Vollmer v Port Stephens Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Vollmer v Port Stephens Council [2025] NSWLEC 1428

Hearing dates:

4 April 2025

Date of orders:

17 June 2025

Decision date:

17 June 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development Application DA 16-2024-290-1 for a boundary adjustment between Lot 579 in DP 1209777 and Lot 580 in DP 116016 at 70 Wallalong Road and 83 Clarence Street, Wallalong 2320 is determined by way of refusal.

(3) All exhibits are retained.

Catchwords:

DEVELOPMENT APPLICATION – subdivision – statutory construction – subdivision by way of boundary adjustments between lots – appeal dismissed

Legislation Cited:

Interpretation Act 1987, s 33

Port Stephens Local Environmental Plan 2013, cll 2.6, 4.1, 4.1E, 4.6, 5.16

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, s 2.75

Cases Cited:

Cumberland Council v Tony Younan; Cumberland Council v Ronney Oueik; Cumberland Council v H & M Renovations Pty Ltd [2018] NSWLEC 145

McCabe v Blue Mountains City Council (2006) 145 LGERA 86; [2006] NSWLEC 176

Category:

Principal judgment

Parties:

Tony David Vollmer (First Applicant)
David Adam Vollmer (Second Applicant)
Port Stephens Council (Respondent)

Representation:

Counsel:
A Shearer SC (Applicants)
H Irish (Respondent)

Solicitors:
Bick & Steele (Applicants)
Local Government Legal (Respondent)

File Number(s):

2024/315226

Publication restriction:

None

JUDGMENT

1. Tony and David Vollmer own a rural property in Wallalong that stretches between the town and the Patterson River. The property consists of two lots: a large lot of 96.61ha (Lot 579 DP 1209777), and a small lot of 4,491.56m2 within it (Lot 580 DP 1160616) (figure 3). The smaller lot is irregular in shape, and is landlocked within the site towards the north-western corner, accessed by a right of carriageway leading from Clarence Street to its east. The Vollmers wish to change this pattern of subdivision by moving the smaller Lot 580 some 140m to the far eastern edge of Lot 579, and altering its shape and size (figures 1 and 2).

2. In a conciliation conference prior to this hearing, the majority of issues in contention between the applicant Vollmers and the respondent Port Stephens Council were resolved. The remaining issues that are the subject of this hearing are whether the consent authority has power under the Port Stephens Local Environmental Plan 2013 (PSLEP) to grant consent to this subdivision, and subsequently, whether the proposed development meets the requirements of cl 4.1E of the PSLEP.

3. The proposed lots are as follows:

1. Proposed Lot 1: 4000m2 in area, rectangular in shape, with regular dimensions of 90 x 50m. This proposed lot is vacant of any structures, and will have direct frontage to Clarence St on its eastern boundary (figures 1 and 2)

2. Proposed Lot 2: 96.65ha in area, retaining the existing farm buildings and existing external boundaries, with the exception of the corner where it is modified by proposed Lot 1 (figure 1)

4. The land, which is zoned RU1 Primary Production under the PSLEP, is subject…