Tomasic v Port Stephens Council [2021] NSWLEC 56

Procedural Posture

Class 1 Appeal Against Refusal of Development Consent for Residential Subdivision / Final Hearing and Determination

Legal Issues

1. 1 ['Whether the proposed subdivision should be refused because it was materially inconsistent with the street layout and transport network requirements of Port Stephens Development Control Plan 2014.' 'Whether less weight should be given to Port Stephens Development Control Plan 2014 because of the timing and process of its amendment or because its provisions were alleged to be unreasonable.' 'Whether the applicants provided sufficient justification for a variation to the street layout under cl D13.2 of Port Stephens Development Control Plan 2014.' 'Whether the proposed subdivision provided a reasonable alternative solution under s 4.15(3A) of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed subdivision would have unacceptable impacts on the endangered ecological community and preferred koala habitat on the site.']

Ratio Decidendi

Consent was refused because the subdivision proposed disconnected private driveways rather than the local street constructed as a bus route through the site required by Port Stephens Development Control Plan 2014, the DCP was entitled to significant weight, the applicants did not justify a variation or provide a reasonable alternative solution achieving the DCP objectives, and the amended subdivision failed to adequately avoid or minimise unacceptable impacts on the Hunter Lowland Redgum Forest endangered ecological community and preferred koala habitat.

Court Disposition

Appeal dismissed and development consent refused.

Orders

• ['The appeal is dismissed.' 'Development application no 16-2019-266-1 for the subdivision of Lot 16 DP32005 known as 4 Kuranga Avenue, Raymond Terrace is determined by refusal of consent.' 'The exhibits except for Exhibits V, X and Y, are to be returned to the party tendering the exhibit.']