Tindall v Inner West Council

Jurisdictional prerequisites

1. The Modification Application indicates that the type of modification proposed is a modification in accordance with s 4.55(1A) of the EPA Act. That sub-section is as follows: (1A) Modifications involving minimal environmental impact 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 proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), 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 any period prescribed by the regulations or provided by the development control plan, as the case may be.
2. The power to modify a development consent has been described as being "beneficial and facultative" (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 at 475, 482). However, as Preston CJ points out in Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 ('Buyozo') (at [54]), the beneficial and facultative power to modify a development consent is subject to constraints. Before the power in s 4.55(1A) can be exercised, the consent authority must be satisfied that the proposed modification is of minimal environmental impact. In Buyozo, Preston CJ explained (at [58]) that this "necessitates a comparison of the environmental impact of the development for which the consent was originally granted with the environmental impact of the development to which the consent as modified relates and then an evaluation of whether any change in environmental impact can be described as 'minimal'".
3. The environmental impact of the dormer window is confined to its visual impact on the streetscape and on the HCA. I will discuss these impacts in greater detail below. For the reasons given at pars [47] to [50], I have concluded that the environmental impact of the proposed modification is minimal and that the modification can be effected in accordance with s 4.55(1A).
4. Section 4.55(1A) also requires the consent authority to publicly notify the Modification Application and to consider any submissions made concerning the proposed modification. In this matter the Council gave public notice of the Modification Application between 20 May and 3 June 2021. There were no submissions received by the Council in response to the public notification, of the application.
5. Another constraint on the power of modification in s 4.55(1A) is that the consent authority must be satisfied that the development to which the consent as modified relates is substantially the same as the development for which the consent was originally granted (s 4.55(1A)(b)). I find that the development to which the Consent as modified will relate is substantially the same as the development for which the consent was originally granted. The Consent, as originally granted, authorises the making of a number of alterations and additions to the existing house but required the deletion of the dormer window. The modification of the Consent to remove the condition requiring the deletion of the dormer window will not result in a development that is substantially different to that which was originally approved. The Council does not contend otherwise.
6. Section 4.55(3) then requires a consideration of the matters under s 4.15 but only those relevant to the aspects of the development to which the modification application relates: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 at [51]. In this appeal the consideration of s 4.15 matters is limited to the impacts associated with the modification of the Consent to allow the construction of the dormer window.

Leichhardt Local Environmental Plan 2013

1. The Leichhardt Local Environmental Plan 2013 (LEP) has a clear focus on environmental and cultural heritage. Included in the aims of the LEP in cl 1.2(2) are these particular aims: (c) to identify, protect, conserve and enhance the environmental and cultural heritage of Leichhardt, (l) to ensure that development is compatible with the character, style, orientation and pattern of surrounding buildings, streetscape, works and landscaping and the desired future character of the area, (o) to prevent undesirable incremental change, including demolition, that reduces the heritage significance of places, conservation areas and heritage items.
2. The Site is within Zone R1 General Residential under the LEP. Development for the purposes of a dwelling house may be carried out with development consent on land within that zone.
3. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. Relevantly, an objective of Zone R1 is "to provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas".
4. Clause 5.10 of the LEP deals with heritage conservation. The objectives of the clause include the conservation of the environmental heritage of Leichhardt and the conservation of heritage significance of heritage items and heritage conservation areas. Clause 5.10(4) provides that the consent authority must, before granting consent under that 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.
5. The existing house is not listed as a heritage item in the LEP but is included in the HCA. The Site sits on the very edge of the HCA - properties on the other side of Cecily St opposite the Site are located outside the HCA.

Leichhardt Development Control Plan 2013

1. The Leichhardt Development Control Plan 2013 (DCP) also contains provisions relevant to the Modification Application.
2. In Element C1.0, the DCP sets out a number of urban design objectives. Objective O6 is: "Compatible: places and spaces contain or respond to the essential elements that make up the character of the surrounding area and the desired future character. Building heights, setbacks, landscaping and architectural style respond to the desired future character. Development within Heritage Conservation Areas or to Heritage Items must be responsive to the heritage significance of the item and locality."
3. Element C1.3 of the DCP deals with alterations and additions. The objectives of the section are relevantly (O1) to ensure that development: "a) complements the scale, form and materials of the streetscape including wall height and roof form; b) where an alteration or addition is visible from the public domain it should appear as a sympathetic addition to the existing building; c) makes a positive contribution to the desired future character of the streetscape and any heritage values associated with it; d) is compatible with neighbourhood character, including prevailing site layout."
4. The DCP seeks to achieve these objectives through the controls set out in C1 to C9. The controls relevant to this application are controls C1 and C7. The Council relies on the following parts of those controls: "C1 The overall form of alterations and additions shall: a) have regard to the provisions within Appendix B - Building Typologies of this Development Control Plan; b) be compatible with the scale, form and material of the existing dwelling and adjoining dwellings, including wall height and roof form; c) retain any building and streetscape consistencies which add positively to the character of the neighbourhood (e.g. architectural details, continuous rows of dwellings, groups of similar dwellings, or the like); d) maintain the integrity of the streetscape and heritage significance; C7 Alterations and/or additions to the front of an existing dwelling must ensure that important elements of the original character of the building and its setting are retained, restored or reconstructed, where it contributes to the desired future character, including but not limited to: … (e) roof forms"
5. The DCP contains detailed provisions relating to heritage conservation areas and heritage items in Element C1.4. These have the following objectives relevant to this appeal: "O1 Development: a) does not represent an unsympathetic alteration or addition to a building; b) encourages the protection, restoration, continued use and viability of buildings for their original purpose; c) encourages the removal of unsympathetic elements; d) is compatible with the setting or relationship of the building with the Heritage Conservation Area in terms of scale, form, roof form, materials, detailing and colour of the building and conforms with the Burra Charter; e) conserves and enhances the fabric and detail of a building that contributes to the cultural significance of the building in its setting;"
6. These objectives are achieved through a number of controls of which the Council says the following are relevant to this application: "C2 The fabric of an existing building is to be the subject of appropriate conservation practices including: … (b) conservation of original elements; C3 Development of dwellings within Heritage Conservation Areas must: (a) not include the demolition of the internal walls and roof form, including any existing chimneys, of the front two rooms of the dwelling; (b) retain the major form, scale and materials of the existing structure as described in (a); C5 Consideration of roofing materials for additions should have regard for compatibility with the original roof, as well as for the context of the setting (such as if a dwelling is part of a group of similar dwellings). C6 Within Heritage Conservation Areas, whole roof forms should be retained where possible and roofs of additions should be subservient to the main roof (in scale, form, location and materials). Changes to the form of the existing roof or extension of the ridge cannot be supported."
7. As well as being within the HCA, the Site is also within the Nanny Goat Hill Distinctive Neighbourhood (Distinctive Neighbourhood) under the DCP (Element C2.2.4.2). This area overlaps with and is larger than the HCA. It contains a number of sub-areas and the Site is within the Eastern Residential Sub Area.
8. The DCP contains a number of provisions relevant to the Distinctive Area with the stated objective (O1) of facilitating development that "is consistent with the Desired Future Character and Controls for the Distinctive Neighbourhood". The controls relevant to this application are as follows: "C1 Preserve the character of the area by keeping development consistent in architectural style, form and material. C5 Preserve and enhance the consistent rhythm in the residential streetscapes created by the regular allotment sizes, predominance of detached dwellings, hipped and gabled roof forms and the gradual stepping of dwellings down steeper streets. C7 Preserve and enhance the value of Heritage Items and Heritage Conservation Areas identified in Leichhardt Local Environmental Plan 2013. C14 Development is to be consistent with any relevant Sub Area objective(s) and condition(s)."
9. The DCP contains further provisions specifically relating to the Eastern Residential Sub Area (C2.2.4.2(a)) with the stated objective (O1) of facilitating development that is consistent with the Desired Future Character and Controls for the Distinctive Neighbourhood. The controls of relevance are: "C1 Preserve and enhance the particular residential streetscape character unique to the Eastern Residential Sub Area… C4 Development is to be consistent with any relevant objectives and controls within the Nanny Goat Hill Distinctive Neighbourhood."
10. Finally, the DCP contains specific controls relating to dormer windows. These are in Element C3.4 and relevantly provide (C1) that dormer windows "will not be supported where the height of the roof measured from the gutter to the ridge is less than 2.5m."

The issues

1. The Council's Statement of Facts and Contentions (Ex 1) raised two contentions: 1. In the light of the decision of the Court in Buyozo, the Consent Authority lacks the power to grant consent to the proposed modification application. 2. The proposed modification results in adverse streetscape and heritage impacts on the Brennan's Estate Heritage Conservation Area and is an (sic) inconsistent with the desired future character of the area.
2. At the commencement of the hearing the Council indicated that the first contention was no longer pressed and said that the issues for the Court to determine were: 1. Whether the proposed changes will adversely affect the heritage significance of the conservation area? 2. Is the proposed dormer window compatible with the desired future character of the area?
3. These issues overlap and it will be convenient to deal with them together.

The evidence

1. The Court was assisted by a joint expert report (Ex 2) prepared by the parties' heritage experts, Ms Chery Kemp for the Applicant and Mr Sinclair Croft for the Council.
2. The heritage experts agree (Ex 2, p 4) that in that part of Cecily St that is within the HCA, there are five dormer windows to the front of existing houses which are "original dormer windows". They explained that these are dormer windows that are shown in a 1943 aerial photo of the locality and which they consider likely to have been part of the original construction. The experts also agree that within the same area there are a total of 17 properties with a total of 21 front dormer windows visible from the street, most of which have been constructed since 1943 and are therefore not considered to be "original". These comprise some 18% of all the houses in that part of Cecily Street.
3. The principal area of disagreement between the experts relates to the impact the approval of the Modification Application will have on the desired future character of the HCA.
4. The Council's expert, Mr Croft, says the relatively small number of houses with original dormer windows demonstrates that dormer windows were not part of the original streetscape within the HCA. His evidence is that the dormer windows constructed since 1943 are unsympathetic development that should not be taken into account in determining the desired future character of the HCA and that the approval of additional dormer windows will continue to erode the character of the area.
5. The Applicant's expert, Ms Kemp, says that, while dormer windows may be uncommon elsewhere in the HCA, there are numerous examples in Cecily St itself; so many that, in her opinion, dormer windows should be considered to be part of the character of this street within the HCA. Her evidence is that it is not uncommon for there to be variations in the character of different parts of a heritage conservation area and that is what is evident in Cecily St.

The impact on the HCA and compatibility with desired future character

1. There is some overlap in the various planning controls relevant to the issues raised by the Council.
2. Clause 1.2(2) of the LEP, refers to compatibility with "the character, style, orientation and pattern of surrounding buildings, streetscape, works and landscaping and the desired future character of the area".
3. Clause 2.3(2) of the LEP states that one of the objectives of the R1 General Residential zone is to provide housing that is "compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas". This compatibility seems to be locally focussed requiring compatibility of proposed development with its immediate surrounds.
4. Clause 5.10(4), which deals with heritage, provides relevantly that before granting consent under that clause in respect of development within a heritage conservation area, the consent authority must consider the effect of the proposed development on the heritage significance of the area concerned.
5. The DCP contains provisions that variously require consideration to be given to the heritage significance "of the locality" (C1.0, O6), to the desired future character "of the streetscape" (C1.3, O1(c)), to compatibility "with the neighbourhood character" (C1.3, O1(d)), to compatibility "with the scale, form and material of the existing dwelling and adjoining dwellings" (C1.3, C1(b)), to compatibility "with the setting or relationship of the building with the Heritage Conservation Area" (C1.4, O1(d)), to the preservation and enhancement "of the consistent rhythm in the residential streetscapes" (C2.2.4.2, C5) and, finally, to the preservation and enhancement of "the particular residential streetscape character unique to the Eastern Residential Sub Area".
6. When these provisions are taken together, they seem to me to require consideration of whether the proposed modification is compatible both with surrounding development in the Cecily St streetscape and also with the HCA more generally.

Desired future character

1. Various provisions of both the LEP and DCP refer to "desired future character".
2. In relation to what constitutes the "desired future character" of the area, the Applicant drew the Court's attention to the decision of Preston CJ in Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115. In that case his Honour held that references to desired future character in the Woollahra Local Environmental Plan 2014 could not be interpretated by reference to a development control plan. His Honour said (at [46]): "the provisions of a development control plan cannot be used to interpret the provisions of a local environmental plan, unless the provisions of the local environmental plan expressly refer to the provisions of the development control plan for that purpose."
3. At [50] his Honour clarified that it is permissible to have had regard to the desired future character provisions in a development control plan in interpreting the LEP, but that doing so is not mandatory.
4. The LEP in this appeal does not expressly refer to the provisions of the DCP for the purpose of interpreting the meaning of the phrase "future desired character" when used in the LEP. However, while the phrase appears in the LEP in a number of different provisions, the only one of relevance to this appeal is in the general aims of the LEP in cl 1.2(2). The other references to desired future character occur in the DCP itself and there can be no doubt that the provisions of the DCP can, and should be, taken into account when construing those references.
5. Mr Croft's oral evidence was that the desired future character of the Nanny Goat Hill Distinctive Neighbourhood should be drawn from the controls set out in Element C2.2.4.2 (at p 65 of Ex 3). I have set out the controls relied upon by the Council at par [26] above. Mr Croft's evidence is that "the dormer does not respond to the essential elements that make up the character of the surrounding area and the desired future character of the Nanny Goat Hill Distinctive Neighbourhood, being main roof forms without dormer windows" (Ex 2, p 7).
6. The Applicant's expert, Ms Kemp, gave evidence (Ex 2, p 8) that the front dormer window is consistent with the desired future character of the area as it preserves the "cottage" character of the subject house. Her evidence is that the front dormer window is in keeping with and consistent with similar front dormer windows on similar houses in the street and the materials proposed for the front dormer window are compatible with the materials of the subject house.

Findings on impact and compatibility

1. I accept the Council's evidence that dormer windows were not characteristic of houses in the HCA pre-1943. There were only five in Cecily St (Ex 2, p 4) and the experts are agreed that only two of these were in timber houses similar to the house the subject of this appeal. It is also clear, both from the expert evidence and from my own observations on the site inspection, that dormer windows are uncommon (if they exist at all) in houses throughout the rest of the HCA.
2. The experts agree (Ex 2, p 4) that there are now a total of 17 properties in that part of Cecily St within the HCA with a total of 21 dormer windows visible from the street. The experts agree that these make up some 18% of all the houses in Cecily St (Ex 2, p4).
3. The evidence establishes that, while dormer windows may not be common in the HCA as a whole, they are relatively common and certainly not uncharacteristic of houses in Cecily Street. The addition of another dormer window would, in my opinion, go relatively unnoticed whether viewed in the context of Cecily St itself or as part of the wider HCA. That may not be the case if the Site was located in a street elsewhere in the HCA in which there are currently no houses with dormer windows. A new dormer window in such circumstances may well not be compatible with its immediate surroundings or the HCA more generally and might be found to have an adverse impact on the HCA and its desired future character. But that is not the case in Cecily St, where the addition of another dormer window in a street where there are already so many would be barely perceptible. In this regard I agree with the Applicant's expert, Ms Kemp, that it is not uncommon for there to be variations in the character of different parts of a heritage conservation area and that is what is evident in Cecily St.
4. For those reasons, I find that the dormer window proposed would be compatible both with the streetscape of Cecily Street and the local area, and will not have a material adverse impact on the HCA. In those circumstances, and noting that the Council's heritage expert had no concerns about the specific design of the dormer window the subject of the Modification Application, the Modification Application should be approved.
5. The Court orders that: 1. The appeal is upheld. 2. Modification Application No.MOD/2021/0185 is approved and Development Consent No.DA/2020/0974 is modified in accordance with Annexure A by deleting condition 2. 3. As a consequence of order (2) above, Development Consent No. DA/2020/0974 is now subject to the consolidated modified conditions of development consent set out in Annexure B. 4. The exhibits are returned except for exhibit A.

Acting Commissioner of the Court (Annexure A) (122425, pdf) (Annexure B) (158671, pdf)

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