COMMISSIONER: This judgment relates to two appeals heard together following the Court's order on 17 February 2023, that Proceedings No. 22/266881 be heard in conjunction with Proceedings No. 2022/264511 on 22 and 23 June 2023.
The first appeal is a Class 1 Building Information Certificate Appeal pursuant to s 8.25 of the EPA Act being an appeal against the refusal of Building Information Certificate Application No. BC/2022/0087 lodged with the Respondent on 22 July 2022 seeking the issue of a Building Information Certificate pursuant to Div 6.7 of Pt 6 of the EPA Act. Proceedings No. 22/264511 (the BIC Appeal)
The Building Information Certificate Application Form (BIC Application) lodged with the Respondent seeks a Building Information Certificate (BIC) pursuant to s 6.25 of the EPA Act for part of the building. The BIC Appeal Class 1 Application form, filed 5 September 2022 (Ex D), seeks that the following order be made in these proceedings:
"1. The appeal be upheld.
2. Building Information Certificate application dated 22 July 2022 in respect of 6 unapproved skylights at 28 Empire St Haberfield NSW 2045 be approved.
3. Costs of the proceedings for the applicant."
The Respondent has not determined the BIC Application.
The second appeal 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 review under s 8.2 of the EPA Act (s 8.2 Review), which limited the review to the Applicant seeking retention and approval of 6 existing but unapproved skylights (the Skylights), from the refusal of Development Application DA2021/0716 which sought consent to retain unapproved skylights, change use of part of the attic storage to a study, and proposed rebuild of an existing garage with attached cabana in respect of a property known as 28 Empire Street Haberfield legally described as Lot 1 in DP179098 (the Site). Proceedings No. 2022/266881 (DA Appeal)
The Applicant appeals the deemed refusal (now an actual refusal) of the Review of the DA as it relates to the retention of six unapproved skylights to the roof of the dwelling house, or to put it another way, the parties agree that the consent sought is for the future use of the six unapproved skylights (Transcript 23 June 2023 page 17 at par 10).
It is agreed that there are 10 skylights on the roof of the dwelling and that 6 of these skylights do not benefit from development consent which are depicted in Fig 1 showing skylight windows numbered 5, 6, 7, 8, 9 and 10 as being "works executed without consent".
Fig 1: Extract from Sheet 2 1st Floor and Roof Plan Rev B dated March 2023
The Site is located within the Haberfield Heritage Conservation Area (HHCA) (nominated area of State significance) as listed as a heritage item on Sch 5 of the Inner West Local Environmental Plan 2022 (JER page 14, par a). The Site itself is not an item of environmental heritage and is not adjacent to any heritage items however the dwelling house on the Site, is a contributory item in the Empire Streetscape (SOFAC in Reply, Ex B).
The Applicant accurately summarises that the "true and sole issue in dispute is whether the skylights, taken individually and collectively, present an adverse impact on the heritage values" of the HHCA.
The Respondent submits that the retention of skylights, 5, 6, 7, 8, 9 and 10, would individually and cumulatively detract from the special qualities of this conservation area because they reduce the historical and architectural value of the individual building, reduce the building's relationship with its neighbours, and reduce the heritage values of Haberfield as a whole because they tend to erode the strong common design theme. (Transcript 23 June 2023 page 40 at par 10)
The status and history of the skylights is set out in the Statement of Facts and Contentions filed by the Respondent on 1 November 2022 in the DA Appeal (DA SOFAC) and is agreed by the Applicant (DA SOFAC in Reply) set out as follows:
"6.1.The Applicant originally had an approved consent (Development Application 2014/279) for Dwelling - Alterations and addition to dwelling, including new roof over the existing garage and new pergola. However, the approved consent did not authorise 10 skylights affixed to the roof of the existing dwelling. The skylights were already constructed at this time.
6.2.A further search of the Council's Consent Register revealed that on 4 September 2017 a Modification Application 2014/279/2 was lodged by the Applicant seeking to modify the consent with "Amendments include formalising and retention of seven (7) additional skylights installed without consent." This modification was refused on 24 October 2017.
6.3.A further search of the Council's Consent Register revealed that on 30 January 2019 a second Modification Application 2014/279/3 was lodged seeking "Modification of approved alterations and additions to grant consent internal reconfiguration of attic space and additional skylights". This 5 modification was approved on 30 May 2019 with a specific condition (B1(d)) inserted stating the skylights were to be removed. (d) Skylights highlighted in yellow on the approved plans (No.8221/19 - Sheets 1 - 4) are not approved by this 4.55 application and must be removed from all future drawings and from the existing dwelling if already installed.
6.4 The approved Modification Application allowed 4 out of the 10 skylights to remain affixed to the roof of the existing dwelling but required the remaining 6 skylights to be removed.
6.5 On 2 August 2021, the Applicant lodged another Development Application (the one subject to this appeal by way of section 8.2 Review) which was accepted by Council.
6.6 On 27 September 2021 the Development Application was refused on grounds that no power exists to grant retrospective consent for constructed unapproved skylights.
6.7 The Applicant lodged a section 8.2 Review known as REV/2022/0014 on or around 31 May 2022 which was recommended for refusal on the same grounds as the Development Application. This report was unanimously supported by the Inner West Planning Panel and the Review was rejected on 13 September 2022.
6.8 On 7 September 2022, the Applicant lodged an Appeal against the Inner West Planning Panel determination in respect of the Review."
The Applicant, in the DA SOFAC in Reply filed 21 November 2022 adds the following background:
"5.1. As part of DA 10.2014.279 three (3) roof skylights were approved by (then) Ashfield Council …
5.2. The Applicant in a pre- DA meeting with Council initially requested dormer windows, and more than three, in order to provide sufficient light and ventilation to habitable rooms in accordance with the BCA/NCC. Council s preference was for flush openable skylight, which were then proposed, within two bedrooms.
5.3. During construction ten (10) skylights were installed together with three (3) bedrooms (an additional one) within the attic roof space.
5.4. In September 2017 the Applicant submitted a (then) S4.55 (1A) Application to modify DA 10.2014.279 to regularise the additional internal bedroom and the additional roof skylights. This was subsequently refused.
5.5. A subsequent S.4.55 was lodged in January 2019 and on 30 May 2019 Inner West Council approved the S4.55 application however a condition of consent B(1) (d) was that six (6) skylights were not approved. An extract of the approved plans of the works as executed is at Attachment 1 [extract reproduced at Fig 1]. Council approved 2 skylights (3 & 4) on the one roof plane, on the western elevation (roof plane No. 6)
5.6. The Applicant in February 2021 subsequently lodged another S4.55 (1A) application to Inner West Council to further modify DA 10.2014.279 for a new side carport, conversion of part of the roof attic to a study, and to retain the remaining six (6) upapproved skylights. Inner West Council deemed that the S4.55 should be a fresh Development Application, and as such the S.4.55 (1A) was converted to DA 2021/0761.
5.7. On 27 September 2021 Inner West Council refused DA 2021/0761.
5.8. In April 2022 the Applicant submitted an Application for a S 8.2 review of refused DA 2021/0761, which was confined to the refused six (6) skylights component only.
5.9. The S8.2 Review Application was refused by Inner West Local Planning Panel of 13 September 2022."
The Court arranged a mediation pursuant to s 26 of the Civil Procedure Act 2005 between the parties, which was held on 10 February 2023 and was terminated as no agreement was reached between the parties and the matters were subsequently listed for hearing before me.
The evidence in one matter is evidence in both matters which were heard together. The remaining contention for both proceedings for determination is in identical terms being contention 2 in the DA SOFAC (Ex 2) and contention 1 in the BIC SOFAC (Ex 3) which I reproduce from the DA SOFAC below as follows:
"Heritage
2.1 The Skylights, which have already been installed, and some of which are visible from the street, have a detrimental impact on the character of the Haberfield Heritage Conservation Area, and are contrary to the relevant aims and controls in the Ashfield LEP 2013 and Comprehensive Inner West DCP 2016
Particulars
2.2 The proposal is inconsistent with the aims set out in clause 5.10(4) of the Ashfield LEP 2013, as the proposal does not conserve the environmental heritage, settings, fabric or views of the Haberfield Heritage Conservation Area, by virtue of the already installed Skylights. The Skylights have an adverse impact on the heritage significance of the locality.
2.3 The Comprehensive Inner West DCP Chapter E2 (Haberfield Conservation Area) Section 2.6 (k) provides specific requirements for windows in attic additions and skylights on rear additions. The proposal is contrary to these controls as detailed below.
2.4 DCP Section 2.6 requires that the windows of attics 'shall be located in the rear gable ends or gablets. They shall be discreet in scale ad appearance and cannot be visible from a public place'. The Skylights provided to the attic are contrary to this control as they are not located in the rear gable end and are visible from the public domain, introducing uncharacteristic elements that are visible from the street.
2.5 DCP Section 2.6 states that skylights within roof extensions can be considered where they are 'modest in size in line skylight', located 'in the side and rear roof planes and limited to one such window per roof plane'. Four Skylights have been installed in each of the side roof planes and two in the rear, some of which cannot be considered 'modest in size', nor are they in a line. The number, size and configuration of the Skylights is entirely contrary to these controls which specifically seek to limit the impact of skylights on the single storey streetscapes of the Haberfield Conservation Area.
2.6 An analysis of other skylights extant in the Haberfield Conservation Area has determined that the number of skylights at the subject property is highly uncharacteristic to the area."
The proceedings commenced onsite. There were no objectors present however a copy of written submissions received by the Respondent is included in the Respondent's Bundle of Documents (Ex 1).
The parties rely on a Planning and Heritage Joint Expert Report (JER) prepared by John Boers, Planning and Heritage Expert for the Applicant, Peter Rossello, Planning/Building Code of Australia (BCA) Expert for the Respondent and Lisa Trueman, Heritage Expert for the Respondent filed 22 May 2023 (Ex 4).
The BIC Appeal is determined by way of a notional development assessment of the works the subject of the BIC (Ireland v Cessnock City Council (1999) 110 LGERA 311; [1999] NSWLEC 250 and Lee v Randwick City Council [2021] NSWLEC 1200) therefore I consider the single merit contention raised by the Respondent as reproduced above.
Draft/Proposed Conditions of Consent were filed on 9 June 2023 for the DA Appeal (Ex 5) and the Applicant filed competing conditions on 16 June 2023 (Ex F).
It is pertinent to note at the outset that the experts Mr Boers and Mr Rossello agree with what the parties refer to as the 'BCA Contention', namely that the skylights within the roof attic storage area (Nos 9 and 10) are not necessary or required to be installed for the purposes of satisfying any requirements by the National Construction Code (NCC) and that their removal would not result in a noncompliance with any requirements under the NCC (JER, page 9, Ex 4).
I now set out my reasons as to how I reach the conclusion that development consent for the use of the skylights can be issued subject to conditions and that the BIC Appeal should be dismissed.
The Contention is framed as a concern that the skylights have a detrimental impact on the character of the HHCA and relies on the controls of the Ashfield Local Environmental Plan 2013 (ALEP) and the Comprehensive Inner West Development Control Plan 2016 (DCP). I agree with the Applicant's submission that the contention should be assessed with reference to cl 5.10 of the ALEP although I do consider the terms of section 2.6(k) of Chapter E2 Haberfield Heritage Conservation Area of the DCP.
The impacts of the skylights are identified by Ms Trueman to be that they are visible from the street and that they have the added impact at night when lights are on in the room (JER, page 18). There is also some reference to the non visible impact of the skylights on the fabric of the HHCA.
In relation to visibility of the skylights, the Experts agree (JER, page 10) that:
1. skylights 7 and 8 are not visible from the street;
2. skylights 2, 6 and 10 are visible from the street, although I note that skylight 2 is an approved skylight;
3. skylight 5 is partly visible form the street; and
4. Mr Boers says that skylight 9 is partly visible from the street whereas Ms Trueman says that skylight 9 is visible from a narrow range of viewpoints from the street.
Accordingly, the Court is to assess the impact or effect of skylights 6 and 10 and to some extent skylights 5 and 9 on the HHCA in order to determine whether consent for their use should be granted and whether to direct the Respondent to issue a BIC.
Starting with the objectives of cl 5.10 and the terms of subcl 5.10(4) of the ALEP provides as follows:
(1) Objectives The objectives of this clause are as follows -
(a) to conserve the environmental heritage of Ashfield,
(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,
(c) to conserve archaeological sites,
(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.
…
(4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
[emphasis added]
The Applicant made submissions that in relation to character or to "an extension of that the concept of what are the heritage values that are being embedded in an area" the court has the decision of Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 as authority for character, which is determined by the controls together with what is actually constructed and approved for construction. (Transcript 23 June 2023 page 18 at para 5)
To undertake the consideration required by cl 5.10(4) of the ALEP, the Court has regard to the controls in Chapter E2 Haberfield Heritage Conservation Area of the DCP (Ex 1, Tab 3). The Applicant submits that the controls of the DCP are the means to what the instrument tells us the end is and pursuant to s 4.15(3A) of the EPA Act those means are flexible "as long as one is getting to the right end, if one achieves that end by compliance with that control great, but if one achieves that end by some other means so be it too." (Transcript 23 June 2023, page 18 par 30)
Relevantly, s 4.15(3A)(b) of the EPA Act provides that if a DCP contains provisions that relate to the development that is the subject of a development application, the consent authority :
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development,
I accept the Respondent's submission that the touchstone for the merits assessment which is to be undertaken are the relevant standards or controls of the DCP and that the controls are informed by the objectives (Transcript 23 June 2023 page 31 par 38). I set out these objectives from Chapter E2 of the DCP below noting that the first three objectives are particularly relevant to the merit assessment of this matter:
"Purpose
a) Augment the provisions of the Inner West LEP 2022 in respect of the Haberfield Heritage Conservation Area.
b) Provide residents, landowners, purchasers and developers with a document which sets out in detail the Inner West Council's policy on change within the Haberfield Heritage Conservation Area.
Objectives
To keep the qualities which contribute to the heritage significance of the historic suburb of Haberfield;
To allow necessary change, but only where it will not remove or detract from those special qualities;
To ensure that necessary change, such as alterations and extensions to existing buildings, will respect the contribution of those buildings to the heritage significance of Haberfield and will have no ill effect on the heritage significance of Haberfield as a whole;
To ensure that where new buildings can be constructed, they are carefully designed to fit in with the heritage significance and character of Haberfield as a whole;
To encourage the removal and reversal of those components which detract from the heritage significance of Haberfield."
The Statement of Significance for the HHCA from Chapter E2 of the DCP is extracted and reproduced in the JER page 14 at b. and is also included in Ex 1 at Tab 3.
The statement of significance makes reference to Richard Stanton, Ms Trueman explains in the JER, page 14 at c. as follows:
"When planning Haberfield, Stanton placed covenants on the land to ensure his design intention was adhered to. The covenant included single storey scale, uniform setbacks, and quality materials to be used in new development. The covenant restricted roof materials to slates or unglazed terra cotta Marseilles pattern tiles, with unglazed terra cotta finials, crests and ridge capping. This indicates the importance he placed on the uniformity of roofs and the quality of roofing materials and details."
The Applicant submits that the purpose of the DCP self describes as a policy on change within the HHCA and that there is "no intention of this chapter to freeze the suburb in amber and to treat it as a museum piece." (Transcript 23 June 2023, page 18 at par 41). It is agreed that the DCP objectives found in Chapter E2 allow for necessary change but only where it will not remove or detract from the special qualities that contribute to the heritage significance of Haberfield. Those qualities are identified in the statement of significance (DCP at page 5, Ex 1, folio 72) which are "focused on the combination of "form, materials, scale and setback."" (Transcript 23 June 2023, page 21 at para 14).
The word "necessary" is referred to twice in the Chapter E2 objectives of the DCP and the Respondent places some weight on this fact, submitting that the Applicant has not explained that the changes to the roof form are necessary changes. I do note that the word necessary is contextualised in the objectives and examples of necessary changes include "alterations and extensions to existing buildings". I accept the skylights are 'alterations' to an existing building for the purpose of improving internal amenity to the dwelling by providing additional light and ventilation and to that extent may be considered necessary for the purpose of the objectives of the DCP.
Ms Trueman reproduces an aerial image of the roof of the building on the Site at page 18 of the JER which I include at Fig 2 below.
Fig 2: Aerial image of the roof of the building on the Site (JER, page 18, Ex 4)
The standard or control of the DCP particularised in the contention is section 2.6 (k) of Chapter E2 which provides as follows:
"Where attics are permitted, their windows shall be located in rear gable ends or gablets. They shall be discreet in scale and appearance and cannot be visible from a public place. Where extensions to existing roofs are being undertaken, modest-sized in-line skylights may be considered in the side and rear planes of the extension only, and limited to one such window per plane."
I am satisfied that the skylights installed by the applicant are in-line skylights, some of which are openable, however, I also accept that there is more than one skylight per roof plane and they are not limited to the area of the roof extension. Is it accepted that the relevant control at 2.6 (k) of Chapter E2 of the DCP is not complied with and that the Applicant relies on the objects of the control and the flexible application of the control.
"Roof plane" is not defined or referred to in the EPA Act, ALEP or DCP and the experts spent some time addressing what constitutes a roof plane on the roof of the building on the Site. Mr Boers's evidence is that there are 10 roof planes on the building on the Site, whereas Ms Trueman's evidence is that the reference to 'roof plane' clearly means any one side of the roof and that the number of skylights installed in each side of the dwelling is four. Mr Boers, at page 21 of the JER states that his understanding of 'roof plane' "is consistent with the Oxford Dictionary definition of a 'plane' - which is a flat surface on which a straight line joining any two points on it would wholly lie. A 'Roof Plane' is therefore the flat surface of the roof that is at an angle. It's defined as an area of the roof which has four or more separate edges."
The definition or interpretation of 'roof plane' does not result in a difference between compliance with the control or non-compliance with the control as, even if I were to accept Mr Boer's definition, there are still more than one skylight on a roof plane as depicted in Mr Boer's figure at page 20 of the JER where he numbers the roof planes in blue and it is unequivocal that skylights 7, 8 and 1 are on the single plane numbered 1, and skylights 6, 5 and 2 are on the single plane numbered 7, and finally, the previously approved skylights 3 and 4 are on the single plane numbered 6.
In relation to the approved skylights 3 and 4 Mr Boers at page 22 of the JER states:
"The most visible and prominent skylights are from Algie Park to the rear - which Council has approved. … These approved elements indicate acceptable noncompliant additions and alterations which are more visible and prominent than the skylights on the southern roof side of No. 28 Empire St."
Mr Boers includes a number of appendices to the JER including Appendix C "Visibility and Prominence of Skylights". Ms Trueman concludes at page 19 para t. of the JER that "it is my opinion that Mr Boers evidence at Appendix C supports the contention that the number and location of skylights at the subject property is highly uncharacteristic to the area." I do not agree that Appendix C necessarily supports the contention because it is merely a photographic visual assessment of which skylights are visible from five different vantage points whereas the Court had the benefit of an inspection of the Site from many other vantage points as well as an inspection of a number of other dwellings with skylights visible from the street and from other public areas.
I accept Mr Boers conclusion that "the skylights on the roof of No. 28 Empire St are only partly visible, and not prominent elements which dominate or significantly affect the relative streetscape contribution of the house." (Page 22 JER).
Having had the benefit of inspecting the Site and surrounds, I accept the evidence of Mr Boers and find that on balance, following the merit assessment, the skylights 6 and 10 and to some extent skylights 5 and 9 do not sufficiently detract from the environmental heritage, settings, fabric or views of the HHCA to warrant the refusal.
The visibility of some of the skylights, especially those which are openable remain a residual concern of the court in relation to impact or effect on the HHCA. In summary I have formed the conclusion that:
1. the use of skylights 7 and 8 which are not visible from the street should be approved without any further works or alteration;
2. the use of skylights 6 and 10, which are visible from the street, can be approved on condition that their frames are painted in a colour matching the roof colour and that they are permanently fixed in the closed position so as to minimise visual impact when viewed from Empire Street;
3. The use of skylights 5 and 9, which are partly visible from the street, can be approved on condition that their frames are also painted in a colour matching the roof colour.
I have made the relevant amendments to the draft proposed conditions (Ex 5) to reflect my conclusions at par [43] above.
[2]
BIC Appeal
Having undertaken the notional assessment of the skylights the Court is to determine what orders to issue pursuant to the jurisdiction of the Court in accordance with s 8.25 of the EPA Act.
The Class 1 Application, Ex D, includes certification as to the structural integrity of the skylights from Anthony Yialousis, structural engineer dated 22 July 2022 which states that "10 existing roof skylights are of a pre-fabricated type and are installed in accordance with AS1684 Timber framing code which were found to be structurally satisfactory and adequate" as well as complying with the BCA.
The powers of the Court on appeal of the refusal to issue a Building Information Certificate are set out in s 8.25(3) of the EPA Act and in s 39(2) of the Land and Environment Court Act 1979.
I am satisfied that the issue of a BIC is appropriate after the skylights 5, 6, 9 and 10 have been altered in accordance with the conditions of the grant of consent the subject of these proceedings. It is not appropriate to direct the Respondent to issue the BIC as sought, that is without or prior to the alterations to the skylights are carried out. After the works the subject of the consent are carried out, it will be appropriate for the Applicant to then make an application for a BIC and for the council to issue it accordingly.
[3]
Proceedings No. 22/264511
The Court orders:
1. The appeal is dismissed.
2. All exhibits are retained
[4]
Proceedings No. 2022/266881
The Court orders:
1. The appeal is upheld.
2. Development application DA 2021/0716 for the use of 6 existing but unapproved skylights numbered and referred to as skylights 5, 6, 7, 8, 9 and 10 (the Skylights) is determined by a grant of consent subject to conditions of consent at Annexure A.
3. All exhibits are retained.
I certify that this and the preceding 14 pages are a true copy of my reasons for judgment.
[5]
Annexure A (159259, pdf)
Architectural Plans(3512189, pdf)
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 07 November 2023