Vollmer v Port Stephens Council

Legislation Cited: Conveyancing Act 1919 (NSW), s 195
Environmental Planning and Assessment Act 1979 (NSW), ss 1.5(1)(b), 6.2
Interpretation Act 1987 (NSW), ss 8(b), 33
Land and Environment Court Act 1979 (NSW), s 56(1)
Port Stephens Local Environmental Plan 2013, cll 2.6(1), 4.1, 4.1E, 4.6
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cl 2.75

Cases Cited: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126; (1940) 57 WN (NSW) 53; 14 LGR (NSW) 149
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Boast v Eurobodalla Shire Council, unreported, LEC No 20110/91, 22 November 1991, Cripps J
Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16
McCabe & Others v Blue Mountains City Council (2006) 145 LGERA 86; [2006] NSWLEC 176
Randwick Municipal Council v Manousaki (1988) 66 LGRA 330

Texts Cited: Macquarie Dictionary

Category: Principal judgment

Parties: Tony Vollmer (First Appellant)
David Vollmer (Second Appellant)
Port Stephens Council (Respondent)

Representation: Counsel:
A Shearer SC (Appellants)
H Irish (Respondent)
Solicitors:
Bick & Steele (Appellants)
Local Government Legal (Respondent)

File Number(s): 2025/269776

Publication restriction: NIL

JUDGMENT

Nature of appeal and outcome

1. Tony and David Vollmer (the Vollmers) appeal against the decision and orders of a Commissioner dismissing their appeal and refusing their development application for the subdivision of their land at Wallalong. The Vollmers’ appeal, under s 56A(1) of the Land and Environment Court Act 1979 (NSW), is limited to error on a question of law.

2. The Vollmers raise two grounds in the summons commencing the appeal involving the Commissioner’s interpretation and application of cl 4.1E of the Port Stephens Local Environmental Plan 2013 (PSLEP). Clause 4.1E(3) empowers the consent authority to grant development consent to a certain type of subdivision, being the subdivision of land by way of a boundary adjustment between adjoining lots, where cl 4.1(3) of PSLEP would otherwise prevent the grant of development consent because the size of any resulting lot would be less than the minimum size shown on the Lot Size Map in relation to that land.

3. The subdivision of land proposed by the Vollmers would result in a lot that would be less than the minimum size shown on the Lot Size Map in relation to that land. The Vollmers proposed the consolidation of two existing lots and their simultaneous redivision, along new boundaries, into two new lots. One of the new lots resulting from this redivision of the consolidated lot would be less than the minimum lot size shown on the Lot Size Map in relation to the land. The proposed Lot 1 would be 4,000m2, which is less than the minimum lot size of 40ha.

4. In the court below, the critical question was whether the subdivision proposed by the Vollmers met the description in cl 4.1E(3) of PSLEP of being a subdivision of land “by way of a boundary adjustment between adjoining lots”. The Commissioner found that the proposed subdivision did not meet that description. The Vollmers contended that the Commissioner, in so finding, misconstrued the term “boundary adjustment” in cl 4.1E(3) (ground 1) and erred in applying cl 4.1E to the facts of the proposed subdivision (ground 2).

5. I find that the Vollmers have not established that the Commissioner erred in interpreting or applying cl 4.1E of PSLEP so as to find that the proposed subdivision was not a subdivision of land by way of a boundary adjustment between adjoining lots. The appeal should be dismissed with costs.

The development for which consent was sought

6. The Vollmers’ development application sought development consent for the development of the subdivision of land. “Development” is defined in s 1.5(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to include “the subdivision of land”. Clause 2.6(1) of PSLEP provides that land may be subdivided but only with development consent.

7. The particular subdivision of land for which the Vollmers sought development consent involved, first, the consolidation of two existing lots, the larger Lot 579 in DP 1209777 (96.61ha) and the smaller Lot 580 in DP 1160616 (4,491.56m2), and secondly, their simultaneous redivision, along new boundaries, into new two lots, a smaller proposed Lot 1 (4,000m2) and a larger proposed Lot 2 (96.65ha). The smaller existing lot (Lot 580) and the smaller new lot (proposed Lot 1) would not only be different in size (4,491.56m2 and 4,000m2 respectively) and configuration (rhomboid and rectangular respectively), but also in different locations. Lot 580 is located wholly within Lot 579, so that Lot 579 encloses Lot 580 on all sides. Proposed Lot 1 would be located about 140m to the east of Lot 580 on the edge of proposed Lot 2 (the former Lot 579), so that the proposed lots would share only two boundaries.

8. This consolidation of the two existing lots and simultaneous redivision into two new lots would involve subdivision within the meaning of the definition of “subdivision” in s 6.2 of the EPA Act. Section 6.2 provides:

“(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.

Note.

The definition of plan of subdivision in section 195 of the Conveyancing Act 1919 extends to plans of subdivision for lease purposes (within the meaning of section 23H of that Act) and to various kinds of plan under the Community Land Development Act 2021.”

(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.”

9. A “plan of subdivision” is defined in s 195 of the Conveyancing Act 1919 (NSW):

**“**plan of subdivision means a plan that shows—

…

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

10. A “plan of consolidation” is defined in s 195(1) of the Conveyancing Act:

“plan of consolidation means a plan that shows the consolidation of 2 or more existing lots into a single lot, where there is no simultaneous redivision of them into 2 or more new lots, 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.”

11. These definitions reveal that it is the division or redivision of land into two or more parts that constitutes the development of “subdivision” for the purposes of the EPA Act. The consolidation of two or more existing lots into a single lot, by itself, does not involve the development of subdivision, as consolidation is the antithesis of subdivision. Nevertheless, consolidation of two or more existing lots into a single lot can be included as part of the development of subdivision if there is a simultaneous redivision of the consolidated lot into two or more new lots.

12. In the case of the Vollmers’ proposed subdivision, this means that only the simultaneous redivision of the consolidated single lot into two new lots involves the development of subdivision for which development consent is required by cl 2.6(1) of PSLEP.

The prohibition on the grant of development consent for the proposed subdivision

13. The proposed development of the subdivision of land by the consolidation of two existing lots and simultaneous redivision, along new boundaries, into two new lots is regulated by cl 4.1(2) and (3) of PSLEP, which provide:

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

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

14. Clause 4.1(3) of PSLEP, together with s 4.2(1)(b) of the EPA Act, operate to prevent the grant of development consent to a subdivision of land which contravenes the minimum lot size development standard in cl 4.1(3).

15. The Lot Size Map in relation to the land proposed to be subdivided shows the minimum lot size for land in the applicable Zone RU1 Primary Production to be 40ha. Although proposed Lot 2 would satisfy this development standard (being 96.65ha), proposed Lot 1 would fall well short of the development standard as it would be only 4,000m2.

16. Clause 4.6(2) of PSLEP allows for the grant of development consent for development that contravenes a development standard in certain circumstances. However, cl 4.6(6) provides that development consent cannot be granted under cl 4.6 for a subdivision of land in Zone RU1 Primary Production if –

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

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

17. As the proposed subdivision would result in one lot, the proposed Lot 1, that will be less than 90% of the minimum area specified by cl 4.1(3) of PSLEP of 40ha, development consent cannot be granted to the proposed subdivision by dint of cl 4.6(6) of PSLEP.

The availability of cl 4.1E of PSLEP

18. The prohibition in cl 4.1(3) and cl 4.6(6) of PSLEP on the grant of development consent to a subdivision of land in Zone RU1 Primary Production that contravenes the minimum lot size development standard in cl 4.1(3) of PSLEP could, however, be lifted if cl 4.1E of PSLEP applies to the subdivision of the land. Clause 4.1E(2) specifies that cl 4.1E applies to land in Zone RU1 Primary Production, amongst other zones. Clause 4.1E(3) provides:

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

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

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

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

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

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

19. If cl 4.1E(3) does apply, cl 4.1E(4) specifies the matters a consent authority must consider in determining a development application for the subdivision of land under cl 4.1E:

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

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

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

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

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

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

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

20. The central question in the court below was whether cl 4.1E(3) of PSLEP applied to permit the grant of development consent to the proposed subdivision, despite the subdivision contravening the development standard in cl 4.1(3) of PSLEP. For cl 4.1E(3) to apply, the proposed subdivision would need to meet the description of being a subdivision of land “by way of a boundary adjustment between adjoining lots.”

21. The Vollmers argued that the proposed subdivision did involve the subdivision of land by way of a boundary adjustment between adjoining lots, while Port Stephens Council (the Council) argued that it did not. The Commissioner preferred the Council’s construction and application of the phrase “boundary adjustment between adjoining lots” in cl 4.1E(3), finding that the proposed subdivision will not involve a boundary adjustment of any boundary between the existing lots, but instead involved the consolidation of the two existing lots and their redivision into two new lots (at [36]).

The Vollmers’ argument that the subdivision is by way of a boundary adjustment

22. The Vollmers’ primary argument was that the Commissioner misconstrued the phrase “a boundary adjustment between adjoining lots” in cl 4.1E(3) of PSLEP. This is ground 1. The Vollmers’ ancillary argument is that the Commissioner erred in applying her construction of the phrase in cl 4.1E(3) to the facts of the proposed subdivision. The error involved finding that the facts fell outside this statutory phrase when they necessarily fell within it. This is ground 2. The Vollmers’ accepted, however, that the success of ground 2 depends on the Vollmers establishing ground 1.

23. The Vollmers contended that the Commissioner misconstrued the phrase in cl 4.1E(3) of PSLEP by:

(a) adopting the meaning of the words “boundary adjustment” given by Jagot J in McCabe v Blue Mountains City Council (2006) 145 LGERA 86; [2006] NSWLEC 176 at [56] in construing a different provision of a different environmental planning instrument to cl 4.1E of PSLEP; (b) not construing the phrase “boundary adjustment” in light of the purpose of cl 4.1E of PSLEP, as required by s 33 of the Interpretation Act 1987 (NSW); (c) not identifying cl 4.1E of PSLEP as a remedial or beneficial provision that is to be construed so as to give the fullest relief which the fair meaning of its language will allow; (d) not construing the phrase “boundary adjustment” in cl 4.1E(3) in the context of the whole of cl 4.1E, especially subclauses (1),(3) and (4), and the whole PSLEP so as to render the provisions harmonious with each other; and (e) ignoring key aspects of the statutory context against which cl 4.1E was introduced into PSLEP, including Port Stephens Council’s Planning Proposal – Boundary Realignment that proposed the introduction of cl 4.1E of PSLEP and cl 2.75 of Part 2 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 that provides that a realignment of boundaries that will not result in more than a minor change in the area of any lot in Zone RU1 Primary Production is exempt development.

24. The Vollmers contended that, on a proper construction of the phrase “boundary adjustment” in cl 4.1E(3) of PSLEP, the proposed subdivision met the description of being a subdivision of land by way of a boundary adjustment between adjoining lots. Although the mechanism for the subdivision is the consolidation of two existing lots and their simultaneous redivision into two new lots, in substance what is proposed is the movement of the smaller existing Lot 580 eastwards by 140m, so that it is not isolated and land-locked within the larger, existing Lot 579, and will have a slightly more regular shape as the proposed Lot 1. The size of the two lots before and after remains broadly the same. Existing Lot 579 is 96.61ha and will become 96.65ha as proposed Lot 2, while existing Lot 580 is 4,491.56m2 and will become 4,000m2 as proposed Lot 1. These alterations in the size, shape and location of the lots are, in the Vollmers’ submission, within the ambit of a “boundary adjustment.”

25. The Vollmers submitted that the fact that the four boundaries of the proposed Lot 1 will be different to the four boundaries of the existing Lot 580 does not preclude the subdivision being a boundary adjustment. As the Commissioner recognised at [34], “nothing in cl 4.1E directs or limits the degree of adjustment, nor dictates that any point on the existing boundary must remain static.”

26. The Vollmers submitted that the Commissioner’s finding that the degree of change involved in this movement of the smaller lot eastwards “does not accord with the meaning of a boundary adjustment” (at [36]) was founded on the Commissioner’s erroneous interpretation of cl 4.1E of PSLEP as limiting a boundary adjustment to a correction or regularisation of an existing boundary. The Vollmers submitted that a boundary adjustment is not so limited. On a proper construction of cl 4.1E of PSLEP, the degree of change involved in the proposed subdivision does accord with the meaning of “boundary adjustment” in cl 4.1E(3) of PSLEP.

27. In these circumstances, the Vollmers submitted that the Commissioner’s finding that the facts of the proposed subdivision fell outside of the phrase “a boundary adjustment between adjoining lots” in cl 4.1E(3) involved an error on a question of law. Although the finding that the facts fall outside the statutory phrase is a finding of fact, it may reveal an error of law if the facts found are necessarily within the statutory phrase and a contrary decision has been made: Hope v Bathurst City Council (1980) 144 CLR 1 at 8; [1980] HCA 16; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138; 57 WN (NSW) 53; 14 LGR (NSW) 149; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333. The Vollmers submitted that is what occurred here. The facts of the proposed subdivision necessarily fell within the phrase in cl 4.1E(3) but the Commissioner made a contrary decision.

The Council’s argument that the subdivision is not by way of a boundary adjustment

28. The Council submitted that the Commissioner did not err in her interpretation or application of cl 4.1E(3) of PSLEP. On a proper construction of the text of cl 4.1E in the context of PSLEP viewed as a whole, cl 4.1E(3) permits the grant of development consent to a subdivision of land which contravenes the minimum lot size development standard in cl 4.1(3) of PSLEP provided that:

(a) the subdivision is “a boundary adjustment”, that is, an “adjustment” of a boundary (where the singular includes the plural: see 8(b) of the Interpretation Act 1987 (NSW)); (b) the act of “adjusting” a boundary involves questions of fact and degree (see Boast v Eurobodalla Shire Council, unreported, LEC No 20110/91, 22 November 1991, Cripps J, pp 2-3); (c) the subdivision involves boundary adjustment carried out “between”, that is “in the space separating” (Macquarie Dictionary definition 1 of “between”), the lots which are “adjoining lots”; and (d) the subdivision meets the other requirements in cl 4.1E of PSLEP.

29. The Council submitted that the Commissioner did not misconstrue the words “boundary adjustment” in cl 4.1E of PSLEP. The Commissioner sought guidance from Jagot J’s construction of the words “boundary adjustment” in McCabe v Blue Mountains City Council at [56]. The Commissioner referred to the ordinary meaning provided by Jagot J as providing assistance in ascertaining the ordinary meaning of the words “boundary adjustment” in cl 4.1E of PSLEP (at [30]). Although the Commissioner said she did “adopt the ordinary meaning provided by Jagot J” (at [30]), the Commissioner did not blindly apply Jagot J’s construction in construing cl 4.1E of PSLEP. The Commissioner acknowledged the differences noted by the Vollmers between the statutory provision considered in McCabe v Blue Mountains City Council and cl 4.1E of PSLEP but considered the similarities in the phrase between the provisions to be sufficient to adopt the ordinary meaning provided by Jagot J (at [30]).

30. The Council submitted the Commissioner did not adopt a narrow construction of “boundary adjustment” in cl 4.1E, as the Vollmers claimed, but rather focused on the text of the phrase “a boundary adjustment between adjoining lots” in cl 4.1E and gave each word work to do (see the Commissioner’s approach stated in [28] and [29]). The Commissioner found that a “boundary adjustment” involves the alteration of an existing boundary by correction or regularisation of an existing boundary (at [30]). The Commissioner accepted that “nothing in cl 4.1E directs or limits the degree of adjustment, nor dictates that any point on the existing boundary must remain static” (at [34]). Nevertheless, the adjustment must be an alteration of an existing boundary (at [36]). The proposed subdivision did not involve the alteration of any boundary of the existing Lot 580. The Council submitted the Commissioner did not err in so finding.

31. The Council submitted, however, that even if the Commissioner were to be found to have inappropriately applied Jagot J’s construction of “boundary adjustment”, the construction of the phrase in cl 4.1E(3) that the Commissioner reached was nevertheless the correct construction. Either way, the Council submitted ground 1 should be rejected.

32. As to ground 2, the Council submitted that the Commissioner did not err in applying cl 4.1E of PSLEP to find that the proposed subdivision would not be a subdivision of land by way of a boundary adjustment between adjoining lots. The proposed subdivision does not involve the “adjustment” of “a boundary” “between” existing lots which are adjoining lots. This was because the proposed subdivision involved the consolidation of two existing lots and the subdivision of the consolidated lot into two new lots (at [36]). The consolidation of existing Lots 579 and 580 results in the four internal boundaries of Lot 580 being expunged, not adjusted, and the redivision of the consolidated lot into the proposed Lots 1 and 2 results in four new boundaries of proposed Lot 1 and two new external boundaries of proposed Lot 2 (being the boundaries between Lots 1 and 2).

33. The Council submitted that the Commissioner was therefore correct in finding that the degree of change involved in the proposed subdivision does not accord with the meaning of “a boundary adjustment” (at [36]). The Council submitted that ground 2 should also be rejected.

The proposed subdivision is not by way of a boundary adjustment

34. Clause 4.1E of PSLEP does not apply to all subdivisions of land in the zones specified in cl 4.1E(2), only to a subdivision meeting the description in cl 4.1E(3). Clause 4.1E(3) of PSLEP operates to empower the grant of development consent to a subdivision of land that contravenes the minimum lot size development standard in cl 4.1(3) of PSLEP, if the subdivision meets the description in cl 4.1E(3) of being a subdivision of land “by way of a boundary adjustment between adjoining lots where one or more resulting lots do not meet the minimum lot size shown on the Lot Size Map in relation to that land”. This description has three elements:

(a) there must be a subdivision of land within the meaning of that term in s 6.2 of the EPA Act; (b) the subdivision of land must be by way of “a boundary adjustment between adjoining lots”; and (c) the subdivision of land must result in one or more resulting lots not meeting the minimum lot size shown on the Lot Size Map in relation to the land.

35. The central question in this case is whether the subdivision of land proposed by the Vollmers meets this description in cl 4.1E(3). This requires close analysis of what type of subdivision is proposed and whether a subdivision of that type can be characterised as meeting the description in cl 4.1E(3).

36. The subdivision of land proposed by the Vollmers involves the procuring of the registration in the office of the Registrar-General of a plan of subdivision (see s 6.2(2)(a) of the EPA Act) that shows “the consolidation of 2 or more existing lots and their simultaneous redivision, along new boundaries, into 2 or more new lots” (see paragraph (b) of the definition of “plan of subdivision” in s 195(1) of the Conveyancing Act). This type of subdivision does not meet the description in cl 4.1E(3) of PSLEP of being a subdivision by way of a boundary adjustment between adjoining lots. Although the consolidation and redivision of land involved in this type of subdivision occur simultaneously, analytically there are still two stages that need to be evaluated to test whether they meet the description in cl 4.1E(3).

37. The first stage of the consolidation of two or more existing lots into a single lot, by itself, does not meet this description. The consolidation of two or more existing lots into a single lot does not involve either “the division of land into 2 or more parts” (s 6.2(1) of the EPA Act) or the “redivision, along new boundaries, into 2 or more new lots” (paragraph (b) of the definition of “plan of subdivision” in s 195(1) of the Conveyancing Act). There are no “resulting lots” of a consolidation as opposed to a division or redivision of land. Consolidation of two or more lots into a single lot is the opposite of division or redivision of land into two or more lots. As a result of the consolidation of land, there are no longer any “adjoining lots”, the boundaries of which are capable of being adjusted; the existing adjoining lots, with their boundaries between lots, have been extinguished by the consolidation.

38. The second stage of the redivision of the consolidated lot, along new boundaries, into two or more new lots also does not meet the description in cl 4.1E(3) of PSLEP of a subdivision by way of a boundary adjustment between adjoining lots. Of course, the redivision of the consolidated lot does lead to “resulting lots”, one or more of which may or may not meet the minimum lot size shown on the Lot Size Map in relation to the land. But the issue is that the object of the action of redivision is the consolidated lot, not the former existing lots. After consolidation, there are no “adjoining lots”, the boundaries of which are capable of being adjusted by the redivision, as any existing lots that were adjoining were extinguished by the consolidation of the lots into a single lot.

39. These conclusions that the consolidation and redivision of land do not meet the description in cl 4.1E(3) of PSLEP apply notwithstanding that the consolidation and redivision operate simultaneously and that there is no separate registration of a plan of consolidation and then a plan of subdivision. Separate and sequential registration of a plan of consolidation and a plan of subdivision is not required for the separate and sequential, albeit simultaneous, operation of this type of subdivision. For this type of subdivision, there must first be a “consolidation” of two or more existing lots into a single lot before there can be a “redivision” into two or more new lots. There is not simply the “division” of land into two or more parts, as there is with other types of subdivision. The action of “redivision” involves dividing land again into two or more lots. The existing lots to be consolidated are already divided, so that upon consolidation of the existing lots into a single lot, there needs to be a redivision into new lots.

40. Accordingly, a subdivision of land involving the consolidation of two or more existing lots and their simultaneous redivision, along new boundaries, into two or more new lots cannot meet the description in cl 4.1E(3) of PSLEP of being a subdivision of land by way of “a boundary adjustment between adjoining lots”. This conclusion flows from the nature of the subdivision – the consolidation of existing lots into a single lot and the simultaneous redivision into new lots – and not from the meaning or scope of the words “boundary adjustment”. The consolidation of the existing lots into a single lot extinguishes any “adjoining lots” so that the redivision along new boundaries into new lots cannot involve an adjustment of the boundaries of adjoining lots that no longer exist.

41. This would seem to be the dispositive conclusion of Jagot J in McCabe v Blue Mountains City Council at [59]. The subdivision there proposed the consolidation of two existing lots into a single lot and the subsequent subdivision of the consolidated lot into two new lots. Although Jagot J proffered the ordinary meaning of “a boundary adjustment” as being “an alteration of a boundary by correction or regularisation” (at [56]), the reason for the proposed subdivision not being a boundary adjustment was not that the alteration of the boundary did not meet this description but instead that the subdivision involved the consolidation of existing lots and the subsequent subdivision of the consolidated lot into new lots. Such consolidation and subsequent subdivision of the land was not a subdivision for a boundary adjustment (at [59]).

42. The Commissioner was therefore correct in finding that the Vollmers’ proposed subdivision did not meet the description in cl 4.1E(3) of PSLEP of a subdivision of land by way of a boundary adjustment between adjoining lots. The Commissioner’s reasons for reaching this conclusion might not be the same as the reasons I have given, but they are not inconsistent with them.

43. The Commissioner correctly identified that “the exercise of the power to grant consent under PSLEP cl 4.1E is confined to the circumstance where the subdivision is a ‘boundary adjustment between lots’” (at [31]). The quoted phrase comes from cl 4.1E(1), but it is to the same effect as the phrase in cl 4.1E(3) of a “boundary adjustment between adjoining lots”, as the parties agreed (see at [10]). Whilst the Commissioner did accept that “adjustment” of an existing boundary involves “correction or regularisation” of the boundary (see at [30] and [36]), the Commissioner’s finding that the proposed subdivision does not involve a boundary adjustment did not depend on the subdivision not involving such correction or regularisation of an existing boundary. Rather, the Commissioner’s finding depended on the proposed subdivision being “the consolidation of two lots, and subdivision of the enlarged Lot 579 into two lots” (at [36]), accepting the Council’s submission summarised at [33]. The consolidation of the two existing lots, Lots 579 and 580, and the redivision of the consolidated lot along new boundaries into two new lots, the proposed lots 1 and 2, do not involve any adjustment of the boundaries of the existing lots as these lots would have been consolidated, thereby extinguishing the boundaries between those adjoining lots. This is the reason the Commissioner gives for her finding in [36] that “the proposed development is not ‘a boundary adjustment between adjoining lots’ as required under PSLEP cl 4.1E, and therefore that the Court does not have power to grant consent to the development application.”

44. In these circumstances, it matters not whether the Commissioner did or did not err in construing the phrase “a boundary adjustment between adjoining lots” in cl 4.1E(3) of PSLEP in the ways claimed by the Vollmers. On a proper construction of the phrase, the proposed subdivision necessarily falls outside the description of being a subdivision by way of a boundary adjustment between adjoining lots. The Commissioner’s finding that the proposed subdivision did not meet this description did not involve an error of law. This finding did not depend on the Commissioner’s construction of the meaning and scope of the words “boundary adjustment” in that description. Any error in construing those words (if there be error) is not material. The proposed subdivision does not meet the description in cl 4.1E(3) for reasons other than the meaning or scope of the words “boundary adjustment”.

45. For these reasons, the Vollmers have not established that the Commissioner erred in her interpretation or application of cl 4.1E(3) of PSLEP. I reject grounds 1 and 2.

Disposal of the appeal

46. The Court orders:

47. The appeal is dismissed.

48. The appellants are to pay the respondent’s costs of the appeal.

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Amendments

29 October 2025

Replaced "word" with "words" in para [40].