Couri v Wingecarribee Shire Council

Parties: George Couri (Applicant)
Wingecarribee Shire Council (Respondent)

Representation: Counsel:
D Ubiparipovic (Solicitor) (Applicant)
A Foley (Solicitor) (Respondent)
Solicitors:
HWL Ebsworth (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2025/00287809

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) following development consent granted by Wingecarribee Shire Council on 4 March 2025 for development application DA25/0560 for a boundary adjustment and consolidation of three existing lots into two resultant lots at 421 Myra Vale Rd, Wildes Meadow NSW 2557 (the DA).

2. The consent granted by the Council approved the DA, subject to certain deferred commencement conditions to which the Applicant in this matter, Mr George Couri, objects.

3. To this end, on 28 July 2025, the Applicant filed an appeal with the Court, appealing against the imposition of deferred commencement condition (4) at Schedule 1 of the conditions of consent to the DA.

4. On 31 October 2025, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), at which I presided.

5. Prior to the conciliation conference, the parties reached agreement on the matters in contention, and a signed agreement was filed with the Court on 20 October 2025, in accordance with s 34(10) of the LEC Act.

6. The parties ask me to uphold the appeal and grant conditional development consent to the development application according to terms set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

9. The development application, lodged on 3 October 2024, is supported by written consent of the owner. The Council advertised the development application between 17 and 31 October 2024, in response to which one submission was received.

10. The site is located within an area identified by the Wingecarribee Local Environmental Plan 2010 (WLEP), as C3 Environmental Management in which the proposed subdivision and boundary adjustment is permitted with consent.

11. A minimum lot size standard applies to the area. The relevant map at cl 4.1(2) of the WLEP prescribes a minimum lot size of 40 ha as shown on the WLEP Lot Size Map, and cl 4.1(3) of the WLEP provides that the size of any lot resulting from a subdivision of land to which cl 4.1 applies, is not to be less than the minimum size shown on the Lot Size Map. Relevantly, the proposed Lot 1 does not comply with the minimum lot size prescribed by cl 4.1(2) of the WLEP, having an area of 10.12 ha. However, cl 4.2B of the WLEP provides an exception to cl 4.1(3) of the WLEP and allows subdivision that results in a lot below the minimum lot size, provided certain exceptions apply.

12. The parties agree, and I am satisfied, that consent may be granted to the proposed development in accordance with cl 4.2B(3) for the reasons that follow:

13. Firstly, the development proposes a decrease in the number of lots, being three lots into two lots, satisfying cl 4.2B(3)(a) of the WLEP.

14. Secondly, the development application proposes no increase in the number of dwellings that may be erected on any of the lots, beyond that which is already approved, and noting the yurt building located on proposed Lot 2 has been decommissioned, satisfying cl 4.2B(3)(b) of the WLEP.

15. Thirdly, the development application does not result in a lot that is less than 2 hectares, satisfying cl 4.2B(3)(c) of the WLEP.

16. Additionally, the parties provide the following evidence that those matters that are required to be considered at cl 4.2B(4) of the WLEP have been considered:

17. The proposed development does not alter the existing uses of surrounding land, as both proposed Lot 1 and Lot 2 are suitable for residential use without affecting neighbouring properties, and will not impact the predominant land use in the area being a rural precinct with residential dwellings;

18. The proposal is not incompatible with the adjoining land use zones, as both sides of Myra Vale Road are mapped Zone C3 Environmental Management and will not result in any conflicts with existing or permitted land uses and no specific measures are needed to avoid incompatibility;

19. Finally the proposal will not adversely affect the environmental values or agricultural viability of the land, maintaining its potential for future development or small-scale agricultural use; and will not result in any negative visual impacts to the surrounding area.

20. Clause 4.2A of the WLEP also applies to the Site as the DA includes an approved building envelope that relates to consent DA20/0331 granted by the Court in Lasovase Pty Ltd v Wingecarribee Shire Council [2021] NSWLEC 1316 on 2 June 2021, for the erection of a dwelling on Proposed Lot 1.

21. Under cl 4.2A(4)(a) of the WLEP, development consent may be granted for a new dwelling in the C3 Environmental Management zone if it replaces an existing, lawfully erected dwelling. In this case, the proposed dwelling approved by DA20/0331, replaces the existing Yurt building, that has been decommissioned.

22. The agreed conditions of consent require the modification and surrender of consents granted prior, the decommissioning of the yurt building and the physical commencement of the consent cited at [14].

23. On this basis, I am satisfied that the DA and those conditions of consent, satisfy all jurisdictional matters required to be considered under the WLEP.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. I have considered whether the land is contaminated in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazard) 2021. On the basis of the long history of agricultural use associated with the site, I am satisfied the site can be made suitable for the purpose for which development is proposed to be carried out.

State Environmental Planning Policy (Biodiversity & Conservation) 2021

19. The site is located within the Sydney Drinking Water Catchment. As such Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site.

20. As the DA seeks consent for a paper subdivision only, I accept that the proposal does not impact the regulated catchment, water quantity, quality or aquatic ecology of surrounding waters or have any adverse impacts under Ch 6 of the Biodiversity & Conservation SEPP.

Biodiversity Conservation Act 2016 (NSW)

21. The Site is identified as land containing Biodiversity Values on the Biodiversity Values Map and Threshold Tool. However, for reasons that are virtually identical with those at [20], I am satisfied that the DA is for a paper subdivision only and no vegetation clearing is proposed. Therefore, the biodiversity offset scheme threshold under Part 7 of the Biodiversity Conservation Act 201**6 (NSW) is not triggered by the DA.

Rural Fires Act 1997 (NSW)

22. As the Site is mapped as bushfire prone land and the Proposed Development is classified as a Special Fire Protection Purpose under s 100B of the Rural Fires Act 1997 (NSW), the Applicant relies on a Bushfire Hazard Assessment, dated 25 September 2024, prepared by Harris Environmental Consulting.

23. The proposal was referred to NSW Rural Fire Service (RFS), and a Bushfire Safety Authority issued 22 October 2024, incorporated in the agreed conditions of consent.

Conclusion

24. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

25. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Orders

26. The Court orders that:

27. The appeal is upheld.

28. Development Application DA25/0560 for the boundary adjustment and consolidation of three lots into two lots at 421 Myra Vale Road, Wiles Meadow NSW 2577, is determined by a grant of consent subject to conditions set out in Annexure A to this agreement.

T Horton

Commissioner of the Court

Annexure A (784 KB, pdf)

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