Vollmer v Port Stephens Council

[2025] NSWLEC 1428

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 to development controls that limit the minimum lot size under PSLEP cl 4.1 to 40ha. As proposed Lot 1 is 4000m2, it falls short of the minimum lot size requirement by 90%. Subsequently, the only potential path for the proposed 2-into-2 lot subdivision to be permitted is by way of application of PSLEP cl 4.1E, which permits boundary adjustments of and in certain rural, residential and conservation zones.

5. The issue between the parties is one of statutory interpretation of cl 4.1E, and whether the proposed subdivision can be considered a boundary adjustment between adjoining lots, and therefore whether there is power to grant consent to the application.

Figure 1: The proposed lot configuration, with existing Lot 580 shown in black (Extract from Ex 2)

Figure 2: Existing Lot 580 and proposed Lot 1 (not to scale) (Extract from Ex B)

Figure 3: Existing lot arrangement- Lot 579 shown in red and Lot 580 shown in orange. (Extract from Ex 2)

The statutory context

6. The PSLEP relevantly provides for subdivision in the following ways.

7. Firstly, subdivision is permitted with consent pursuant to cl 2.6.

8. Clause 4.1 provides for minimum subdivision lot sizes:

4.1   Minimum subdivision lot size

(1)  The objectives of this clause are as follows—

(a)  to ensure that lot sizes are able to accommodate development that is suitable for its purpose and that is consistent with relevant development controls,

(b)  to prevent the fragmentation of rural areas.

(2)  This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3)  The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

(4)  This clause does not apply in relation to the subdivision of any land—

(a)  by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or

(b)  by any kind of subdivision under the Community Land Development Act 2021.

9. Clause 4.1E, under which the applicants seek consent, is as follows:

4.1E   Boundary adjustments of land in certain rural, residential and conservation zones

(1)  The objective of this clause is to facilitate boundary adjustments between lots where one or more resulting lots do not meet the minimum lot size but the objectives of the relevant zone can be achieved.

(2)  This clause applies to land in the following zones—

(a)  Zone RU1 Primary Production,

(b)  Zone RU2 Rural Landscape,

(c)  Zone RU3 Forestry,

(d)  Zone R5 Large Lot Residential,

(e)  Zone C2 Environmental Conservation,

(f)  Zone C3 Environmental Management,

(g)  Zone C4 Environmental Living.

(3)  Despite clause 4.1, development consent may be granted to subdivide land by way of a boundary adjustment between adjoining lots where one or more resulting lots do not meet the minimum lot size shown on the Lot Size Map in relation to that land, if the consent authority is satisfied that—

(a)  the subdivision will not create additional lots or the opportunity for additional dwellings, and

(b)  the number of dwellings or opportunities for dwellings on each lot after the subdivision will remain the same as before the subdivision, and

(c)  the potential for land use conflict will not be increased as a result of the subdivision, and

(d)  in relation to land in Zone RU1 Primary Production, Zone RU2 Rural Landscape or Zone RU3 Forestry—the subdivision will not have a significant adverse effect on the agricultural viability of the land, and

(e)  in relation to land in Zone C2 Environmental Conservation, Zone C3 Environmental Management or Zone C4 Environmental Living—the subdivision will result in the continued protection and long-term maintenance of the land.

(4)  In determining a development application for the subdivision of land under this clause, the consent authority must consider the following—

(a)  the existing uses and approved uses of other land in the vicinity of the subdivision,

(b)  whether the subdivision is likely to have a significant impact on land uses that are likely to be preferred and the predominant land uses in the vicinity of the development,

(c)  whether the subdivision is likely to be incompatible with a land use on any adjoining land,

(d)  whether the subdivision is appropriate having regard to the natural and physical constraints affecting the land,

(e)  whether the subdivision will alienate water resources or access to water for agriculture,

(f)  whether the subdivision is likely to have a significant adverse impact on the environmental values of the land.

(5)  This clause does not apply to the subdivision of land under the Community Land Development Act 1989 or under the Strata Schemes (Freehold Development) Act 1973.

10. I note that cl 4.1E refers to both ‘boundary adjustments between lots’ and ‘a boundary adjustment between adjoining lots’. I accept the parties’ submissions that, in this instance and in this context, the two are interchangeable.

11. Clause 4.6 provides further exemptions to the minimum lot size which, although the proposed subdivision is not requested as an exemption pursuant to this clause, I provide for context:

4.6   Exceptions to development standards

(1)  The objectives of this clause are as follows—

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that—

(a)  compliance with the development standard is unreasonable or unnecessary in the circumstances, and

(b)  there are sufficient environmental planning grounds to justify the contravention of the development standard.

Note—

The Environmental Planning and Assessment Regulation 2021 requires a development application for development that proposes to contravene a development standard to be accompanied by a document setting out the grounds on which the applicant seeks to demonstrate the matters in paragraphs (a) and (b).

(4)  The consent authority must keep a record of its assessment carried out under subclause (3).

(5)    (Repealed)

(6)  Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone C2 Environmental Conservation, Zone C3 Environmental Management or Zone C4 Environmental Living if—

(a)  the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or

(b)  the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard.

Note.

When this Plan was made it did not include all of these zones.

(7)    (Repealed)

(8)  This clause does not allow development consent to be granted for development that would contravene any of the following—

(a)  a development standard for complying development,

(b)  a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated,

(c)  clause 5.4,

(caa)  clause 5.5,

(ca)  clause 6.2.

12. For further statutory context, cl 5.16 provides:

5.16   Subdivision of, or dwellings on, land in certain rural, residential or conservation zones

(1)  The objective of this clause is to minimise potential land use conflict between existing and proposed development on land in the rural, residential or conservation zones concerned (particularly between residential land uses and other rural land uses).

(2)  This clause applies to land in the following zones—

(a)  Zone RU1 Primary Production,

(b)  Zone RU2 Rural Landscape,

(c)  Zone RU3 Forestry,

(d)  Zone RU4 Primary Production Small Lots,

(e)  Zone RU6 Transition,

(f)  Zone R5 Large Lot Residential,

(g)  Zone C2 Environmental Conservation,

(h)  Zone C3 Environmental Management,

(i)  Zone C4 Environmental Living.

(3)  A consent authority must take into account the matters specified in subclause (4) in determining whether to grant development consent to development on land to which this clause applies for either of the following purposes—

(a)  subdivision of land proposed to be used for the purposes of a dwelling,

(b)  erection of a dwelling.

(4)  The following matters are to be taken into account—

(a)  the existing uses and approved uses of land in the vicinity of the development,

(b)  whether or not the development is likely to have a significant impact on land uses that, in the opinion of the consent authority, are likely to be preferred and the predominant land uses in the vicinity of the development,

(c)  whether or not the development is likely to be incompatible with a use referred to in paragraph (a) or (b),

(d)  any measures proposed by the applicant to avoid or minimise any incompatibility referred to in paragraph (c).

13. Certain subdivision may also be permitted on this land under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Exempt and Complying SEPP). The Vollmers have not requested the proposed subdivision under this SEPP, and so again this is provided for context:

2.75   Specified development

The subdivision of land, for the purpose only of any one or more of the following, is development specified for this code—

(a)  widening a public road,

(b)  a realignment of boundaries—

(i)  that is not carried out in relation to land on which a heritage item or draft heritage item is situated, and

(ii)  that will not create additional lots or increase the number of lots with a dwelling entitlement or increase the opportunity for additional dwellings, and

(iii)  that will not result in any lot that is smaller than the minimum size specified in an environmental planning instrument in relation to the land concerned (other than a lot that was already smaller than that minimum size), and

(iv)  that will not adversely affect the provision of existing services on a lot, and

(v)  that will not result in any increased fire risk to existing buildings, and

(vi)  if located in Zone RU1, RU2, RU3, RU4, RU6, C1, C2, C3 or C4—that will not result in more than a minor change in the area of any lot, and

(vii)  if located in any other zone—that will not result in a change in the area of any lot by more than 10%,

(c)    (Repealed)

(d)  rectifying an encroachment on a lot,

(e)  creating a public reserve,

(f)  excising from a lot land that is, or is intended to be, used for public purposes, including drainage purposes, rural fire brigade or other emergency service purposes or public toilets.

The principles of statutory construction

14. The parties dispute the interpretation, and consequently the application of, PSLEP cl 4.1E. In particular, the dispute is focussed on the meaning of the words ‘boundary adjustments between lots’ in PSLEP cl 4.1E. In interpreting this clause, I have regard to the well-established principles of statutory interpretation.

15. Firstly, s 33 of the Interpretation Act 1987 reads:

‘33   Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.’

16. The accepted principles of statutory construction are summarised by Robson J in Cumberland Council v Tony Younan; Cumberland Council v Ronney Oueik; Cumberland Council v H & M Renovations Pty Ltd [2018] NSWLEC 145 (Cumberland Council) at [71]–[72]:

“In resolving the meaning of s 127(5A), the ordinary approach to statutory interpretation applies. The now well-accepted approach was recently considered in Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of the Late Ryan Messenger [2018] NSWCA 178, where Payne JA, with whom Basten and Gleeson JJA, Sackville AJA, and Simpson AJA agreed, said at [57]:

The relevant principles of statutory construction were not controversial. The parties referred to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47], where the plurality emphasised that construction must begin with a consideration of the text itself and while the language employed is the surest guide, its meaning may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. The importance of context, including the general purpose and policy of the provision has subsequently been emphasised by the High Court: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [41]; Federal Commissioner of Taxation v Consolidated Media Holding Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 at [14] and [25]-[39].

However, the importance of context does not detract from the centrality of the text and the principle that each word should be given work to do: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (‘Project Blue Sky’) at 381-382. Where the clear words of a statute demand a particular outcome, the fact that the outcome may appear inconvenient will not, in itself, be determinative.”

Defining ‘boundary adjustments between lots’

17. For the purposes of the PSLEP, the term ‘boundary adjustments between lots’ is undefined.

18. The purpose of cl 4.1E is expressly stated at subcl (1), ‘to facilitate boundary adjustments between lots where one or more resulting lots do not meet the minimum lot size but the objectives of the relevant zone can be achieved’

19. When construing this phrase in its context, the Vollmers submit that the purpose of cl 4.1E is to facilitate 2-into-2-lot subdivisions that would fall foul of the restriction in cl 4.1, but where the objectives of the relevant zone can be achieved. They suggest that, as the purpose of the clause is permissive, the clause is remedial or beneficial and should therefore be construed so as to give the fullest relief which the fair meaning of its language will allow, and that adopting a narrow construction of the meaning of ‘boundary adjustment’ or other aspects of the clauses would be contrary to this. The Vollmers suggest that the only work the words ‘boundary adjustments’ do in this context is to allow for a change to the subdivision pattern that results in undersized lots, without creating additional lots, subject to the provisions of the clause.

20. The Council submits that the words ‘boundary adjustment’ have more work to do than the Vollmers suggest, and that the findings of Jagot J in McCabe v Blue Mountains City Council (2006) 145 LGERA 86; [2006] NSWLEC 176 (McCabe) provide principles that are relevant to this case.

21. Both the clauses in question and the statutory instrument that are interrogated in McCabe are different to PSLEP cl 4.1E, however it is common to the text of both provisions that they permit subdivision that is for a ‘boundary adjustment’, and will not create additional lots (McCabe at [47]). Jagot J states at [47]-[48] (references removed):

[47] “I consider that the words of cl 34.4(c)(i) take their ordinary meaning. The development permitted by the clause is subdivision that: (i) is “for a boundary adjustment”, and (ii) does not create any additional lots.

[48] Accordingly, and contrary to the applicant's first submission, I do not consider the phrase “where no additional lots are created” exhausts the meaning of the phrase “ … for a boundary adjustment”. It is difficult to envisage a subdivision for a boundary adjustment that creates additional lots (although cl 34.4(c)(i) may be contrasted with cl 34.11 in this respect). If the intended meaning of the provision is to permit subdivision where no additional lots are created, then the words “for a boundary adjustment” are superfluous. To comply with the “known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”, I must give meaning to the words “ … for a boundary adjustment”. Accordingly, I consider that the clause contemplates that a subdivision may not create any additional lots, and yet may not be “for a boundary adjustment”.”

22. And further at [55]-[56] (references removed):

[55] “The general context in which the words “ … for a boundary adjustment” appear is a provision of an environmental planning instrument regulating the division of land into parts obviously adapted for separate occupation, use or disposition (s 4B of the EPA Act). The immediate context is a provision of such an instrument that prescribes that the subdivision must be for a boundary adjustment, where no additional lots are created.

[56] In this context, I do not accept that the “ordinary and grammatical meaning” of the phrase “ … for a boundary adjustment” embraces any and all alterations of a boundary that make land suitable for an applicant's requirements. I consider that the primary meaning conveyed by the clause, construed in its immediate and more general context, accords with the notion of an alteration of a boundary by correction or regularisation, whether that correction or regularisation is to reflect actual conditions (such as physical features of the land or its zoning) or to achieve some other requirement or objective (for example, to render the use of land feasible or more practical). Hence, consistent with the observation of Cripps J in Boast v Eurobodalla Shire Council, unreported, NSWLEC, 20110/91, 22 November 1991 at pp 2 - 3, questions of fact and degree are involved.”

23. The Vollmers do not accept that the principles of McCabe are relevant to these proceedings. They submit that, because the clause in question in McCabe is drafted in a manner that is restrictive rather than prohibitive, and has no clear object, Jagot J’s interpretation of the ordinary meaning of the words ‘boundary adjustments’ is irrelevant. Further, they submit that applying the McCabe definition to cl 4.1E of the PSLEP would render the merits based matters that are dealt with in cl 4 superfluous. They state that it is difficult to see how a boundary adjustment as per McCabe definition could result in a subdivision that offends any of the merits based tests in cl 4.1E.

24. The Vollmers also refer to the Council’s ‘Planning Proposal – Boundary Realignments: Proposed amendment to Port Stephens Local Environmental Plan 2013 – Boundary Realignments’ (Ex E) for context as to the purpose of cl 4.1E. This document, amongst other things states that the objectives of the planning proposal are “to facilitate minor boundary realignments that do not satisfy exempt provisions on lots where one or more resultant lots do not meet the minimum lot size as shown on the Lot Size Map, where the objectives of the relevant zone can be achieved and does not result in the creation of any additional lots or dwelling entitlements.” (Ex E p3).

25. Finally, the Vollmers submit that the matters stipulated in cl 4.1E(3)(a)-(e) provide the constraint of power, and that the matters for consideration listed at cl 4.1E(4)(a)-(f) provide assistance in the way in which the whole clause is to be viewed. They state that, if the intent of the clause was only for minor realignments, it is hard to see how the matters listed in subcl (4) could ever be offended. In the opinion of the Vollmers, a minor realignment or alteration to the boundary would be highly unlikely to, for example, alienate water resources or access to water for agriculture.

26. I have considered the parties’ submissions, the statutory context, the background information provided in the Ex E and the findings in McCabe.

27. PSLEP cl 4.1E is a provision within an environmental planning instrument that regulates the subdivision of land in circumstances where the proposed development does not meet certain provisions of other clauses within the instrument. It does not allow for subdivision in all circumstances. There are alternate paths for development consent for the subdivision of lots that do not meet the minimum lot size development standard at cl 4.1 within the instrument, including both cl 4.1E and cl 4.6 Exceptions to development standards, as well as beyond the instrument, in the Exempt and Complying SEPP. I do not accept the Vollmer’s suggestion that the constraint that ‘the subdivision will not create additional lots or the opportunity for additional dwellings’, or any of the other preconditions to consent set out in cl 4.1E (3) or (4), exhaust the meaning of a ‘boundary adjustment’. I also do not have any evidence upon which to conclude that a minor boundary adjustment could not easily result in impacts of the kind listed in subcl (4).

28. I do not suggest to ‘read down’ the meaning of cl 4.1E by adopting a narrow construction of the phrase ‘boundary adjustments between lots’, as is suggested by the Vollmers, however in applying the principles of statutory construction, as stated by Robson J in Cumberland Council:

‘The importance of context does not detract from the centrality of the text and the principle that each word should be given work to do’.

29. The Vollmer’s construction suggests that the words ‘boundary adjustments’ simply limit the subdivision to one that does not result in an additional lot (i.e. a 2-into-2-lot subdivision), and that the ordinary meaning is at odds with the intention of the clause. Their position renders the words ‘boundary adjustments’ readily interchangeable with other words. I prefer the evidence of the Council that the words ‘boundary adjustment’ have meaning, and that these words should be given work to do. In this context, noting the extent of other subdivision provisions within the PSLEP, I concur with the Council that the limitation of a ‘2-into-2 lot subdivision’ does not exhaust the meaning of ‘boundary adjustments between lots’.

30. In my considered opinion, when construed in the context of cl 4.1E, the PSLEP generally, and relevant other statutory provisions relating to subdivision, the words ‘boundary adjustment’ take on their ordinary meaning and are not interchangeable with other words that speak only to limiting the creation of an additional lot. The ordinary meaning provided by Jagot J in McCabe at [56] is of assistance: that a ‘boundary adjustment’ “accords with the notion of an alteration of a boundary by correction or regularisation, whether that correction or regularisation is to reflect actual conditions (such as physical features of the land or its zoning) or to achieve some other requirement or objective (for example, to render the use of land feasible or more practical).” Despite the differences noted by the Vollmers between the clauses interrogated in McCabe and cl 4.1E, I consider the similarities, as highlighted by the Council, sufficient to adopt the ordinary meaning provided by Jagot J.

31. Further, I concur with the Council that, in addition to meeting the remaining provisions in the clause, the exercise of the power to grant consent under PSLEP cl 4.1E is confined to the circumstance where the subdivision is a ‘boundary adjustment between lots’.

The application of cl 4.1E to the proposed development

32. In considering questions of fact and degree in relation to this application, the Council draws attention to the comparison between the existing Lot 580 and the proposed Lot 1. They submit that all four of the proposed boundaries for Lot 1 are entirely new, and that no point along the existing boundary of Lot 580 remains static or bearing a relationship to the existing boundary once ‘adjusted’.

33. The Council therefore concludes that the proposed development is not an adjustment of a boundary or boundaries, but is in fact the consolidation of Lot 580 into Lot 579, and subsequent subdivision of the enlarged Lot 579 into two lots.

34. The Vollmers refute this position, noting that nothing in cl 4.1E directs or limits the degree of adjustment, nor dictates that any point on the existing boundary must remain static. Although I concur with this submission, I return to the point accepted by both parties that this application needs to be considered as a question of fact and degree.

35. If any relationship is considered between existing Lot 580 and proposed Lot 1, it is that Lot 580 has been entirely relocated some 140m to the east, and then its size and shape altered. It is modified from being a small lot within a larger one, to a small lot attached to a larger one, despite the original lot not being within a proximity to the edge of Lot 579 that could be regularised by way of an ‘adjustment’. The only similarity with the existing Lot 580 is that it is substantially smaller than, and shares a common boundary with, Lot 597.

36. It is my considered opinion that the degree of change does not accord with the meaning of a boundary adjustment as per my findings above. I consider that the proposed development is not a correction or regularisation of an existing boundary but that it is the consolidation of two lots, and subdivision of the enlarged Lot 579 into two lots. Subsequently, I find that the proposed development is not ‘a boundary adjustment between adjoining lots’ as required under PSLEP cl 4.1E, and therefore that the Court does not have power to grant consent to the development application.

37. 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.

E Washington

Commissioner of the Court

**********

Decision last updated: 17 June 2025