What has happened?
In Kingshill Development No 1 Pty Ltd v Port Stephens Council [2025] NSWLEC 1, Justice Pain dismissed an appeal against the refusal of a concept development application for a large residential release area at Kings Hill, near Raymond Terrace. The developer established two errors of law, but they did not change the outcome.
Context
The developer sought concept approval under s 4.22 of the Environmental Planning and Assessment Act 1979 for a residential subdivision, together with a first stage of site preparation works and a conservation area. The Regional Planning Panel refused it, and a Commissioner dismissed the developer's appeal in a 444-paragraph judgment. The refusal was based on several grounds:
potential impacts on native fauna and wetlands;
uncertainty about State infrastructure and a stormwater channel;
inadequate hydrological information; and
site suitability and the public interest.
The developer appealed on 12 grounds.
The decision
Justice Pain found that the Commissioner erred in two respects:
she applied a local environmental plan clause that should not have been treated as engaged; and
she wrongly treated the stormwater channel as "designated State public infrastructure".
All other grounds failed. The Court also held that the Commissioner was entitled to refuse to grant consent subject to "Grampian" conditions (conditions requiring something to happen before development proceeds).
However, the appeal was dismissed. An error of law must be one on which the decision depends. The Commissioner's refusal rested on several independent grounds, including unchallenged findings about inadequate hydrological information. Viewed as a whole, the two errors would not have led to a different result.
How will this affect you?
On an appeal limited to questions of law, establishing an error is not enough. It must be material to the outcome.
Where a refusal rests on multiple independent grounds, each one may need to be overcome.
Concept applications for large release areas need robust technical evidence, particularly on hydrology and biodiversity, from the outset.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.