NSWNSWLEC

Kingshill Development No 1 Pty Ltd v Port Stephens Council

[2025] NSWLEC 1

Land and Environment Court (NSW)|2024-05-29|Before: Pain J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2024-05-29

Before

Pain J

Catchwords

[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

Source

Original judgment source is linked above.

Catchwords

[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 Park Residents 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[1996] HCA 6 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Monnock v Pittwater Council (2003) 127 LGERA 66[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[1986] HCA 54 Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1[2014] NSWCA 105 Wehbe v Pittwater Council (2007) 156 LGERA 446[2007] NSWLEC 827 Young v Parramatta City Council (2006) 144 LGERA 193

Judgment (47 paragraphs)

[1]

nicipal Council v Seatainer Terminals Pty 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)

[2]

Solicitors: Colin Biggers and Paisley (Appellants) Submitting appearance (First Respondent) Department of Planning, Housing and Infrastructure (Second Respondent) File Number(s): 2023/00299740

[3]

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

[4]

JUDGMENT

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.
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.
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.

[5]

Section 56A appeal principles

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].

[6]

Site description

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

[7]

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

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].

[8]

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

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.

[9]

Conveyancing Act 1919 (NSW)

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.

[10]

Environmental Planning and Assessment Act 1979 (NSW)

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…

[11]

Port Stephens Local Environmental Plan 2013 (NSW)

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. …

[12]

Appellants' submissions

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.
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.

[13]

Panel's submissions

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.
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.
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?
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.
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].

[14]

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

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.
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.
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.
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].

[15]

Context

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.
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.
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.

[16]

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

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.
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.
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.
In terms of statutory construction principles, all sections of a statute should be given work to do, Pearce and Geddes, Statutory Interpretation in Australia (10th 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].

[17]

Use of land not subdivision

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.
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.
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].
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.

[18]

'Effective subdivision'

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.
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).
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].
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.
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.
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.

[19]

Floodgates?

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.
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.

[20]

Separate use or occupation cannot be division of land

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.
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).

[21]

More context in s 6.2

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.
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.
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.

[22]

No new lots

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.

[23]

Conclusion on Topic 1A

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.
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).
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.

[24]

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

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].
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.

[25]

Appellants' submissions

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.
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.
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.

[26]

Panel's submissions

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.
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.
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.

[27]

Finding on Topic 1B

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).
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).
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.
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.

[28]

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

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].
At [407] the Commissioner stated that the Stormwater Channel was a designated State public infrastructure. The definition of designated State public infrastructure in the PSLEP Dictionary does not include 'stormwater channel'. The definition does include 'State and regional roads'.
The parties agreed the following questions 7-9: Question 7 - assuming clause 6.1(2) of the LEP was engaged for the Concept DA, does it apply to the Stormwater Channel on its own because it is 'designated State public infrastructure' (as defined)? The Second Respondent says that the question does not arise as the matter was not raised by the Appellants before the Commissioner Question 8 - should the Commissioner on appeal characterise the Stormwater Channel as 'State and regional roads' within the definition of designated State public infrastructure? The Second Respondent says that the question does not arise as the matter was not raised by the Appellants before the Commissioner Question 9 - if it is assumed the answer to question 8 is 'yes', is the decision of the Commissioner to characterise it as a stormwater channel a decision on a question of fact which is not appealable? The Second Respondent says that the question does not arise as the matter was not raised by the Appellants before the Commissioner

[29]

Can issue be raised?

The initial issue that arises based on the above responses of the Panel is whether these questions can be posed at all. The Panel submitted these questions do not arise on appeal as they were not matters raised by the Appellants before the Commissioner. The Appellants submitted in turn that the Panel had not contended that the Stormwater Channel did come within the definition of designated State public infrastructure in its contentions before the Commissioner and consequently was not a matter addressed by the Appellants at first instance. The Appellants therefore submitted that no proper basis exists for the Panel to now allege that issue was not raised by the Appellants because the Panel's approach before the Commissioner did not suggest it need be considered.
Was this issue raised in the Class 1 appeal? The parties' arguments required careful consideration of the contentions, the final submissions of the parties before the Commissioner inter alia. On balance the issue was not put squarely to the Commissioner by the Panel and was not obviously a matter which the Appellants can be expected to have addressed, and they did not. Ground 3(b) should therefore be considered.

[30]

Substantive issues in ground 3(b)

I have found above that cl 6.1 of the PSLEP does not apply to the Concept DA so that strictly speaking this ground need not arise as the necessary trigger for certification has yet to arise regardless of how designated State public infrastructure is considered. It is obvious and agreed that the Stormwater Channel is not explicitly within the PSLEP Dictionary definition of designated State public infrastructure which refers to State and regional roads inter alia.
There is no dispute that the Stormwater Channel was intended to drain the Pacific Highway interchange road works which, it is agreed, are State and regional roads and therefore designated State public infrastructure. The Panel submitted that the channel was ancillary to and a necessary component of those works. Properly characterised the Stormwater Channel was therefore designated State public infrastructure. On the Panel's case the issue of characterisation arises relying on the well known authority of Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 which considers relevant principles for characterising development at [27]-[36] in the context of a general query of use of land requiring a purpose. In other words, not addressing an explicit statutory definition.
Whether the Commissioner's approach is available is a matter of statutory construction. Using characterisation as the Panel does to submit that development which is not within the express statutory definition can be included is not an approach consistent with statutory construction principles, which apply equally to the construction of EPIs, Cavanagh at [31]. As the Appellants submitted the definition in the PSLEP is exclusive not exhaustive in its drafting. There was no requirement for a certificate for the Stormwater Channel because it's not defined as designated State public infrastructure.
Questions 7, 8, 9 which overlap can be answered no, no and does not arise. That addresses the issue identified in Topic 1C/ground 3(b) and the Appellants are successful.
Whether the location of the Stormwater Channel is sufficiently certain as a wider question of merit remained for determination by the Commissioner.

[31]

Topic 2: Stormwater Channel (grounds 4, 5)

The two further grounds of appeal in relation to the Stormwater Channel are: 4. The Commissioner erred in law in misconceiving the Concept DA by finding that the Stormwater Channel in its preferred location was a fundamental component of the Concept DA [422], when no consent for the channel was sought, nor was it part of the concept proposal. 5. The Commissioner erred in law in finding that the channel was uncertain because of its supposed environmental impact [415] - [418] but she failed to take into account a relevant consideration in reaching that conclusion, that is, the extensive assessment of its environmental impact in the draft Part 5 application.

[32]

Extracts from judgment

Kingshill states at [407]-[424]: Stormwater Diversion Channel [407] The channel is a designated State public infrastructure that is required to divert stormwater from the future development footprint of the KHURA, away from the Grahamstown Dam, to protect its water quality. The channel is subject to a separate Part 5 (EPA Act) approval, not yet applied. [408] The location of the (stormwater drainage) channel relied on by the application is described in the draft REF that is in evidence, as being preferred along an alignment predominantly east of the Pacific Highway. This is extensively on HWC [Hunter Water Corporation] land. This infrastructure is intended to direct treated stormwater runoff from the eastern precincts on the site, away from the Grahamstown Dam in flood events up to 0.2% AEP, and then towards Wetland 804. It is considered essential infrastructure in the residential development of the site/KHURA. [409] The experts do not agree that the PH interchange, as described in the draft REF, can be constructed as designed, without the channel being constructed. The experts also do not agree whether there are likely to be unacceptable ecological impacts resulting from the channel design relied on by the application, based on the lack of ecological assessment on the HWC land. This is raised as an issue raised by HWC in their communications with the applicants in assessing the application. It remains in dispute whether the concept proposal is reasonable without a more definitive alignment of the channel. [410] According to Mr Grech, the construction and completion of the PH interchange could proceed without (independently of) the channel being constructed. Also, the channel alignment relied on in the concept proposal, described as option (4) in the draft REF, was the preferred option of (the applicants and) the working committee that included HWC, and which reviewed the alignment options as part of the REF process. [411] The experts agree there is a requirement for the channel in the (future) development of the site and KHURA. They however dispute whether the channel could or should ultimately be located (partially) on the applicants' land, as posed in option 3 of the draft REF. This option (3) would result in a substantial loss of land from the proposed eastern precincts, and would require a modification to the concept proposal to support future development. [412] The indicative internal design of stormwater infrastructure, described in the concept proposal to service the site, relies for the eastern precincts, on the preferred location of the channel, being option 4 in the draft REF. The concept proposal informs future development application/s, that will detail the design of appropriate water management strategies such as rainwater harvesting, diversion, biofiltration and bioretention basins to manage stormwater, and which are supported by the channel. [413] It is not disputed by the experts, and I concur, that there is sufficient area of land within the (eastern) precincts to accommodate the required stormwater management infrastructure, and that the application has appropriately considered indicative locations for the internal management of stormwater. [414] The issue however relates to the uncertainty in the ultimate location and design of the channel, and whether the channel located predominantly on HWC land addresses the requirements of cl 6.1 of the PSLEP. [415] Although the (Part 5) approval for the channel does not form part of the application, in consideration of s 4.15(1) of the EPA Act, the Court must consider the likelihood of impact resulting from a concept proposal relying on the channel in its proposed alignment. [416] HWC raised a concern regarding the location of the preferred (option 4) channel alignment in a letter dated 8 December 2022 (Exhibit 5). This letter was provided in response to their review of the application, draft REF and a draft biodiversity assessment by Arcadis, dated September 2019. Pursuant to s 5.16(3) of EPA Act, HWC is a relevant authority that must be consulted, and their issues had regard to, prior to (Part 5) approval of the channel infrastructure. [417] HWC are concerned by the draft nature of the documents that inform the concept proposal and that their issues raised previously, specifically with regards to the potential for impact to threatened species and biodiversity values have not been sufficiently addressed. In this letter, HWC remains unsatisfied that "environmental impacts arising from the construction and operation of the stormwater channel have been avoided, minimised, mitigated and offset to the extent that they are acceptable". At the date of the hearing, HWC had not provided their in-principle support to the preferred alignment (option 4) of the channel. [418] In consideration of the evidence, I assess that there is reasonable uncertainty with regards to the likely location and ultimate design of the channel, and that this uncertainty impacts a functional element of the concept proposal. The location and design of the channel supports the development of the site and KHURA. The unassessed potential of environmental impact to ecological habitats around the Grahamstown Dam, based on the preferred channel location, is unreasonable. I therefore cannot be satisfied that the site is suitable for development on the site consistent with the concept proposal and relied on by the application, pursuant to s 4.15(1)(c) of the EPA Act. [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.

[33]

Finding on Topic 2

Both grounds 4 and 5 are arguably directed to findings of fact which do not give rise to an error of law which can be considered in this appeal.
Addressing the Appellants' submissions nevertheless, in relation to ground 4 Kingshill at [407]-[418] considers expressly the Stormwater Channel. Its description as designated State public infrastructure at [407] which must mean for the purposes of cl 6.1 of the PSLEP is immaterial given its provision separately from the PSLEP is important to be considered in a merit assessment. At [415] the Commissioner identifies that the Stormwater Channel is not part of the Concept DA and that s 4.15(1) of the EPA Act requires the consideration of the likelihood of impact resulting from the Concept DA relying on the Stormwater Channel in its preferred alignment (option 4). A fair reading of Kingshill shows the Commissioner was well aware that the Concept DA did not include the Stormwater Channel. To describe the Stormwater Channel as a fundamental component given this context is a statement of the obvious, not an error of fact giving rise to an error of law. This ground unreasonably adopts a fine-tooth comb approach to the judgment.
Ground 5 refers to the Commissioner erring in law because of the way she considered the channel's environmental impact at [415]-[418]. Part of that uncertainty arose from the possible location of the Stormwater Channel, including other than option 4 on HWC land which was the basis of the Concept DA. If I have understood the Appellants' submissions correctly the Commissioner should not have considered any of the evidence relied on by the Panel concerning the possible path of the Stormwater Channel being other than built in accordance with option 4 on HWC land (as described at [408]) because that is what the Concept DA was based on. That the Panel relied on the letter from HWC expressing concern about the location of the Stormwater Channel on HWC's land and the lack of environmental assessment undertaken should presumably not have been presented to the Commissioner at all, which submission I would not accept given the nature of the issues raised in the merit appeal. Further expert evidence was called by both parties which discussed the issue of the location of the Stormwater Channel. At [411] the Commissioner identified that the experts' evidence before her disputed whether the Stormwater Channel could or should be located as per option 3 being partially on the Appellants' land. If built, option 3 would result in a substantial loss of land from part of the Appellants' proposed precincts. Mr Grech the Appellants' planner accepted in oral evidence before the Commissioner that if option 3 rather than option 4 was ultimately required that would affect the planning for the interchange and part of the Kingshill development area.

[34]

Topic 3: Biodiversity (ground 6)

Ground 6 alleges: 6. The Commissioner erred in law in finding that the application involved a likely significant effect on 3 threatened species under former s. 5A(2) of the EPA Act and would therefore likely cause an adverse environmental impact under s. 4.15(1)(b) of the Act, when each of those findings was based upon her misconstruction of s. 5A(2)(e) by finding that there was critical habitat for each species on the land which would be lost or fragmented and therefore the proposal would likely have an adverse effect on the life cycle of the species under s. 5A(2)(a) or their habitat under para (d). No critical habitat was present on the land and there was no evidence to the contrary. The Commissioner's conclusions for the Koala are at [257] and [258], for the Phascogale at [290] and for the Babbler at [326]. The judgment is replete with other references to critical habitat throughout the findings concerning biodiversity, making the legal error as to the presence of such habitat pervasive and influential in reaching her ultimate findings [167], [177], [178], [181], [184], [185], [190], [191], [195], [196], [201] (flora), [213], [215], [217], [218], [219], [220], [221], [222], [224], [232], [235], [238], [244], [248], [249], [252], [254] (koala), [263], [267], [269], [270], [271], [272], [273], [278], [282], [283], [284], [285], [287] (phascogale), [301], [302], [305], [306], [310], [315], [316], [317], [318], [321], [324] (babbler).
The parties agreed before the Commissioner that the applicable law in effect in relation to threatened species, populations or ecological communities was s 5A of the EPA Act as at 24 August 2017. When the Concept DA was lodged with the Council the Threatened Species Conservation Act 1995 (NSW) (TSC Act) had been repealed and replaced by the Biodiversity Conservation Act 2016 (NSW) (BC Act) which came into effect 25 August 2017. As the Site formed part of the Port Stephens Local Government Area, an identified 'interim designated area', the Concept DA was deemed a pending or interim planning application consistent with Pt 7 of the Biodiversity Conservation (Savings and Transitions) Regulation 2017 (NSW) (Savings Regulation). By virtue of transitional provisions under regs 27 and 28 of the Savings Regulation and Sch 9 of the BC Act former relevant provisions of the TSC Act and EPA Act were engaged in consideration of the Concept DA. Consequently s 5A of the EPA Act applied. Section 5A stated as follows: 5A Significant effect on threatened species, populations or ecological communities, or their habitats (1) For the purposes of this Act and in particular the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats: (a) each of the factors listed in subsection (2), (b) any assessment guidelines. (2) The following factors must be taken into account in making a determination under this section: (a) in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction, (b) in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction, (c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed: (i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or (ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction, (d) in relation to the habitat of a threatened species, population or ecological community: (i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and (ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and (iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality, (e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly), (f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan, (g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.

[35]

Appellants' submissions

The Appellants submitted that the Commissioner repeatedly found and evaluated environmental impacts by reference to critical habitat for each community or species considered. No contention identified that critical habitat as defined by Pt 3 of the TSC Act was on the Site, no ecological expert asserted that there was any such critical habitat, and no submission was put to the Commissioner that there was any such habitat.
The Commissioner clearly appreciated that critical habitat was a distinct statutory category as express reference was made to s 5A(2)(e) of the EPA Act in the evaluation of the species of concern for koala, phascogale and babbler. It cannot be reasonably suggested that the Commissioner's use of critical habitat was not the statutory term. In finding adverse impacts in relation to the koala, phascogale and babbler, the Commissioner misconstrued the Act and misapplied crucial habitat when none existed.
In reply, the error is not an infelicitous use of the term (which might be accepted in a different context if it was used just once), nor involves an impermissible 'fine-tooth comb' approach to reading of the judgment.

[36]

Finding on Topic 3

Having read the lengthy judgment of the Commissioner on the topic of the assessment of threatened species, populations or ecological communities I essentially accept the Panel's submissions. Kingshill must be read as a whole and fairly. When this is done numerous references to critical habitat were clearly intended to use critical in a general plain English sense of important. Notwithstanding the frequent use of the term, the Commissioner at no point made any discrete finding that a relevant part of the Site included habitat declared to be critical habitat under Pt 3 of the TSC Act. The absence of any such finding lends significant weight to the inference that the Commissioner was not aware that the term critical habitat in s 5A(2)(e) of the EPA Act was a distinct statutory category having the same meaning as in the TSC Act.
The material before the Commissioner was voluminous, and included documents such as Department of Environment and Climate Change guidelines which include reference to the statutory term critical habitat. That such material was before the Commissioner does not mean that the Appellants' submission that she must have been aware of its statutory meaning should be inferred given that the parties did not refer expressly to critical habitat in their submissions as this did not arise as a matter of fact.
References to critical habitat in the context of endangered ecological vegetation communities and threatened flora species is further support for finding that the Commissioner was not using critical habitat in the terms of the statutory definition which relates to fauna.
Further, any such finding was not material to the Commissioner's overall consideration and finding about the impacts on threatened fauna. When read fairly as a whole the mistaken references to critical habitat in the context of s 5A are not vitiating. No basis to characterise the use of the term as a deliberate use in a statutory sense exists. The Appellants take no further issue with the Commissioner's determination of the effects on the koala, phascogale and the babbler pursuant to other subsections under s 5A(2) of the EPA Act. These findings were open and available on the evidence. Accordingly, even considering the Commissioner's inadvertent reference to the term critical habitat, it cannot be said that there may have been a different result.

[37]

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

Whether there were adverse impacts to wetlands associated with the Site resulting from the Concept DA was considered at [332]-[374] of Kingshill, the Commissioner concluding that she was not satisfied the Site was suitable for the development as conceptualised because she was not satisfied the Concept DA sufficiently addressed the likelihood of impact to the environment associated with the wetlands in or in the vicinity of the Site. The Commissioner considered wetlands 802, 803 and 804 from [344]-[374]. As set out in Kingshill, coastal wetland 803 is on the Site in its entirety. Wetland 804 is located to the south and east of the Site, an area known as Irrawang Swamp. Wetland 802 is a coastal wetland located to the west of the Site within the Williams River floodplain. The Commissioner had evidence before her from hydrological engineers Dr Martens for the Appellants and Ms Collier for the Panel.
Two controls were considered, the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) and cl 7.9 of the PSLEP. Section 2.8 of the SEPP Resilience sets out provisions for the granting (refusal) of development consent on land identified as 'proximity area for coastal wetlands'. The objective of cl 7.9 is to ensure that wetlands are preserved and protected from the impacts of development. The clause applies to land identified as 'Wetland' on the Wetlands Map (attached to the PSLEP). A consent authority must consider whether or not the development is likely to have any significant adverse impact on the surface and groundwater characteristics of the land, including water quality, natural water flows and salinity, inter alia. Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that, (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided, the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised, the development will be managed to mitigate that impact.
Ground 7 states: 7. The Commissioner erred in law in finding that the groundwater assessment was not based on any scientific data that is specific to the site [364], when there was no evidence for that finding. In fact, the groundwater assessment relied on data that was site-specific.

[38]

Finding on ground 7

On one view ground 7 is arguably a non-reviewable finding of fact by the Commissioner based on the evidence before her. I will nevertheless consider the ground.
Kingshill considered the lengthy topic of whether there were adverse impacts to wetlands associated with the Concept DA at [332]-[374]. As is clear from the extracts of Kingshill set out above, [344]-[357], [361]-[374], hydrological issues were important in the assessment of the environmental impact of what was proposed. The criticisms of the Commissioner's findings in Topics 4 and 5 are limited in light of the scope of what was considered by her and about which she drew conclusions so that grounds 7, 8, 9 do not criticise all of her substantial findings on hydrology, an area in which she has acknowledged expertise.
As the oral evidence summarised above in [135] makes clear Dr Martens' evidence about the report attached to the joint expert report was based on a hydraulic conductivity model that was hypothetical and not tested by actual site-specific data. The Appellants' description of an absence of local scientific data being a wrong conclusion overlooks the evidence before the Commissioner.
The Commissioner found at [364] that 'the groundwater assessment supporting the application is simplistic, and not founded on any scientific data that is specific to the site. This assessment appears as an oversight, a "preliminary advice", and primarily provided in response to the joint expert conference process.' When the transcript is viewed and the evidence before her as identified in Kingshill considered the Commissioner's conclusion that the groundwater assessment of the Appellants was simplistic was a view she was able to reach in her assessment. Reading her judgment fairly and without applying a fine-tooth comb approach, there is no error in referring to lack of any scientific data specific to the Site.
The Commissioner ultimately preferred the evidence of Ms Collier that there was insufficient local data about potential impacts to enable adequate assessment of the Concept DA.
No legal error is disclosed in ground 7 by these findings of fact based on (lack of) evidence before the Commissioner.

[39]

Finding on ground 8

The Appellants submitted that the Commissioner made an irrelevant inquiry which extended the assessment of impact beyond what was enabled and required by s 4.22(5) because the Commissioner impermissibly considered impact from future development. The question posed in ground 8 distinguishes between 'the impact of carrying out the concept proposals on wetlands' with 'assessing impact of the concept proposals'. That distinction is a distinction without a difference. In any event as the Panel submitted there was no suggestion that the Commissioner did not have to consider the impact of the Concept DA on wetlands as part of the analysis required by s 4.15(1), see NCV Enterprises at [42]-[50]. Kingshill at [370]-[371], amongst numerous other similar references in the judgment, read fairly indicates that the Commissioner knew that she was assessing the Concept DA only.
The Appellants' implicit or explicit complaint made in relation to several grounds of appeal including ground 8 was that the Commissioner impermissibly considered more detail than was legally necessary, because the Appellants were putting forward a Concept DA and the level of detail provided should have been considered sufficient by her, and by inference the Panel which raised numerous contentions alleging lack of detail rendering assessment of impact insufficient. The Commissioner was criticised on the basis that she assessed the Concept DA by including works which would be the subject of future DAs because she considered the Panel's submissions about the lack of detail provided and considered the expert evidence adduced to that effect. If the absence of detail is a consequence of the use of the Concept DA as permitted by s 4.22 then the s 4.15 assessment must be assessed as is, according to the Appellants. I do not accept these submissions as that would mean a consent authority would not be able to raise insufficient detail being provided as a criticism of a concept DA made under s 4.22 which impermissibly narrows the assessment required by s 4.15(1). As NCV Enterprises emphasised, a concept DA remains a DA like any other made under the EPA Act.
It is settled law that a concept DA must be able to be assessed adequately under s 4.15(1) per Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 at [44], [46], [53]-[56] (Basten JA with Giles JA and Macfarlan JA agreeing), Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 at [6]-[8]. A concept DA that is too conceptual cannot be adequately assessed, a somewhat obvious observation but necessary given the nature of the Appellants' submissions concerning the appropriate level of detail being necessarily determined by an applicant as I understood what was being submitted.

[40]

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

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

[41]

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

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].
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.

[42]

Appellants' submissions

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.
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).
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).
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.
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.

[43]

Finding on Topic 6

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.
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.
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.
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.

[44]

Overall conclusion on outcome of the appeal

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.
As stated by Moffitt P in Leichhardt Municipal Council v Seatainer Terminals Pty 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.
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.

[45]

Costs

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.

[46]

Order

The Court orders: 1. Appeal no 2023/299740 is dismissed. 2. Costs reserved.

[47]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 January 2025

Kingshill Development No 1 Pty Ltd v Port Stephens Council

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