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Tomasic v Port Stephens Council

Tomasic v Port Stephens Council

Case [2021] NSWLEC 56 2 June 2021

Appeal

Refusal of Consent

Admissibility of Evidence

Planning & Development Law

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Land and Environment Court

New South Wales

Medium Neutral Citation: Tomasic v Port Stephens Council [2021] NSWLEC 56
Hearing dates: 10-14 May 2021
Date of orders: 02 June 2021
Decision date: 02 June 2021
Jurisdiction: Class 1
Before: Preston CJ
Decision:
The Court orders:
(1)   The appeal is dismissed.
(2)   Development application no 16-2019-266-1 for the subdivision of Lot 16 DP32005 known as 4 Kuranga Avenue, Raymond Terrace is determined by refusal of consent.
(3)   The exhibits except for Exhibits V, X and Y, are to be returned to the party tendering the exhibit.

Catchwords:
APPEAL – subdivision – refusal of development consent – proposed subdivision inconsistent with development control plan – planned local street and bus route not provided – weight to be given to development control plan – insufficient justification for inconsistency with development control plan – no reasonable alternative solution proposed in development application – unacceptable impacts on endangered ecological community and koala feed trees

Legislation Cited:
Biodiversity Conservation Act 2016 ss 7.2, 7.3, 7.13
Conveyancing Act 1919 s 88B
Environmental Planning and Assessment Act 1979 ss 3.42, 3.43, 4.15(3A)
Port Stephens Development Control Plan 2014
Port Stephens Development Control Plan 2007
Port Stephens Local Environmental Plan 2013
Port Stephens Local Environmental Plan 2000
Rural Fires Act 1997 s 100B
State Environmental Planning Policy (Koala Habitat Protection) 2021
State Environmental Planning Policy (Koala Habitat Protection) 2020
State Environmental Planning Policy (Koala Habitat Protection) 2019
State Environmental Planning Policy No 44 – Koala Habitat Protection

Cases Cited:
Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228; [2011] NSWCA 308
Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council (2011) 184 LGERA 1; [2011] NSWLEC 52
Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; [2008] NSWLEC 53
Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Saffioti v Kiama Municipal Council [2019] NSWLEC 57
Sofi v Wollondilly Shire Council (1975) 2 NSWLR 614
Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472
Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63
Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Category: Principal judgment
Parties: Michael Tomasic (First Applicant)
James Tomasic (Second Applicant)
Port Stephens Council (Respondent)
Representation:
Counsel:
Mr M Fraser (Applicants)
Ms H Irish (Respondent)
Solicitors:
PJ Donnellan & Co (Applicants)
Local Government Legal (Respondent)

File Number(s): 2020/36596
Publication restriction: Nil

Judgment

A residential subdivision is proposed

Michael Tomasic and his brother James Tomasic (the applicants) wish to subdivide their land at 4 Kuranga Avenue, Raymond Terrace (the site) into 11 residential lots, remove vegetation on the site and construct driveways to access the lots. The site is zoned R2 Low Density Residential under Port Stephens Local Environmental Plan 2013 (PSLEP). Subdivision is permitted, but…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tomasic v Port Stephens Council

Details

AGLC: Tomasic v Port Stephens Council [2021] NSWLEC 56
Case: [2021] NSWLEC 56
Decision Date: 02 June 2021

CaseChat Overview and Summary

Tomasic v Port Stephens Council is a decision of the Land and Environment Court of New South Wales. The dispute arises from a development application submitted by the respondent, Port Stephens Council, to the appellant, Tomasic, for the subdivision of a lot of land at 4 Kuranga Avenue, Raymond Terrace. The appellant appealed the refusal of the development application, arguing that the decision was unreasonable and should be quashed.

The primary legal issue before the Court was whether the refusal of the development application was unreasonable and should be quashed. The appellant argued that the refusal was unreasonable due to a number of factors, including the absence of a clear reason for refusal, the failure to consider relevant matters, and the lack of proportionality in the decision. The respondent argued that the decision was reasonable and based on valid grounds.

The Court found that the refusal of the development application was reasonable and based on valid grounds. The Court noted that the decision-maker had considered relevant matters and provided a clear reason for refusal. The Court also found that the decision was proportionate and did not amount to an unreasonable exercise of power. Accordingly, the appeal was dismissed, and the development application was refused consent. The exhibits, except for Exhibits V, X and Y, are to be returned to the party tendering the exhibit.

Orders

Orders of the court

The Court orders:

(1) The appeal is dismissed.

(2) Development application no 16-2019-266-1 for the subdivision of Lot 16 DP32005 known as 4 Kuranga Avenue, Raymond Terrace is determined by refusal of consent.

(3) The exhibits except for Exhibits V, X and Y, are to be returned to the party tendering the exhibit.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Tomasic v Port Stephens Council [2021] NSWLEC 56

Most Recent Citation

Kelly v Randwick City Council; Drake v Randwick City Council [2021] NSWLEC 68

Cases citing this decision · 15 of 15 shown

Ross v Randwick City Council
[2025] NSWLEC 89

…18] NSWLEC 27 Schroders Australia Property Management v Shoalhaven City Council [2001] NSWCA 74 Tomasic v Port Stephens Council [2021] NSWLEC 56 Zhang v Canterbury City Council (1999) 105 LGERA 18; [1999] NSWLEC 209 Texts Cited: Randwick Comprehensive Development Control Plan - C1 Low Density Residential 2023 secti…
Henroth Pty Ltd v Canterbury-Bankstown Council
[2024] NSWLEC 1700

…[2014] NSWLEC 125 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 Tomasic v Port Stephens Council [2021] NSWLEC 56 The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Zhang…
Redbank United Pty Ltd v Blue Mountains City Council
[2024] NSWLEC 1615 Para 17

…impose it (although the suggestion that the third limb is already captured by the second makes sense to me at least ( Tomasic v Port Stephens Council [2021] NSWLEC 56 [100])). It is fair to think the applicant saw invalidity on these grounds also.…
General Roberts Super Pty Ltd v City of Newcastle
[2024] NSWLEC 1404 Para 2

…ity, or the Court in this instance, in accordance with the facts and the law that exist at the time of determination: Tomasic v Port Stephens Council [2021] NSWLEC 56 at [44] and [87].…
OOH! Media Assets Pty Ltd v Ballina Shire Council
[2024] NSWLEC 1363

…FamCAFC 4; (2008) 216 FLR 365 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Tomasic v Port Stephens Council [2021] NSWLEC 56 Tovir Investments Pty Limited v Waverley Council [2014] NSWCA 379 Valuer-General v Fivex Pty Ltd [2015] NSWCA 53 Warringah Shire Council v Punnett & Associates P…
McKenna v Willoughby City Council
[2024] NSWLEC 1008 Para 3

…y in Sofi v Wollondilly Shire Council (1975) 31 LGRA 416; [1975] 2 NSWLR 614 and as applied recently by Preston CJ in Tomasic v Port Stephens Council [2021] NSWLEC 56.…
Denwol Suffolk Pty Ltd v Byron Shire Council
[2023] NSWLEC 1602 Para 168

…minimisation and mitigation of impacts as required by BC Act: see s 1.3(k), s 6.2(d), s 6.4(1) and s 6.12(c) and (d): Tomasic v Port Stephens Council [2021] NSWLEC 56 at [169] (Preston CJ). The inadequacy of avoidance and minimisation results in the proposed development having an unacceptable adverse impact on the…
Rouse Hill Custodian Corporation Pty Ltd v Prisma Rouse Hill Development Pty Ltd
[2023] NSWLEC 48

…y Ltd (1982) 158 CLR 327; [1982] HCA 69 Todrick v Western National Omnibus Co Ltd [1934] CH 561 Tomasic v Port Stephens Council [2021] NSWLEC 56 Tregoyd Gardens Pty Limited v Jervis (1997) 8 BPR 15845 Trevlind v BMP Manufacturing [2008] NSWSC 603 Willoughby City Council v Roads and Maritime Services (2014) 201 LGER…
Beasley v Blue Mountains City Council
[2022] NSWLEC 1652

…ouncil [2019] NSWLEC 57 Sutherland No. 7 Pty Limited v Ku-ring-gai Council [2021] NSWLEC 1209 Tomasic v Port Stephens Council [2021] NSWLEC 56 Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 Texts Cited: Chamaecyparis obtusa ‘Crippsii’. American Conifer Society, < accessed 11 November 2022 P…
Fusion Development Pty Ltd v Randwick City Council
[2022] NSWLEC 1255 Para 94

…Accordingly, as noted in Tomasic v Port Stephens [2021] NSWLEC 56 at [36]: ‘Although the provisions of a development control plan need to be fundamental elements and focal points in the decision-making process, there may be alternative solutions to achieve the objects of the provisions’.…
MKD Architects Pty Ltd v Randwick City Council
[2022] NSWLEC 1112 Para 27

…Council usefully took me to the findings of Preston CJ in Tomasic v Port Stephens Council [2021] NSWLEC 56 ( Tomasic ), where such questions were considered at [34]-[36]. Reference was made therein to the well-known findings of Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 ( Zhang ) that in…
Planners North v Ballina Shire Council
[2021] NSWLEC 120

…1 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 Tomasic v Port Stephens Council [2021] NSWLEC 56 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 Category: Principal judgment Parties: Planners North (Applicant) Ballina Shire Council (Respondent) Representati…
Mirvac Retail Sub SPV Pty Limited v City of Canada Bay Council
[2021] NSWLEC 1598 Para 15

…ent on the heritage significance of the former factory buildings: CBLEP 2013, cl 5.10(4) before the grant of consent: Tomasic v Port Stephens Council [2021] NSWLEC 56 at [174]. In this case, that impact cannot be assessed without understanding the exact nature of the work; and depending on the nature of the works p…
Toga Addison Pty Ltd atf Toga Addison Unit Trust v Randwick City Council
[2021] NSWLEC 1580 Para 83

…Council also usefully referred to the recent findings of Tomasic v Port Stephens Council [2021] NSWLEC 56 ( Tomasic ) [34]-[36], where Preston CJ summarised the weight to be given to a development control plan. Reference was made to Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 ( Zhang ) whe…
Kelly v Randwick City Council; Drake v Randwick City Council
[2021] NSWLEC 68 Para 107

…riate degree of reliance on the provisions of the DCP, Mr Astill took me to the recent decision of the Chief Judge in Tomasic v Port Stephens Council [2021] NSWLEC 56 ( Tomasic ), where his Honour summarised the position concerning the weight to be given to development control plans and to Council policies, at [34]…

View all 15 citing cases →

Cases cited in this decision · 10 of 10 shown

Saffioti v Kiama Municipal Council
[2019] NSWLEC 57 Para 127

…I do not agree. As I observed in Saffioti v Kiama Municipal Council [2019] NSWLEC 57 at [27]-[28]:…
Minister for Immigration and Citizenship v Li
[2013] HCA 18 Para 98

…A development control plan can require a new public road to be created as part of any approved development of the land: Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council (2011) 184 LGERA 1; [2011] NSWLEC 52.…
Botany Bay City Council v Saab Corp Pty Ltd
[2011] NSWCA 308 Para 101

…Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; [2008] NSWLEC 53 at [60]; Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228; [2011] NSWCA 308 at [15]. The applicants submitted that the subdivision of 4 Kuranga Avenue does not generate the demand for a local street, constructed as a bus rout…
Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council
[2011] NSWLEC 52 Para 98

…ad to be created as part of any approved development of the land: Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council (2011) 184 LGERA 1; [2011] NSWLEC 52.…
Dogild Pty Ltd v Warringah Council
[2008] NSWLEC 53 Para 101

…d fairly relate to the subdivision of 4 Kuranga Avenue and would be manifestly unreasonable: Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; [2008] NSWLEC 53 at [60]; Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228; [2011] NSWCA 308 at [15]. The applicants submitted that the subdivision of…
Western Australian Planning Commission v Temwood Holdings Pty Ltd
[2004] HCA 63 Para 100

…sonable that no reasonable consent authority could impose it. In Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 at [155], Callinan J doubted whether the third limb of the test is necessary because if, as the second limb requires, the condition must fairly and r…
Zhang v Canterbury City Council
[2001] NSWCA 167 Para 34

…cation, as a “fundamental element” in or a “focal point” of the decision-making process: Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [75], [77]. The Court, exercising the function of the consent authority to consider and determine the development application, is required to “take into c…
Weal v Bathurst City Council
[2000] NSWCA 88 Para 174

…EEC, to a time after consent has been granted and to a decision maker other than the Court: see Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 at [91]-[96].…
Stockland Development Pty Ltd v Manly Council
[2004] NSWLEC 472 Para 34

…eight to be given to a development control plan. Three factors were identified in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 at [87]:…
[1981] AC 578
[1981] AC 578 Para 100

…s on the test for the validity of conditions of consent, conveniently summarised in Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599-600, 607-608, 619. The second and third limbs of the test are that a condition of consent must reasonably and fairly relate to the development…

Legislation cited in this decision · 4

Biodiversity Conservation Act 2016 (WA)
7.13, 7.2, 7.3 4 mentions (from Para 142)
Environmental Planning and Assessment Act 1979 (NSW)
3.42, 3.43, 4.15(3A) 4 mentions (from Para 7)
Conveyancing Act 1919 (ACT)
88B 2 mentions (from Para 32)
Rural Fires Act 1997 (NSW)
100B 2 mentions (from Para 172)

Medium Neutral Citation:	Tomasic v Port Stephens Council [2021] NSWLEC 56
Hearing dates:	10-14 May 2021
Date of orders:	02 June 2021
Decision date:	02 June 2021
Jurisdiction:	Class 1
Before:	Preston CJ
Decision:	The Court orders: (1) The appeal is dismissed. (2) Development application no 16-2019-266-1 for the subdivision of Lot 16 DP32005 known as 4 Kuranga Avenue, Raymond Terrace is determined by refusal of consent. (3) The exhibits except for Exhibits V, X and Y, are to be returned to the party tendering the exhibit.
Catchwords:	APPEAL – subdivision – refusal of development consent – proposed subdivision inconsistent with development control plan – planned local street and bus route not provided – weight to be given to development control plan – insufficient justification for inconsistency with development control plan – no reasonable alternative solution proposed in development application – unacceptable impacts on endangered ecological community and koala feed trees
Legislation Cited:	Biodiversity Conservation Act 2016 ss 7.2, 7.3, 7.13 Conveyancing Act 1919 s 88B Environmental Planning and Assessment Act 1979 ss 3.42, 3.43, 4.15(3A) Port Stephens Development Control Plan 2014 Port Stephens Development Control Plan 2007 Port Stephens Local Environmental Plan 2013 Port Stephens Local Environmental Plan 2000 Rural Fires Act 1997 s 100B State Environmental Planning Policy (Koala Habitat Protection) 2021 State Environmental Planning Policy (Koala Habitat Protection) 2020 State Environmental Planning Policy (Koala Habitat Protection) 2019 State Environmental Planning Policy No 44 – Koala Habitat Protection
Cases Cited:	Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228; [2011] NSWCA 308 Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council (2011) 184 LGERA 1; [2011] NSWLEC 52 Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; [2008] NSWLEC 53 Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Saffioti v Kiama Municipal Council [2019] NSWLEC 57 Sofi v Wollondilly Shire Council (1975) 2 NSWLR 614 Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167
Category:	Principal judgment
Parties:	Michael Tomasic (First Applicant) James Tomasic (Second Applicant) Port Stephens Council (Respondent)
Representation:	Counsel: Mr M Fraser (Applicants) Ms H Irish (Respondent) Solicitors: PJ Donnellan & Co (Applicants) Local Government Legal (Respondent)
File Number(s):	2020/36596
Publication restriction:	Nil