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Lee v Hunters Hill Council [2025] NSWLEC 1817 | Case summary | Zoe

NSWNSWLEC

Lee v Hunters Hill Council

[2025] NSWLEC 1817

Land and Environment Court (NSW)|2025-11-21|Before: Peatman AC

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2025-11-21

Before

Peatman AC

Catchwords

BUILDING INFORMATION CERTIFICATE — sufficient information —
works DEVELOPMENT APPLICATION — use

Source

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Catchwords

BUILDING INFORMATION CERTIFICATE — sufficient information —works DEVELOPMENT APPLICATION — use

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Lee v Hunters Hill Council [2025] NSWLEC 1817

Hearing dates: 25, 26 September 2025

Date of orders: 21 November 2025

Decision date: 21 November 2025

Jurisdiction: Class 1

Before: Peatman AC

Decision: Proceedings No 2025/163197:
The Court orders:
(1) The appeal is dismissed.
(2) Building Information Certificate Application No 20247809 which seeks to regularise unauthorised works being a sunroom on the rear of the first floor on Lot 2 in Deposited Plan 1128452 known as 8 Salter Street, Huntley’s Cove NSW 2111 is determined by way of refusal.
Proceedings No 2025/163189:
The Court orders:
(1) Leave is granted to the Applicant to amend his Class 1 Application in proceedings 2025/163189 by deleting the words “for approval of” and inserting the words “for approval of use” so that its Class 1 appeal reads: “Refusal of DA20240233, on 3 March 2025 by Hunters Hill Council, of Development Application for approval for use of unauthorised additions and alterations to the rear first floor Pergola (conversion to sunroom)”.
(2) The appeal is dismissed.
(3) Development Application No DA20240233 which seeks consent to the use of the unauthorised sunroom constructed on the rear of the first floor on Lot 2 in Deposited Plan 1128452 known as 8 Salter Street, Huntley’s Cove NSW 2111 is determined by way of refusal.
(4) All Exhibits are retained except Exhibits 1, 2, 4, and 15, which are to be returned to the Respondent.

On 25 September 2025 the Court made orders that evidence in one proceeding be evidence in the other, as relevant.
The Site accommodates a modern two storey dwelling with an attached garage and a swimming pool at the rear of the Site. The Unauthorised Sunroom is located in the eastern part of the first floor level.
The Site is a large irregular lot of approximately 1250m2 on the eastern side of Salter Street.
The topography of the Site has a gradual slope from the front to the rear of the Site.
The Site is located within the R2 Low Density Residential Zone in the Land Use Table of the Hunters Hill Local Environmental Plan 2012 (HHLEP 2012).
In accordance with the Land Use Table of HHLEP 2012 Zone R3 Medium Density Residential is located to the immediate south of the Site.
To the immediate north of the Site is a State Heritage item known as “The Priory” (State Heritage Register No 01720, Gazette Date 3/12/2004) that is located at 10-12 Salter Street, Huntley’s Cove 2111. The State Heritage listing includes the Site and 2-6 Salter Street as part of the setting (curtilage) of the heritage item, as well as Lot 3 in Deposited Plan 1128452.
“The Priory” is also listed as a heritage item (Item No. 16) under the HHLEP 2012. In the listing of “The Priory” in HHLEP 2012 the Site and 2-6 Salter Street are listed as adjacent to the local heritage item.
To the immediate east of the Site is Riverglade Reserve, with Tarban Creek further to the east.
Set out below is Figure 1: Aerial image of the Site (source: SDT Explorer) taken from page 6 of Council’s Statement of Facts and Contentions in Reply filed 10 July 2025 (Ex 6: Council’s SOFAC in Reply). Strata Plan 83874 is known as 2-6 Salter Street Huntley’s Cove.
On the morning of 26 September 2025 the Applicant sought to amend its Class 1 Application in relation to the DA proceedings by deleting the words “for approval of” and inserting the words “for approval of use” so that its Class 1 appeal read: “Refusal of DA20240233, on 3 March 2025 by Hunters Hill Council, of Development Application for approval of use of unauthorised additions and alterations to the rear first floor Pergola (conversion to sunroom)”. The Council consented to the amendment being made pursuant to ss 37(1), and 38(1),(4) of the Environmental Planning and Assessment Regulation 2021 (EPAR), and I granted leave to amend, and ordered:

The Unauthorised Sunroom was constructed around 2019 (Ex 7: Council’s Bundle of Documents, tab 11 p 400).
As detailed in Council’s Statement of Facts and Contentions (SOFAC) in the DA proceedings (Ex 5, p 4 par 16, 17) and Council’s Statement of Facts and Contentions in Reply (SOFAC in Reply) in the BIC proceedings (Ex 6, p 4 par 17, 18), the Applicant previously lodged DA and BIC applications in relation to the Unauthorised Sunroom:
On 3 April 2021, Modification Application DA 2015/1026-1 sought conversion and use of pergola as an enclosed study associated within an existing dwelling house. This Modification Application was refused by the Council on 16 August 2021.
On 26 November 2021 the Applicant commenced Class 1 proceedings appealing Council’s refusal of the Modification Application. These proceedings were discontinued by consent on 20 December 2021.
On 17 November 2022, DA2022/0214 was lodged with Council for the conversion and use of the pergola as an enclosed study associated within an existing dwelling house which was subsequently refused by Council on 4 October 2023.
On 25 November 2024 the BIC was lodged with Council.
On 4 December 2024 the DA was lodged with Council.
The Council notified and exhibited the DA from 10 December to 24 December 2024. Five written submissions were received. An objector who recently purchased an adjoining property gave oral submissions at the commencement of the hearing. The Court also inspected his property situate at Unit 9, 22 Salter Street, Huntley’s Cove in order to understand the amenity issues raised by the objector.
On 3 March 2025 the DA was determined by the Council by way of refusal.
On 26 March 2025 the BIC was determined by the Council by way of refusal.
The Council has also issued various notices under Sch 5 of the EPA Act in relation to the Unauthorised Sunroom seeking, in summary, demolition of the unauthorised works and restoration of the open style pergola approved in the 2015 DA Ex 5: SOFAC at [17] p 5).
The Applicant has erected an unauthorised enclosure (Privacy Screen) to the outside of the southern side of the Unauthorised Sunroom. The enclosure is covered in fake flora so as to prevent any overlooking of 22 Salter Street, and give privacy to the first floor bedroom of 6/22 Salter Street and the main bedroom on the subject Site (observation at onsite view on 25 September 2025). The Privacy Screen does not form part of the BIC proceedings, or the DA proceedings as the DA proceedings have been described as “in support of the BIC proceedings” and amended to include “use of the Unauthorised Sunroom”.
The Applicant requested the DA proceedings be heard first, on two bases:
That the Court will uphold the Applicant’s BIC proceedings and direct the Council to issue the BIC; or
That the Court grant the DA subject to Deferred Conditions of Consent which would include all the requirements to permit the issue of the BIC.

Attached to Ex 9 as Appendix C is a Conservation Management Plan of The Priory by Graham Brooks and Associates, dated April 2009.
Mr Boers opines that the heritage impact upon ‘The Priory’ of the Unauthorised Sunroom is acceptable:
“The aesthetic significance under the Assessment of Significance of ‘The Priory’ emphasises views to and from The Priory from the “nearby water spaces and surrounding ridges’ and ‘its surrounding landscape within a suburban context’, in addition aesthetic values of the site itself (arising from its buildings and landscape elements).” (Ex 9, p15)
“With respect to the site itself (its curtilage) under heading ‘Description’ on page 4 of the SHI inventory states ‘The site for the proposed new dwelling house on site 2 (viz No 8 Salter St (my addition) is less sensitive, being adjacent to the site of a later building, Ward 3.” (Ex 9, p 15)
“Therefore in this instance any potential impact of the sunroom upon the significance of ‘The Priory’ is limited to aesthetic/visual impact. It is marginal in comparison to other elements comprising aesthetic significance of the site and vistas to and from it.” (Ex 9, p15)
“No 8 Salter St., and in particular the sunroom are too distant to be a prominent if at all visible from Tarban Creek, and is only visible from the public domain from within a limited part of the curtilage of The Priory.” (Ex 9, p 16).
“The scale, architectural form and materials of the sunroom are consistent with both the main original part of the house at 8 Salter St and its surrounding development. The (near flat) parapeted roof line of the sunroom continues that of the house.” (Ex 9 p 16)
Mr Boers was the author of the Statement of Environmental Effects (Ex D: Class 1 filed 29/4/2025 unnumbered) which included the impact of the Unauthorised Sunroom on ‘The Priory’. In cross examination Mr Boers admitted his error in failing to understand the curtilage of ‘The Priory’ in the SHI included 2 – 6 and 8 Salter Street Huntley’s Cove, whereas in Council’s local heritage listing 8 Salter Street was adjacent to the local heritage item.
In re-examination Mr Boers informed the Court that he corrected the error in Ex A: Applicants SOFAC in Reply.
In his oral evidence Mr Boers confirmed his views as set out in response to Contentions 1 and 2 in Ex A on pp 7-12, and in summary as set out below.
The DA is acceptable as the sunroom is consistent with the existing and desired character of Hunters Hill. The sunroom has no significant impact upon the Curtilage of ‘The Priory’ where it is visible, as it is neither a prominent nor a dominant element in the landscape or curtilage of ‘The Priory’ and within Hunters Hill. (Ex A, p7)
The sunroom is within a limited visual field of ‘The Priory’ buildings within its curtilage, and where it is visible, the sunroom blends sympathetically into its built environment background. The character of the development surrounding the sunroom and the balcony enclosure are all similar in their form – being horizontal in proportion, roofs flat and/or obscured by parapets, and extensive glazed areas. As shown in Figure 8 on p 8 of Ex A (SOFAC in Reply), the existing background development provides a context of high ‘visual absorption capacity’ for further development, without altering its overall character. The sunroom, being a sympathetic element within this context, is not a prominent one.
Mr Boers based his heritage assessment on the HHLEP 2012 local listing which noted the Site as adjacent. Mr Boers assessed the heritage impact of the DA against the background development being the R2 Low Density Residential Zone and the R3 Medium Density Residential Zone. Whilst Mr Boers acknowledged the Site falls within the SHR listing of ‘The Priory’ which includes its curtilage as a conservation area, he maintained his position throughout the JER Heritage (Ex 9) and the hearing that the impact of the Unauthorised Sunroom should be assessed within the context of its built surroundings, and within this context the sunroom is a sympathetic element and its heritage impact is acceptable.
Ms Trueman opines that the impact of the Unauthorised Sunroom on the State listed conservation area of ‘The Priory’ is unacceptable:
Underneath the pergola, the approved balcony was approximately 1.5m in depth and 4.8m wide, and the rest of the area was roofing to the pergola underneath that covered the ground floor terrace (Tcpt, 26 September 2025, p 105(49-50); p 106(1-5); p 108(8-12)).
“The Priory is listed as a cultural landscape on SHR and has significance at State level under seven of the eight standard criteria – a) historical, b) historical associations, c) aesthetic, d) social, e) research potential and f) rarity.” (Ex 9, p8 at [27])
As the Site is within the curtilage and setting of ‘The Priory’, although barely visible from ‘The Priory’ itself, any structure on the Site should be designed with respect to the significance of the SHR, including its setting and views.
Given the high level of significance of the Site, and its rarity, any structure within the curtilage of ‘The Priory’ must be sensitively designed to ensure that the significance of the place is retained, particularly to conserve the picturesque setting.
“Clause 5.10(1)(b) of the HHLEP 2012 provides the following objective: to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, setting and views. Given the very high level of significance of the setting of this place, an assessment of the impacts of the development should pay particular regard to setting and views.” (Ex 9, p8).
“The assessment of the impacts of the proposal should not be limited to a specific element of its significance. The Burra Charter Article 5.1 states: ‘Conservation of a place should identify and take into consideration all aspects of cultural and natural significance without unwarranted emphasis on any one value at the expense of others.’” (Ex 9, pp 8-9)
The design of the dwelling in the DA was for the upper level of the dwelling to be a recessive element within the landscape, with the upper level set back and recessed behind the timber pergola. The pergola is a transitional element that helps to soften the box like form of the upper level. Ms Trueman considers the original design to be an acceptable outcome for this Site.
“In contrast, the unauthorised sunroom is a highly obtrusive element that projects over 5m forward of the approved upper level. The design of the sunroom fails entirely to respond to its location within the setting of a State heritage item. The poorly designed box like form and large areas of glazing are highly detracting from the surround landscape, including at night when the lights are on. The vertical blind screens further detract from the setting within a cultural landscape.” (Ex 9, p 9)
Ms Trueman maintained her position throughout the hearing that the Unauthorised Sunroom is of far inferior quality in design and construction to the original building. More importantly the Unauthorised Sunroom is visually intrusive from the curtilage of ‘The Priory’ and warrants refusal.
The Applicant did not tick the box on its development application to Council notifying that the development is integrated development. Council assessed the heritage impact internally. After the Applicant filed its appeal in Court, the Council referred the DA to Heritage NSW. On 22 August 2025 Mr Tim Smith OAM, Director of Assessments, Heritage NSW responded by letter to HWL Ebsworths, (Ex 8, App G unnumbered), the second and third paragraphs being recited below:

In relation to the DA and BIC proceedings, Dr Eun for the Applicant submits:
This is a Class 1 appeal against a concurrent refusal of a DA for the continuing use of an Unauthorised Sunroom and the related BIC. The DA is acceptable on its planning and heritage merits. The central issue in dispute is not one of a fundamental uncertainty, but, rather the appropriate mechanism by which final technical compliance is to be certified and documented.
The Applicant seeks orders that the DA appeal be upheld and the DA be granted subject to conditions, and the appeal against the refusal of the BIC also be upheld, or, alternatively, that the DA appeal be upheld and the DA be granted subject to conditions requiring the matters of compliance to be resolved to the satisfaction of the certifying authority, and that the BIC appeal be dismissed, thereby mandating the Applicant achieve full compliance under the DA consent before the BIC can be issued.
For the first orders sought, the Applicant relies upon Hanna v Wollondilly Shire Council [2021] NSWLEC 1372 (Hanna), a decision of Bish C dated 25 June 2021. In this case the Court upheld both the DA and BIC appeals, granting development consent and ordering the Council to issue a building information certificate after certain works were carried out. Dr Eun submitted that the Court has power under s 8.25 of the EPA Act, and accepts that there is a strict statutory threshold for issuing a BIC, as compared to the DA, but, in relation to the DA, the Court has more broad powers and discretions.
The Council’s primary contentions for refusal are an alleged unacceptable adverse impact on the curtilage of the State Heritage listed ‘The Priory’ in the absence of approval under the Heritage Act 1977 (NSW). The Applicant submits that the Court hearing the matter de novo has power under s 39(2) of the LEC Act to grant heritage approval and determine the DA on its merits. The Court should put limited weight on the letter from Heritage NSW dated 22 August 2025 (Ex 8 – last page).
For the second orders sought, the Applicant relied upon the case of Hodzic v Inner West Council [2023] NSWLEC 1659 (Hodzic). In Hodzic’s case, the Court granted development consent for six existing but unapproved skylights
Mr Boers says that the heritage impact is negligible, as the Unauthorised Sunroom is obscured from the view from the main Priory Buildings and reads against a background of contemporary development in the R3 Medium Density development to the south and west of the Site. Ms Trueman focuses on the criticism on the visually intrusive element of the glazed walls and potential light spillage determined ‘as is’ of material selection and finish, in my submission, not fundamental form or scale.
The Applicant submits that any residual visual conflict could be effectively managed by a condition requiring the final materials and finishes to be certified by a qualified independent heritage consultant. The Applicant further submits that this approach aligns with the best practice guidelines for ‘The Priory’ in its Conservation Management Plan which recommends new elements to be designed, in consultation with such an expert.
The Council seeks to characterise the DA as fatally uncertain, relying on its contentions regarding the BCA compliance, procedural clarity and landscaped area, to invoke the precedent of Doyle v Hunters Hill Council [2019] NSWLEC 1620 (Doyle). The issue in Doyle was a lack of fundamental design information, such as the location of sewer and stormwater systems, which created an unacceptable uncertainty about the project’s form and impact. In contrast, the issues here relate mostly to the provision of evidentiary proof of compliance for an existing known structure. The 12 items agreed between the BCA experts – it appears that they have agreed that most of those items could be rectified by providing proper certification or remedial works. These are not matters of uncertainty that prevent the grant of consent; they are matters of certification and minor remediation.
There are also some administrative issues which are not fatal, that is the landscaping control (Contention 10). The evidence confirms that the Unauthorised Sunroom was constructed over a pre-existing balcony and pergola, meaning the site coverage and the landscaped area have not been altered, according to Mr Boers. The Applicant concedes that some alteration has occurred, but the missing information is merely the restatement of a calculation, not a substantive breach.
If the Court is not satisfied that the BCA issue could be resolved by imposing conditions under the DA, my proposal is the alternative course, consistent with Hodzic, which is to grant the DA while using the conditions of consent as the legal mechanism to mandate full compliance before the structure can be finally certified. The Applicant submits that the Court should grant the DA, subject to deferred commencement conditions requiring the BCA compliance certification and the heritage remediation certification. The Applicant requests that the proposed condition of consent by Council requiring Heritage NSW to approve the heritage aspect of the development should not be imposed, but alternatively require an independent heritage expert to approve the heritage aspect of the development.
If the Court decides to agree to the Council’s conditions of consent, both approaches provide the requisite certainty and it resolves the jurisdictional issues, if any, by granting the DA on its planning merits, while ensuring that the use of the sunroom cannot lawfully commence until every technical and aesthetic compliance issue has been formally certified and resolved.
In relation to the DA and BIC proceedings, Mr Brown for the Council submits:
The Site’s sensitivity is demonstrated as set out below.
The Site is located within the State Heritage Curtilage of the SHI known as ‘The Priory’.
The Site adjoins ‘The Priory’ which is listed as a heritage item under the HHLEP 2012 as detailed in its Heritage Map.
The Site is at a zone interface, whereby the Site is zoned R2 Low Density Residential (as is ‘The Priory’), with RE1 Public Recreation immediately to the east, and R3 Medium Density Residential to the south and west, as shown on the HHLEP 2012 Zoning Map.
In reference to the Applicant’s submissions, that the Unauthorised Sunroom ‘fits in’ to the R3 zone development to the south – that change in form of development is reflected in, and is an expected outcome of the planning controls.
The Court’s planning principle is set out in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 per Bly C at [25]:

The Court could not be satisfied that the Applicant has discharged its persuasive burden that the Unauthorised Sunroom complies with the BCA, and is otherwise safe, healthy and fit for purpose. Council submits that the Court would not direct the Council to issue the BIC in such circumstances.
The DA and BIC proceedings should be dismissed on this basis alone.
For completeness, the Council also makes submissions in relation to Contention 6 of the SOFAC (Ex 5 p19): “Uncertainties and inadequacies with respect to the DA/potential lack of Power for Court to approve proposal”. The fundamental principle is that there is no power for the Court to grant retrospective development consent for building works already carried out (Ku-ring-gai Council v B**uyozo Pty Ltd [2021] NSWCA 177; (2021) 248 LGERA 300 (Buyozo) at [39] per Preston CJ of the LEC.
Mr Adamson and Mr Boers consider the issue of inadequacies of the plans and power at [18] pp 28-29 of the Planning JER Ex 10. Mr Boers considers that the plans submitted adequately point out development which has occurred without consent, and the power of the Court to uphold the appeal is a legal question. Mr Adamson considers that the plans provided do not reflect the existing works that have been undertaken “as indicated in the photographs with the supporting information accompanying the application as well as other site inspection photographs provided. Specifically, the existing western glazed elevation does not reflect the plans. The plans, albeit ambiguous, appear to indicate smaller window openings.”
Ms Trueman agrees that the plans are unclear in the Heritage JER (Ex 9) at [27] (o) and (p).
Similarly, the plans that accompany the Class 1 Application (Ex D) do not make clear that the works have already been carried out and contain notes that indicate future works in circumstances where the works have already been carried out, for example South Elevation prepared by M Groupe No. 8381/23 Sheet 6 “Notes”.
I note these problems remain with the amended plans in Ex F.
At the commencement of the hearing Mr Newton and Mr Norris measured the dimensions of the Unauthorised Sunroom as 5.1m x 8m. The plans filed in the Class 1 DA and Class 1 BIC proceedings indicate internal dimensions of the Unauthorised Sunroom of 5.5 x 7.8m. The amended plans in Ex F indicate the internal dimensions of the Unauthorised Sunroom to be 4.885m x 8m.
The BIC proceedings’ plans show skylights in the roof of the Unauthorised Sunroom. Mr Norris advised that they were removed approximately two months ago (Tcpt, 26 September 2025, p 58(6-11)).
These issues demonstrate the fundamental uncertainties and deficiencies with respect of whether the building for which ‘approval’ is sought by the DA and BIC is accurately depicted in the plans.
The inadequacies of the plans represent a fundamental hurdle that the Applicant cannot overcome in relation to the BIC. As observed by Ms Trueman in the JER Heritage (Ex 9):

Mr Norris said on the site inspection that the skylights were removed approximately two months ago.
The difficulty presented for the Applicant is that it cannot seek leave to rely upon amended plans in the BIC proceedings as there is no express power to amend a BIC application (Scarf v Shoalhaven City Council [2021] NSWLEC 128 (Scarf) per Pain J at [57]-[59].
Contention 10 (Ex 5: SOFAC - DA) and Contention 8 (Ex B: SOFAC - BIC) relate to the Applicant’s non-compliance with the area criteria required for landscaping in cl 6.9 of HHLEP 2012.
The Applicant in both proceedings says (Mr Boer) that as there is no change to the landscaping arising out of the DA or BIC, then this contention does not need to be addressed [Landscape calculations sheet dated 20/5/15 (2015 Landscape Plan prepared for the 2015 DA) located at p 123 of Ex 10: JER Town Planning].
Council relies upon the evidence of Mr Adamson at [22] p 3—31 of Ex 10: Planning JER with respect to the inadequacies of the 2015 Landscape Plan.
In relation to the 2015 Landscape Plan:
It is approximately ten years old and there is no certainty that the plan reflects the current Site conditions;
It is un-dimensioned so that there is no certainty as to the measurements.
The Applicant seeks to rely upon cl 6.9(4) of HHLEP 2012 which potentially allows for a two-thirds ‘soft’ landscape and a one third ‘hard’ landscape, provided the pool is less than 40m2 and the proposed development is consistent with the objectives of cl 6.9(4).
No argument has been put forward by the Applicant as part of its persuasive burden with respect to demonstrating how the proposed development would be consistent with the objectives of cl 6.9(1) of HHLEP 2012.
The Council in submits that cl 6.9 of HHLEP 2012 is a development standard, and has been accepted as such by the Court in Tannous v Hunter’s Hill Council [2019] NSWLEC 1175 at [24]. Therefore there is no power for the Court to approve the DA if it cannot be satisfied that cl 6.9 of HHLEP 2012 has been satisfied.
The DA proceedings should be dismissed.
The BIC proceedings should be dismissed.

The ‘works’ in the present proceedings are not minor, they are substantive in that each of the products used for the Unauthorised Sunroom need to be identified, the details of installation received from the manufacturer, and the installation of each item to be certified.
The approach of the Applicant poses the question: has the Applicant provided sufficient information to comply with s 6.25(1)(a) and (b), or alternatively, can deferred conditions of consent be drafted in such a manner that upon compliance with the deferred conditions that the Council will be in a position to issue the BIC?
Both the BCA experts, Mr Newton for the Applicant, and Mr Norris, for the Council, agreed in their 2 joint reports (Ex 3 and Ex 8) that there has been insufficient detail or information provided to satisfy the contentions raised in both BIC and DA proceedings.
In response to a question by Dr Eun as to whether there is a lack of information in relation to the compliance or is it a lack of fundamental design information, Mr Newton responded: “Both.”, and Mr Norris responded: “A bit of both. The majority is a lack of information in relation to compliance.” (Tcpt, 26 September 2025, p 64(35-41)).
Dr Eun asked: “…. Are there any issues you may consider – that this is so fundamental - that couldn’t be remedied or cured?” Mr Norris responded “No”. Mr Newton responded that Mr Norris’s initial BCA report was based on non-evasive (sic), non-destructive investigation. “Unless you start pulling wall sheets off and taking out windows, taking off architraves to see how it’s been built … you can’t ….tell how the wall’s been built..” (Tcpt, 26 September 2025, p 65(19- 25)) and “…the reason why I’m hesitant is that you’ve already had four or five chances to provide it’s been built properly – no-one has done that yet, and so that’s why I reluctant. Yes, the answer is ‘yes’ but how far have we got to go – it should have been obvious by now that we need to do something else other than just give me a piece of paper saying, ‘This is okay’”. (Tcpt, 26 September 2025, p 66(3-8)).
The Applicant also relied upon Hanna v Wollondilly Shire Council [2021] NSWLEC 1372 (Hanna) which involved a BIC and DA appeal. Hanna can be distinguished from the present BIC appeal, because in Hanna the court found at [98] that “All supporting plans/documents described in the BIC appeal satisfy the requirements of the relevant planning instruments, specifically s 6.25 of the EPA Act.”
The Applicant has been granted leave to rely upon amended plans in the DA proceedings (Ex F). However, the Applicant cannot seek leave to rely upon amended plans in the BIC proceedings as there is no express power to amend a BIC application (Scarf).
In summary, since the Applicant built the Unauthorised Sunroom in approximately 2019, the Council, in response to complaints from neighbours regarding lack of consent, loss of amenity through overlooking, light spill and noise, has tried on numerous occasions to resolve this issues with the Applicant. The Applicant lodged various applications between 2021 and 2023, and none of them resolved the issues. In the present proceedings Council has made its concerns known to the Applicant regarding confusing plans, lack of manufacturer’s details and the relevant installation requirements, together with its lack of understanding how the Unauthorised Sunroom has been built.
The Court cannot direct the Council to issue a BIC in relation to plans that do not accurately reflect the structure for which the BIC is sought.
I am not satisfied that the Applicant has discharged its persuasive burden that the Unauthorised Sunroom complies with the BCA, and is otherwise safe, healthy and fit for purpose.
I am not satisfied that the Applicant has provided sufficient information in accordance with s 289 of the EPAR and s 6.25(1) of the EPA Act.
In relation to Issue (1) in [15], the Applicant has failed to provide sufficient information to enable the Court to direct the Council to issue the BIC.
I shall dismiss the appeal in the BIC proceedings.

The fundamental principle that there is no power of the Court to grant retrospective development consent for building works already carried out was confirmed in Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177; (2021) 248 LGERA 300 at [29].
The DA is for the use of the Unauthorised Sunroom. The Applicant submits that the Court should uphold the DA appeal and grant the DA subject to deferred conditions of consent which would ‘regularise’ the failings in the BIC and its subsequent appeal. Under these circumstances I shall carry out an assessment of the DA.
The relevant legislation for assessment of the DA is s 4.15(1) of the EPA Act, beginning with a consideration of the application of environmental planning instruments.
The first major issue is the difficulty in assessing the DA plans. The town planning experts disagree on this point. Mr Boers’ response is, inter alia: “The plans submitted adequately point out development which has occurred without consent.” Mr Adamson’s response is, inter alia: “The plans provided do not reflect the existing works that have been undertaken as indicated in photographs with the supporting information accompanying the application as well as other site inspection photographs provided. Specifically, the existing western glazed elevation does not reflect the plans. The plans albeit ambiguous, appear to indicate smaller window openings.” (Ex 10, pp 28-29) Ms Trueman also observed in Ex 9, pp 10, 12-14 at [27](o) and (p) – set out above at [54(3)] that the plans do not accurately show the development as it has been built, including size of windows, balustrade on the east elevation, and the roof of the sunroom aligning with the original roof. Finally, the plans in Ex D and the amended plans in Ex F do not make clear that the works have already been carried out and contain notes that indicate future works in circumstances where the works have already been carried out, e.g. South Elevation prepared by M Groupe No. 8381/23 Sheet 6 “Notes”.
The second major issue is Contention No 2: Adverse heritage impact. The evidence has been set out above, and the relevant consideration for the Court is:
Section 4.15(1)(b) of the EPA Act: “the likely impacts of that development, including environmental impacts on both the natural and built environments, social and economic impact in the locality.”
Section 4.15(1)(c) of the EPA Act: “the suitability of the site for the development”.
Section 4.15(1)(e) of the EPA Act: the public interest.
Pursuant to s 57(1)(e) of the Heritage Act 1977 (NSW) approval is required of Heritage NSW. Both ‘The Priory’ and its curtilage (upon which the Site is located) appear on the State Heritage Register.
The objectives set out in cl 5.10(1) of HHLEP 2012.
Consideration to be given to the merit provisions set out in cll 1.3(b)(ii), 2, 2.2.2, 2.4.2, 2.4.3 of HHCDCP 2013.
During the hearing the parties disagreed regarding the impact of the State Heritage Register listing and the requirement for consent from Heritage NSW. The Applicant did not tick the box in its DA lodged with Council identifying the development as ‘integrated’. The Council carried out the initial heritage assessment internally. Upon the Applicant appealing to this Court, the Council referred the DA proceedings as integrated development to Heritage NSW. The response from Heritage NSW is the final attachment to Ex 9 being a letter dated 22 August 2025, advising it is unable to grant retrospective approval under s 57(1) of the Heritage Act 1977 (NSW) for completed works, nor for works that do not comply with a previous approval. However, notwithstanding that the terms of the Applicant’s appeal were amended during the hearing to insert the words ‘for the use of’, the penultimate paragraph of the letter remains relevant.
Mr Boers gave evidence in writing and under cross examination that he considers the impact of the Unauthorised Sunroom has an acceptable impact on the heritage item as it is viewed against the setting of the adjacent R3 zone development and cannot be viewed from ‘The Priory’. Ms Trueman strongly disagreed with Mr Boer’s assessment for the reasons set out in her evidence above.
I preferred Ms Trueman’s evidence because the Site is within the SHR listing of the curtilage to ‘The Priory’, and the state of the curtilage is considered to be ‘rare’, and the legible picturesque landscape has an integrity that is unique - according to the SHI.
Further, the type of materials may be acceptable if they were embedded in the adjoining R3 Medium Density zone, but they are definitely not acceptable from a heritage point of view. The first floor terrace was approximately 1.5m in depth and 5m wide, and therefore set back from the edge of the terrace. The Unauthorised Sunroom is 5m depth and 8m wide, with expansive glass windows walls which have not been built in accordance with the existing built form on the Site, and detract from the curtilage of ‘The Priory’.
Ms Trueman also addressed the objective of cl 5.10(1)(b) of HHLEP 2012 to conserve the heritage significance of heritage items including associated fabric, setting and views. “Given the very high level of significance of the setting of this place, an assessment of the impacts of development should pay particular regard to the setting and views.” (Ex 9, p 8).
Further, Ms Trueman notes the 2015 DA approved the upper level to be a recessive element set back and recessed behind the timber pergola. The pergola is a transitional element which soften the box-like form of the upper level.
I find the size of the Unauthorised Sunroom, the materials of which it is constructed (including its glazed walls), to be visually intrusive from the curtilage of ‘The Priory’.
The third major issue is the Applicant’s failure to consider cl 6.9 of HHLEP 2012: whether the Applicant has met the landscaping controls. I accept the submissions by the Council as set out in [55(38)] above, and repeat them.
I accept the evidence of Mr Adamson in relation to the assessment of merit in HHCDCP 2013 as set out above at [38(3), (7), (8), (10), (12), (13), (15)].
The DA does not meet the objectives of HHLEP 2012 cll 1.2(2)(a), (c) and (d), or the R2 Low Density Zone objective: “To maintain the identity of Hunters Hill by ensuring that new buildings are compatible with the garden suburb character and heritage values that distinguish the low density localities.”
In relation to s 4.15(1)(d) EPA Act, I note that the DA was notified and exhibited and that five written submissions were received and considered by Council.
In relation to s 4.15(1)(d), I have read the submissions from the objectors and heard from one objector at the commencement of the hearing. The Council has considered the objections as raised.
In relation to s 4.15(1)(e), I consider that giving consent to the DA in the circumstances of these proceedings is not in the public interest for the reasons set out above, and also as a matter of precedent.
In relation to:
Issue 2 at [15]: the Court cannot approve the DA subject to deferred commencement conditions ordering sufficient BCA certification and sufficient heritage remediation certification to enable the Council to issue the BIC prior to the DA becoming operative. At a basic level, the plans in Ex F are not in sufficient detail and lack accuracy to enable the Court to grant a DA.
Issue 3 [15]: on an assessment of the DA, the Applicant has failed to satisfy the Court in relation to the matters for assessment under s 4.15(1) of the EPA Act in order for the Court to grant consent to the DA.
I shall dismiss the appeal in the DA proceedings.