Phillips v Inner West Council

The Council's actions

1. The Consent was granted by the Council on 23 December 2019 for substantial alterations and additions to the existing dwelling house. The Applicant purchased the property after the Consent had been granted and, on 28 September 2021, made a modification application (the First Modification Application) to modify a number of aspects of the development the subject of the Consent. The First Modification Application originally included some of the modifications the subject of this appeal. However, the First Modification Application was subsequently amended to omit those modifications prior to its determination by the Council.
2. The Modification Application was made to the Council on 5 January 2022. It was publicly notified for 14 days from 20 January 2022 to 3 February 2022. The Council received two submissions. One submission raised concerns about loss of privacy following the carrying out of the development approved by the Consent and requested the installation of fixed louvres on the window described as "W12". The other submission raised concerns about the location of the proposed garage and the proposed arrangements for stormwater drainage.

The appeal

1. When the Modification Application had not been determined by the Council within the period after which it was taken to have been refused, on 26 July 2022 the Applicant appealed to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). On 8 August 2022, the Modification Application was determined by actual refusal.
2. The appeal is an appeal in Class 1 of the Court's jurisdiction. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.55(2), 8.9 and 8.15 of the EPA Act.
3. The Court arranged a conciliation conference between the parties, pursuant to ss 34AA(2)(a) and 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 24 November 2022. I presided over the conciliation conference. When the parties were unable to reach an agreement as to the terms of a decision in the proceedings that would be acceptable to them, I terminated the conciliation conference and proceeded to hear the matter. The hearing took place on 24 and 25 November 2022.

Jurisdictional prerequisites

1. The Modification Application indicates that the type of modification proposed is a modification in accordance with s 4.55(2) of the EPA Act. That sub-section is as follows: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.
2. Section 4.55(2) of the EPA Act imposes 4 separate jurisdictional prerequisites which must be satisfied before the power to modify a development consent can be exercised. These are: 1. The Court must be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (s 4.55(2)(a)). This prerequisite is discussed below at [14] to [15]. 2. The Consent authority must consult with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of any condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body. This prerequisite is not relevant in this appeal as no such condition was imposed on the Consent. 3. The Modification Application must be publicly notified in accordance with the regulations, if the regulations so require, or a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent. This prerequisite has been satisfied as the Council gave public notice of the Modification Application in accordance with the Inner West Council Community Engagement Framework Policy, for 14 days from 20 January 2022 to 3 February 2022. 4. Lastly, the consent authority must consider any submissions made concerning the proposed modification following its public notification. I have considered each of the 2 submissions received by the Council following the public notification of the Modification Application. As noted above at [8], one submission raised concern about the loss of privacy following the carrying out of the development approved by the Consent and requested the installation of fixed louvres on the window described as "W12". The Modification Application does not propose any change to the development that impacts on the privacy of any neighbouring property and in those circumstances a condition requiring the installation of fixed louvres on the window described as "W12" would not fairly and reasonably relate to the development the subject of the Modification Application and therefore cannot be lawfully imposed in the determination of the Modification Application (see Newbury District Council v Secretary of State for the Environment [1981] AC 578). The other submission raised concerns about the location of the proposed garage and the proposed arrangements for stormwater drainage. I have had regard to those matters in determining the Modification Application but have decided that they do not warrant the refusal of the application.
3. As noted above, s 4.55(2)(a) of the EPA Act imposes an express statutory limitation on the consent authority's power to modify the Consent in that the Consent can only be modified if the consent authority is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.
4. The Consent was granted on 23 December 2019 for alterations and additions to the existing dwelling on the Site. The Modification Application seeks approval to amend the Consent in the manner described at [2] above. It is not contended by the Council that the development to which the consent as modified relates is not substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified). In the context of the alterations and additions the subject of the Consent, I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified).

The Council's contentions

1. The Council contends that the following three elements of the Modification Application should be refused: 1. The enclosure of the front and rear elevations of the existing carport with gables and traditional style timber panel door to form a garage; 2. The retention and refurbishment of part of the sunroom at the front of the dwelling creating a partial verandah and new main entry; and 3. The installation of new French doors in the northern elevation of the dwelling (off "Bedroom 1").
2. The final element of the Modification Application involves the erection of a storage room adjoining the northern elevation of the dwelling. The Council does not oppose the modification of the Consent to authorise the erection of the storage room.
3. In the Council's Statement of Facts and Contentions (Ex 5) in was also contended that the Modification Application should be refused because: 1. It does not clearly depict the proposed modifications to the Consent (contention 3); 2. There are inconsistencies in relation to the survey information provided (contention 4); 3. The application does not provide sufficient information in that an amended landscape plan and stormwater plan are required as is a BASIX certificate (contention 5); and 4. Approval is not in the public interest (contention 6).
4. In opening, the Council indicated that contention 4 was no longer pressed. None of the other contentions was referred to by the Council in closing submissions. In relation to contention 3, I am satisfied that there was no real confusion in the minds of the Council or its expert in relation to the development for which the Modification Application seeks approval. In relation to contention 5, in my view the alterations and additions proposed by the Modification Application do not require any changes to the existing approved landscape plan or stormwater plan and a BASIX certificate (Ex E) (which was prepared in relation to the original package of alterations and additions) now accompanies the Modification Application. Finally, in relation to contention 6, I am satisfied that there would be no public interest in refusing the Modification Application if I am otherwise satisfied that its heritage impacts are acceptable.

The expert evidence

1. The Court was assisted by a joint expert report (Ex 3) prepared by the parties' heritage experts, Ms Vanessa Holtham for the Council and Mr James Phillips for the Applicant. Their evidence in relation to each of the three elements in dispute may be briefly summarised as follows.

The sunroom

1. Ms Holtham's evidence (Ex 3 at [3.3(i)] is that the open verandah "is an iconic and important element within Australian vernacular architecture". She says that the verandah creates "a transition zone between the external and internal environment of a dwelling" and that the verandah of the house the subject of the appeal is "an original and key feature of the dwelling" which "enhances the dwelling's contribution to the conservation area". Enclosing the verandah, in her opinion, is "contrary to the current approach to heritage conservation".
2. Ms Holtham also gave evidence that the proposed enclosure of the verandah is inconsistent with various aims in cl 1.2 of the Inner West Local Environmental Plan 2022 (LEP) as well as with various objectives and controls in the Leichhardt Development Control Plan 2013 (DCP). Her evidence (Ex 3 at [3.5]) is that the enclosure of the verandah will have a negative impact on the physical and historical environment, does not seek to conserve the heritage of Leichhardt nor will it enhance the urban environment.
3. Mr Phillips' evidence (Ex 3 at [3.19]) is that: "Just as an open verandah is an iconic and important element within Australian vernacular architecture, so too is the practice of enclosure of verandahs to provide additional internal spaces. The proposed infill of the verandah is partial, with the front door part of the open verandah. This allows an understanding of the original verandah and its extent. The infill comprises horizontal weatherboards and a series of infill windows, a traditional method of verandah infill and a method that is repeated all over the Balmain peninsula. The front verandah with partial infill maintains the dwelling's contribution to the conservation area."
4. Mr Phillips disagrees with Ms Holtham about whether the enclosure of the verandah is "contrary to the current approach to heritage conservation". His evidence is that, given the very mixed nature of the HCA and the fact that verandah enclosure is a long-standing practice, the existence of enclosed verandahs cannot be considered "contrary to the current approach to heritage conservation".

The garage

1. In Ms Hotham's opinion, the construction of a garage along the northern elevation of the existing dwelling will adversely impact the presentation of the dwelling within the streetscape. Her evidence is that the proposed garage will affect the dwelling's ability to be understood "in the round" because it will conceal the northern elevation of the dwelling, which she points out is the only elevation other than the front facing (western) elevation that can be seen from the street. On her evidence, the garage "will diminish the visual integrity of the dwelling and change its overall composition when viewed from the public domain which, in this instance, is a conservation area". Her preference would be to retain the presentation of the original fenestration along the northern elevation and for this to be viewed through the approved carport.
2. As with the verandah, Ms Holtham also believes that the proposed garage is inconsistent with various aims in cl 1.2 of the LEP and various objectives and controls in the DCP. Her evidence is that the proposed garage "will obscure views to the northern elevation of the dwelling and is an undesirable incremental change, which will change the character of the dwelling, undermine its significance, and set an unacceptable heritage precedent for other development in the vicinity and wider locality".
3. Mr Phillips gave evidence that the proposed garage will not have any adverse impact on the presentation of the dwelling within the streetscape. He points out that there are a number of other garages fronting the streets in the surrounding area and, with regard to the legibility of the existing dwelling, says that when the garage is erected the height of the steep-pitched side elevation of the dwelling will still allow it to be well-understood "in the round".

The French doors

1. Ms Holtham's evidence is that the proposed French doors to Bedroom 1 will result in the further degradation of the northern elevation of the dwelling which, she says, is undesirable. She also says that the French doors are inconsistent with some of the aims of the LEP and with various objectives and controls in the DCP.
2. Mr Phillips gave evidence that the proposed French doors will have only a minor impact on the northern elevation of the dwelling. He says that the doors are on a side elevation, do not form part of the major and dominant elevation of the dwelling and are of minimal visual impact.

Consideration of the LEP and DCP

1. The Council relies on alleged inconsistencies between the Proposed Modification and the aims of the LEP, on the one hand, and the objectives and controls of the DCP, on the other hand.
2. I have decided that the Modification Application should not be refused because of any alleged inconsistency with the aims of the LEP. The aims of the LEP set the framework within which the LEP operates: they are not provisions which control development: Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107 at [42]. The Proposed Modification is not, in my view, inconsistent with the aims of the LEP. Those aims are expressed in terms of such generality that it is difficult to see how the Proposed Modification could be said to be inconsistent with them.
3. The specific aims relied on by the Council are those contained in paragraphs (b) and (h) of cl 1.2 of the LEP. These are: (b) to conserve and maintain the natural, built and cultural heritage of Inner West; and (h) to create a high quality urban place through the application of design excellence in all elements of the built environment and public domain.
4. Regardless of the specific impacts the Proposed Modification may have, it cannot reasonably be said that they will have any impact on achieving these aims or that the Proposed Modification is inconsistent with them.
5. I turn then to consider the alleged inconsistency of the Proposed Modification with the objectives and controls in the DCP. The Council referred the Court to a wide range of provisions in the DCP but only a few of these were the subject of specific evidence by it expert, Ms Holtham. While I have had regard to all of the provisions referred to by the Council, I do not propose to deal in this judgment with provisions of the DCP that were not the subject of any specific evidence by the parties' experts.
6. To the extent that the Council relies on alleged inconsistency between the Proposed Modification and both the objectives and controls of the DCP, I have given more weight to the alleged inconsistency with the controls. Unlike zone objectives in a local environmental plan, which cl 2.3 of the Standard Instrument Local Environmental Plan requires a consent authority to have regard to in the determination of a development application, there is no specific requirement for a consent authority to have regard to the objectives of a development control plan. In my view the objectives referred to by the Council do no more than explain what the controls in the DCP are intended to achieve. They are not provisions that themselves control development and should not be applied as if they were.
7. I now propose to set out my findings in relation to each of the three elements of the Proposed Modification which are opposed by the Council. Where specific controls in the DCP were relied on by the Council in contending that the Modification Application should be refused, I have also set out my consideration of those controls.

The verandah

1. While I accept Ms Holtham's evidence that the open verandah is an iconic and important element within Australian vernacular architecture, I agree with Mr Phillips that the practice of enclosing verandahs to provide additional internal spaces is also important. In this case the original conversion of the verandah occurred many years ago. The exact timing is unknown. The Applicant tendered in evidence a photo taken by a previous owner of the house (Ex J) in which the verandah was enclosed and which the Applicant's heritage expert, Mr Phillips, said indicated that the verandah had been enclosed prior to 1960. Ms Holtham also said that, while she did not know when the verandah had been enclosed, she was prepared to accept that it was some time ago, "possibly 70 years". In those circumstances, it seems somewhat artificial to describe the Modification Application as proposing the enclosure of the verandah (as the Council did) rather than as the retention and refurbishment of an already enclosed verandah.
2. The Council referred to several provisions of the DCP which refer to the desirability of retaining verandahs, the undesirability of enclosing original verandahs and reinstating original verandahs when carrying out alterations and additions to existing dwellings. I accept that these are worthwhile goals; however, here the Applicant is not proposing the enclosure of an original verandah but, instead, is proposing to alter a previously enclosed verandah so that it is only partly enclosed, with the relocation of the front door to an open part of the verandah.
3. In my view the proposed alterations to the verandah are reasonable and appropriate which will be in harmony with, and will result in an improvement to the presentation of, the existing dwelling and streetscape. I note in this regard that Ms Holtham in oral evidence agreed that, leaving aside heritage impacts, the proposed materials and finishes are of high quality in architectural terms. I have decided that the proposed alterations to the verandah will not have the adverse heritage impacts contended by the Council and should be approved.

The garage

1. A substantial part of the proposed garage structure, including the solid northern wall, has previously been approved by the Council and is already in existence. It will have a traditional gable end and panel doors and, in my assessment, will complement the existing style and form of the existing dwelling and streetscape. As Mr Phillips pointed out, there are many examples of garage doors facing the street in the surrounding area and the proposed design of the garage door here will be a significant improvement on the appearance of many of the garage doors which were the subject of the expert evidence and which were pointed out during the site view. While Ms Holtham was concerned that the enclosure of the carport would adversely affect the ability to understand the dwelling in the round, I prefer Mr Phillips' evidence that the height of the steep-pitched side elevation of the existing dwelling will still allow the dwelling to be well understood in the round despite the enclosure of the carport.
2. The garage will be adjacent to a large uncharacteristic residential flat building and, in my view, will not be intrusive or detract from the existing dwelling or the character of the streetscape. It is a reasonable and appropriate addition to the existing dwelling and should be approved.

The French doors

1. I do not accept the Council's submission that the proposed French doors will result in degradation of the northern elevation of the dwelling or that they will have a negative impact on the heritage of Leichhardt. The doors will be on the side elevation of the dwelling behind the garage and will, as Mr Phillips said, be of minimal visual impact. The impact of the proposed French doors will be, in my assessment, of minimal heritage significance and does not warrant the refusal of the Modification Application.

Conclusion and the effect of the proposed modification

1. For the reasons I have set out above, the Modification Application should be determined by the grant of approval subject to the conditions in Annexures A and B. The parties each tendered a set of without prejudice draft conditions. Apart from minor wording changes, and an incorrect reference to the BASIX Certificate in the Council's conditions (Ex 7), there was no substantive difference between them and I have relied on the Applicant's version (Ex D) in the preparation of the conditions in Annexures A and B.
2. Three of the four elements of the development the subject of the Modification Application (being the sunroom, the French doors and the storage room) have already been carried out. (Initially, the Council contended that the northern wall of the existing carport had also been erected without approval; however, it ultimately conceded that this wall was included in the First Modification Application.) The effect of granting approval to the Modification Application will therefore be to authorise what has already occurred, although the authorisation will operate prospectively and not retrospectively - see Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 at [35].

Orders

1. The Court orders that: 1. The appeal is upheld. 2. Modification application MOD/2021/0570 is approved and development consent D/2019/327 is modified by amending condition 3 in the terms set out in Annexure A. 3. As a consequence of order (2) above, development consent D/2019/327 is now subject to the consolidated modified conditions of development consent set out in Annexure B. 4. Exhibits 1, 2, 3, 7, A, D, F, G, H, J and K are to be retained. Exhibits B, C, E, 4, 5 and 6 are returned. A Bradbury Acting Commissioner of the Court

Annexure A Annexure B 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: 13 December 2022