Riverdale Estate Pty Ltd v Wingecarrifee Shire Council

Category: Principal judgment

Parties: Riverdale Estate Pty Ltd ABN 59 656 062 350 (Applicant)
Wingecarribee Shire Council (Respondent)

Representation: Counsel:
R Pellizon (Solicitor)(Applicant)
G Appleby (Solicitor)(Respondent)
Solicitors:
Colin Biggers & Paisley (Applicant)
Maddocks (Respondent)

File Number(s): 2024/242938

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA23/1508 seeking consent for the subdivision of one lot into two lots (Proposed Development) at 18-19 McCourt Road, Moss Vale legally described as Lot 4 in DP 1292881 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 17 April 2025. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached 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 development consent to the development application subject to conditions.

4. 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. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of cl 2.6 of the Wingecarribee Local Environmental Plan 2010 (WLEP) regarding subdivision of land. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement provided to the court.

7. The Class 1 Application was initially filed with the Court with reference to a now cancelled folio reference, Lot 2 in DP 873240. However, as a result of a compulsory acquisition of land by Council and the registration of the Deposited Plan this title has since been cancelled and subsequently replaced with a new title, being Lot 4 DP 1292881. The new folio reference (Lot 4 in DP 1292881) was created on 7 July 2023 after the DA was lodged.

8. The Site is an irregular shaped split zoned lot with a total site area of approximately 39.934 hectares with a 400m northeastern frontage to McCourt Road and a majority of the site fronting the Wingecarribee River along the eastern boundary. As shown in Figure 1 below, the Site has a split zoning. The majority of the Site, being approximately 30 hectares, is zoned C3 Environmental Management Zone under the WLEP. A smaller portion of the Site, being approximately 10 hectares, is within the E5 Heavy Industrial Zone under the WLEP.

9. There is no minimum lot size requirement for subdivision of 40 hectares within the C3 Environmental Management Zone. There is no minimum lot size for subdivision for land zoned E5 Heavy Industrial Zone.

10. Subdivision is permissible with consent under cl 2.6 WLEP

11. The Site is flood affected across both C3 and E5 zones and cl 5.21 of the WLEP provides that the consent authority must not grant consent to the carrying out of development on land unless it is satisfied as a number of matters regarding flood planning. Preston CJ in Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 found at [80] as follows:

To carry out development on land involves doing something on the land. That is evident with the development specified in paragraphs (a) to (c) of cl 2.7(1) – they all involve physical work on the land with attendant impacts on the land and its vegetation. The catch-all category of “any other development” in paragraph (d) of cl 2.7(1) is no different. Development other than the developments specified in paragraphs (a) to (c) must also be “carried out on land”. The mere procuring of the registration of a plan of subdivision in the Office of the Registrar-General does not involve the carrying out of any development on land.

12. Accordingly, the Proposed Development is a subdivision simpliciter and is not development on land therefore I am satisfied that the terms of cl 5.21 of the WLEP do not apply to the Proposed Development and that I am not required to be satisfied of the matters listed at cl 5.21(2) of the WLEP in order to be able to grant consent.

13. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as set out in this judgment.

14. 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.

Notations:

15. The Court notes that Wingecarribee Shire Council, as the relevant consent authority has agreed under section 37(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA23/1508 in accordance with the amended material identified below:

16. The Flood Risk Assessment Report prepared by SEEC dated 5 November 2024.

17. Survey Plans No.11350-0004 prepared by Boxall Surveyors dated 26 September 2024.

18. Letter from Spectrum Engineering Solutions dated 10 December 2024.

19. Letter from Urban Water Solutions dated 13 December 2024.

20. Draft Deposited Plan Administration Sheet.

21. Plan of Subdivision of Lot 4 DP 1292881 dated 16 April 2025.

(a) Draft Plan, Revision F. (b) Draft Plan, Revision F, Aerial Overlay.

Orders:

16. The Court orders:

17. The Applicant shall pay the respondent's costs thrown away by reason of the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $1,800, which is to be paid within 28 days of orders being made.

18. The appeal is upheld.

19. Development Consent is granted to Development Application No. DA 23/1508 for the Torrens title subdivision of one lot into two lots at Lot 4 DP 1292881 being 18-19 McCourt Road, Moss Vale 2577, NSW, subject to the conditions in Annexure A.

E Espinosa

Commissioner of the Court

Annexure A (54259, pdf)

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