise judgment. The Commissioner’s reasons for dismissing the appeal were based on several substantive issues as articulated at the end of her judgment at [442] which she listed, non exhaustively, as the potential for significance of effect to native fauna, insufficient certainty on the provision of designated State significant infrastructure, likelihood of environmental impact, complex and disorderly development, the Site was not demonstrated as suitable for proposed (and future) development and not in the public interest. I have identified above that there were a number of substantial findings in relation to lack of detail in relation to hydrological impacts which are not the subject of challenge. For example, the Commissioner identified at [365] and [366] additional methodological shortcomings in what was presented by the Appellants’ experts on hydrological matters which were grounded in conditions at the Site. There are other issues considered in the lengthy judgment which have not required consideration under the grounds of appeal, such as her findings under ‘Does the application result in the orderly and economic use in the development of the land?’ at [430]-[440]. These multiple findings are all separate bases for refusing development consent on merit grounds.

179. I do not accept the Appellants’ characterisation of the Commissioner’s conclusion about refusal of the Concept DA at [442] that the establishment of error in any one integer results in the appeal being upheld. That submission does not reflect the nature of the Commissioner’s decision-making process, as expressed in her complex judgment expressing a complex proposal.

180. The Appellants’ appeal is dismissed.

Costs

181. The parties have yet to make submissions on costs. They will be provided with an opportunity to do so before any costs order is made. Costs are reserved.

Order

182. The Court orders:

1. Appeal no 2023/299740 is dismissed.

2. Costs reserved.

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Decision last updated: 20 January 2025