Muscat Developments Pty Ltd v Wollondilly Shire Council

Texts Cited: NSW Rural Fire Service, Planning for Bush Fire Protection (November 2019)
Wollondilly Development Control Plan 2016

Category: Principal judgment

Parties: Muscat Developments Pty Ltd (Applicant)
Wollondilly Shire Council (Respondent)

Representation: Counsel:
J Koprivnjak (Solicitor) (Applicant)
C Norton (Respondent)
Solicitors:
Shaw Reynolds Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2025/27723

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of development application DA/2024/899/1 (DA) by Wollondilly Shire Council (Council). The DA seeks development consent for a two lot Torrens Title subdivision over Lot 5 DP260390, also identified as 115 Mount View Close, Razorback (site).

Conciliation and agreement between the parties

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. The conference was held on 25 November 2025. Prior to the conference, the parties had come to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the DA, as amended, in accordance with agreed conditions.

Pre-requisites to the exercise of the function to grant development consent

3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

4. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [63], [65]). Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties' agreed jurisdictional statement, received on 21 November 2025 (JS) and a supplementary statement received on 25 November 2022 (SJS).

Note on relationship between the DA and other development consents and Court proceedings

5. In this instance, while the DA is for subdivision only, conditions of consent include, in particular, certain requirements relating to the provision of access and asset protection zones (APZs) to meet the requirements of Planning for Bushfire Protection 2019 (PBP). These requirements align with general terms of approval (GTAs) issued by the Rural Fire Service (RFS).

6. Section 4.15(1) of the EPA Act establishes the matters for consideration in the evaluation of development applications. Of particular note for me here is subs 4.15(1)(b) which point to the need for a consent authority to consider “the likely impacts of that development”. The caselaw is quite clear that likely impacts of a development are not limited to the impacts of the proposal for which consent is sought in the development application itself: Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 at [34].

7. As “matters for consideration”, to consider the likely impacts of development do not necessarily involve, or require, jurisdictional findings relevant to a s 34 agreement judgement. However, because of some relevance to later findings in this judgement, and because of direct pertinence to the question of the consideration of “the likely impacts” of the development, in this instance I wish to draw some attention to other development consents and a Class 4 Court proceedings which have a relationship to the proposal. Here I am summarising particulars explained by the parties in both the JS and SJS.

Consent orders in relation to certain Class 4 proceedings in this Court

8. At Annexure A to the JS, the parties provided copies of a set of orders made by consent to resolve a number of Class 4 proceedings, in this Court, relating to the site. Among other things, these orders set in place particular requirements to upgrade a roadway within the site linking Mount View Close (at the site’s northern boundary) and Remembrance Driveway (at the site’s southern boundary). The parties advise that there is a legal obligation on the applicant to carry out these works and, as such, no additional assessment is involved. Expert advice in the current proceedings has established that the required roadworks under these consent orders are sufficient to satisfy RFS requirements in relation to the link road between the site’s northern and southern boundaries (Joint Report Bushfire Experts (JRBE) filed 28 October 2025 p 4). The roadworks are depicted in drawings known as the “PS37 plans” which were annexed to the JRBE.

Equestrian centre consent

9. In Muscat Developments Pty Ltd v Wollondilly Shire Council [2022] NSWLEC 1663, the Court made orders granting consent for an Equestrian Centre on the site. The Equestrian Centre Consent (JS Annexure B) grants consent for establishment of an Equestrian Centre on the lower (southern) portion of the site, including (inter alia) certain internal driveways. The Equestrian Centre Consent is referred to in agreed Condition 19 which requires that remediation works approved under that consent be completed prior to the release of the subdivision certificate associated with this DA.

Secondary Dwelling Consent

10. Development consent for a secondary dwelling has been granted on the site (JS Annexure C). This consent authorises construction of a secondary dwelling near the northern entry to the site on Mount View Close. The approved plans include a roadworks plan (PS17-D100 dated 31 January 2023) which provides for construction of an access driveway from the existing access road to the secondary dwelling. The Secondary Dwelling Consent also requires the provision of APZs and contains requirements for property access roads in accordance with PBP. The parties advise that the construction of the access driveway, and the provision of APZs, was assessed at the time of grant of the Secondary Dwelling Consent. The carrying out of these works is not an impact of the subject development for subdivision.

Assessing residue likely impacts of this proposal

11. Agreed consent conditions to the DA before me require completion of the link road (under the consent orders and in accordance with subsequent agreed engineering drawings) and other roadworks associated with the secondary dwelling consent, prior to the issue of a subdivision certificate. There are very limited further requirements associated with the grant of consent for subdivision in this DA which have not been the subject of impact evaluation or Court orders. The parties advise that these include certain minor accessway provision and an APZ around an existing dwelling. The parties advise and I accept that (JSS par 17):

… it is not anticipated that any vegetation clearance will be required to satisfy the conditions, save for that already authorised by the Existing Approvals, and that required to be carried out as part of the Consent Roadworks. Accordingly, no additional impact arises in respect of impact on vegetation by reason of the grant of consent for subdivision, as any impacts that might occur in carrying out roadworks have already been approved.

12. Further, in relation to an APZ around the existing residence, the parties note that the area around this dwelling is already highly disturbed and is mostly grassland, with the reference assessment indicating that (JSS par 21):

Continued management of existing grassed or cleared areas is all that is required to provide the asset protection zones relied upon in this assessment and no tree removal is required to establish any asset protection zones… …

Ongoing maintenance of existing managed grassed areas is only required.”

13. I accept the parties’ advice that (JSS par 23):

Based on the above matters, the Court may be satisfied that impacts relating to: a) the upgrading of roads on the Site; and b) provision of APZs, are addressed.

Integrated development

14. The parties advise that the DA is integrated development for the purposes of s 4.46 of the EPA Act, as the proposal would also require approvals under:

15. Section 91 of the Water Management Act 2000 (NSW), in relation to the need to obtain a controlled activity approval from the Natural Resource Regulator for works within waterfront land.

16. Section 100B of the Rural Fires Act 1997 (NSW), in relation to the need to obtain a bush fire safety authority from RFS.

17. Section 90 of the National Parks and Wildlife Act 1974 (NSW), in relation to the need to obtain an Aboriginal heritage impact permit from Heritage NSW within the Department of Climate Change, Energy, the Environment and Water (DCCEEW).

18. The parties advise and I accept that subsequent advice from the Natural Resources Access Regulator has indicated that a controlled activity approval was not required. It is the RFS requirements (relating to provision of access and APZs around buildings) that are the point of interest in much of the discussion above (at [5]-[13]). In any event, GTAs have been obtained from both of the other approval bodies and factored into consent conditions.

State Environmental Planning Policy (Resilience and Hazards) 2021

16. Pursuant to s 4.6, a consent authority must be satisfied that appropriate consideration has been given to whether the land is contaminated, the suitability of the land to the proposed development and whether satisfactory measures are put into place to remediate the land should it be required to do so.

17. As indicated above, the parties advise that the site has the benefit of a development consent in relation to an Equestrian Centre, under which the site is to be remediated to facilitate that use. The parties’ agreed proposed Condition 19 (see Annexure A) provides that prior to the issue of the subdivision certificate the Council is to be provided with a Site Audit Statement confirming that remediation works approved under the Equestrian Centre Consent have been implemented in accordance with the Remediation Action Plan (RAP) approved by the Court in the proceedings in which that consent was granted.

18. On the basis of this advice, I am satisfied as to the matters set out in s 4.6(1).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

19. The site is within the Hawkesbury-Nepean Catchment and in turn provisions in Ch 6 apply. Relevant provisions are ss 6.6 (water quality and quantity), 6.7 (aquatic ecology), 6.8 (flooding), 6.9 (recreation and public access), 6.10 (total catchment management) and 6.13 (Hawkesbury-Nepean conservation area sub-catchments). The parties advise that in consideration of the explanation above (at [5]-[13]), the Court may be satisfied that the proposed development will not have any measurable environmental impacts to assess against the controls of Ch 6. I accept this advice and am relevantly satisfied in respect to each of the relevant provisions at ss 6.6(2), 6.7(2), 6.8(2), 6.9(2) and 6.10.

Wollondilly Local Environmental Plan 2011 (WLEP)

20. The site is partly within Zone C4: Environmental Living and partly within Zone RU2: Rural Landscapes under WLEP. The DA proposes to subdivide the site essentially along the boundary between the two zones, with the land within Zone C4 forming proposed Lot 1, and the land within Zone RU2 forming proposed Lot 2.

21. Land subdivision is permissible with consent under cl 2.6.

22. A development standard at cl 4.1 provides for minimum subdivision lot sizes. In accord with the parties’ advice, the C4 zoned portion of the site is subject to a minimum lot size of 4 ha and the RU2 zoned portion of the site is subject to a minimum lot size of 35 ha. With this proposal, Lot 1 (the C4 Lot) has an area of 12 ha and Lot 2 (the RU2 Lot) has an area exceeding 35 ha. I accept that each of the lots would comply with the relevant minimum lot size standard under at cl 4.1.

23. A further subdivision control applies to land zoned C4 under cl 4.1B, providing that development consent must not be granted if the total number of lots comprising the land will exceed one lot per 4 ha as a result of the subdivision. This control is also complied with.

24. Clause 7.1 concerns the provision of services essential for the proposed development. As this DA is for subdivision only, no services are essential for the development. However, the parties advise that there are dwellings on each of the lots and that water, sewer, and electricity services are in fact available on each of the lots.

25. The parties have indicated to me that these are the only relevant provisions of WLEP warranting jurisdictional attention for this proposal for land subdivision.

Other matters

Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979

26. I also note that the parties refer to various other points of consideration to which they have attended, including the Wollondilly Development Control Plan 2016.

27. The parties have advised that the DA was notified to in accordance with requirements and no submissions were received.

Conclusion

28. With the above findings, I am satisfied that the jurisdictional prerequisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

29. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. Subsection 34(3)(b) of The LEC Act also requires me to “set out in writing the terms of the decision”. The final orders have this effect.

Notations

30. The Court notes the advice of the parties that there is agreement between the parties that each party will pay its own costs of the proceedings.

Orders

31. The Court orders that:

32. The appeal is upheld.

33. Development consent is granted to Development Application No. DA/2024/899, for the two-lot subdivision of Lot 5 in DP 260390, known as 115 Mount View Close, Razorback, subject to the conditions in Annexure A.

P Walsh

Commissioner of the Court

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Annexure A (222 KB, pdf)