Windy Dropdown Pty Ltd v Warringah Council

Presumably, His Honour intended to accord the applicant the opportunity to obtain such approval as might be forthcoming from the Court on a merits appeal. The carrying out of illegal works generally is not an impediment to the consideration of an application on the merits ( Kouflidis & Ors v City of Salisbury (1982) 29 SASR 321; 49 LGRA 17; Longa v Blacktown City Council (1985) 54 LGRA 422; Ireland v Cessnock City Council (1999) 103 LGERA 285).

Following the approval of the original subdivision application, a dwelling house has been erected on Lot 14 and a further dwelling house is in the course of construction on Lot 13.

The legal status of the application for modification

Until Graham Brooks, the applicant's consultant heritage architect, was cross-examined, both parties had proceeded on the basis that the application for modification is seeking approval to levels of fill already achieved.

It is not now in dispute that the level of fill in Lot 14 is at the level for which approval is being sought. The present level of fill in Lots 12 and 13 is above the approved level but below the prospective level. The prospective level of fill is intended to be consistent with the height of concrete covers over junction pits in the drainage system. It is agreed that it is not a necessary engineering requirement for the proper functioning of the drainage system that the covers remain at the built height. They can be lowered.

There is a long line of authority in this Court, exemplified by the observations made by Cripps J in Longa v Blacktown City Council (1985) 54 LGRA 422, which supports the proposition that there is no power in a consent authority or the Court to approve unauthorised work which has already been carried out.

In Longa, Cripps J accepted that although it was not open to the council or the Court to approve a structure already erected on the land, other than perhaps pursuant to s 317A of the Local Government Act 1919 ("the LG Act 1919"), as it then stood, nevertheless it would be open for the builder to obtain building approval for future work in respect of the partly completed building that had been erected without council approval. It should be noted, however, that Longa was an appeal against an order for demolition of a partly erected building under s 317B of the LG Act 1919 and accordingly, the comments by Cripps J were strictly obiter dictum.

Furthermore, the observations by Cripps J in Longa appear to be inconsistent with his earlier obiter remarks in Lirimo Pty Ltd v Sydney City Council (1981) 66 LGRA 47 when he stated that "the inclusion of s 124 of the Environmental Planning and Assessment Act lead me to the view that an applicant is not precluded from obtaining a proper and valid application for consent to the use of land or the erection of a building notwithstanding the use or erection preceded the application for consent".

There is no reason to depart from the approach taken by me in Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council (1994) 82 LGERA 192 in respect of an application made under s 106 of the Local Government Act 1993 ("the LG Act 1993") to amend a building approval. I decided that consent could not be given to approve work already carried out. The approach was subsequently embraced by Pearlman J in Connell v Armidale City Council (Pearlman J, NSWLEC, 25 September 1996, unreported).

In Connell, Her Honour extended the principle which stands against the capacity to grant retrospective approval to the application of s 102 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act").

After considering a number of authorities, including Lirimo , Steelbond and Connell , in Herbert v Warringah Council (1997) 98 LGERA 270, Sheahan J found that s 102 requires approval of works prospectively and cannot be used to amend a consent where the works referred to in the application have already been carried out.

Although Her Honour in Connell appears to have considered the relationship between s 76, s 124 and s 102 of the EP&A Act (as it then applied) to conclude that s 102 could only have a prospective effect, it is not clear from the judgment of Sheahan J in Herbert how he reached the conclusion that "(t)he cases clearly find s 102 requires approval of works prospectively". The only case cited by His Honour in Herbert that bears upon the present issue is the ex tempore decision of the Chief Judge in Connell . In that case Her Honour was hampered by the circumstance that Mr Connell appeared without legal representation, a fact which she lamented in the judgment at p 4.

In the present case I have the benefit of full argument and submissions from counsel representing both parties.

It must first be observed that s 106 of the LG Act 1993 and s 96 of the EP&A Act are not in the same terms. Subsection (2) of s 106 expressly incorporates s 78 of the LG Act 1993 which provides that an application may be made by the person "seeking to carry out the activity" .

Pursuant to s 106(5) of the LG Act 1993, the amended approval replaces the original approval as from the date endorsed on the notice of determination of the application, which in context must be assumed to be the application for amendment. By contrast, s 96(4) of the EP&A Act provides that modification of the development consent is not to be construed as the granting of development consent but a reference to a development consent is a reference to the development consent so modified.

In Connell, Pearlman J was persuaded that s 76(2) (as it then was) contained words of prospective import, as I had observed in Steelbond.

Section 76A(1) of the EP&A Act is relevantly in the same terms as the former s 76(2) it replaced. Section 76A(1) expressly proscribes the carrying out of development unless development consent has been obtained and is in force and the development is carried out in accordance with the consent and the instrument.

Notwithstanding a foreshadowed argument that a modification of development consent has effect retrospectively by dint of s 96(4), in contrast to an amended approval under s 106(5) of the LG Act 1993, it is difficult to discount the overall aim of the scheme of the EP&A Act. In my view the aim can be distilled from a reading of s 76A. Development generally shall not be carried out where consent is required unless the consent has been obtained and is in force and the development is carried out in accordance with the consent. If that is a correct perception of the operation of the EP&A Act in respect of the control over the carrying out of development, then the Court needs to be persuaded that s 96 can be marshalled in support of a condonation of development already carried out in breach of the existing terms of a consent.

In answer to questions in cross-examination by Mr Wilson, Mr Brooks indicated that although the level of fill referred to in the application for modification had been present on the site earlier this year, some of that fill had been removed. It became evident on the site inspection, and conceded by Mr Wilson on behalf of council, that the level of fill on Lots 12 and 13 at least is presently below that contemplated in the application although, as I have already pointed out, it is above the level shown on approved plans.

In Jacklion Enterprises Pty Ltd v Sutherland Shire Council (Pearlman J, NSWLEC, 8 July 1998, unreported) Pearlman J was content to assume, but only for the purpose of determination of the question of law in that case, that Steelbond , Connell and Herbert established the proposition that there is no power to grant retrospective consent for development already carried out. It was not necessary for Her Honour to further consider the proposition in Jacklion because she decided on the facts of the case that the modification application did not seek to obtain retrospective consent. However, Jacklion is authority for the principle that a condition which controls the impact of a subdivision may be modified pursuant to s 102, notwithstanding that building work controlled by the condition has been carried out in a manner contrary to the condition.

In Steelbond at 195 there is a discussion regarding the suggestion that s 124(3)(b) furnishes a limited opportunity to obtain a development consent provided it relates only to a continuing breach. However, Mr Leggat argues that the reference to "that consent" in s 124(3)(a), as distinct from s 124(3)(b), does not compel the maintenance of what he describes as the illogical distinction between development consent for use of an unauthorised building and development consent for the construction of an unauthorised building. To support this line of argument he has regard to the opening words of subsection (3) which he says clearly contemplate the failure to obtain a consent in the first place.

Mr Leggat's submission certainly has merit if the consent contemplated by the Court pursuant to s 124(3)(a) is referable to circumstances relating to the future use of an illegal structure. The remaining question is whether s 124(3) can be applied to circumstances where development has been carried out otherwise than in accordance with an existing consent or the conditions thereof and the alleged breach can only be remedied retrospectively.

It is not necessary in this case to reach any final decision on that question in so far as it relates to the prospect of a development consent arising under s 124(3).

Section 124(3) does not contain any reference to modification of a development consent. The relevant phrases are "failure to obtain a consent" and "to enable a development application to be made" . Cowdroy J did not make any orders pursuant to s 124(3). The class 4 proceedings were not adjourned to enable a development application to be made. Final orders were made. Those orders were stayed until these proceedings are concluded. The effect of s 124(3) therefore has little factual bearing on the present application or on the prospective or retrospective effect of an application for modification.

The language of s 96 (or the former s 102) itself does not mandate against retrospective development. The only prospective language is the reference to "the proposed modification" in subsection 1A(a). A practical purpose of s 96 is to provide an opportunity to deal with anomalies in design unforeseen at the date of grant of development consent or, as the history of the legislation suggests, to legitimise partial changes that do not have the effect of radical transformation. The original concept of the modification of the details of a consent appears to have been reintroduced by s 96(1), although not in the same terms.

Subsection (4) of s 96 is the same as the previous subsection (4) of s 102. It expressly distinguishes modification of a development consent from the granting of development consent, thereby suggesting that at least in some respects the consideration and approval of an application for modification is to take place in a different context to the consideration of an application for development consent. Furthermore, the subject of an application made pursuant to s 96 is the development consent, not the development itself.

One is then left to ponder how the express words in s 76A can be reconciled with the lack of a concise formulation in s 96 and a broad construction of s 124(3)(a).

Section 76A as well as s 78A clearly operate in the context of a prospective proposal whereas a modification of consent pursuant to s 96 operates retrospectively by dint of s 96(4). A modification may or may not alter some aspect of the development itself. That some degree of change is contemplated is recognised by the constraint in s 96(1A) and (2) that the development to which the consent as modified relates must be substantially the same development.

Even if s 124(3) does not ameliorate the strict application of s 76A, as Mr Leggat suggests it does, a broad construction of s 96 clearly leaves that potential open. The effect of s 96(4) is that any development already carried out in conformity with the consent as modified is deemed to have been carried out in accordance with the consent so modified. On that basis no conflict with s 76A will arise as the development is deemed to have been carried out pursuant to a consent.

Moreover, the broad construction of s 96 leads to a practical result that enables a consent authority to deal with unexpected contingencies as they arise during the course of construction of development or even subsequently, provided of course that the development to which the consent as modified relates is substantially the same development.

It follows from the foregoing analysis and reasoning that in my view an application that relates to development which has been already carried out can be made pursuant to s 96. The Court is therefore in a position to consider the subject application on the merits.

The above conclusion renders it unnecessary to deal with submissions made by Mr Leggat relying on the decision of Hemmings J in Hooper & Anor v Lucas & Ors (1990) 71 LGRA 27. That case appears to be authority for the proposition that under the LG Act 1919 there was power to grant approval for building work that depended for its efficacy on unauthorised building work. Mr Leggat seeks to draw an analogy in respect of the present application to modify the levels of fill in Lots 12 and 13 above those already achieved without the required approval. The Court must nevertheless determine whether the fill placed in Lot 14 can be approved retrospectively as a consequence of granting the application to modify the development consent. If the fill in Lot 14 can be approved in that way then the Court can make a determination in respect of the existing fill on Lots 12 and 13 on the same basis.

The whole site known as Windy Dropdown is bounded on the south by Molong Street, on the east by an unformed road and a cliff top public reserve overlooking the ocean, and on the north and western boundaries by existing residential allotments. The site slopes from the south and west boundaries down to a low point in the north-east corner of the site. The original Windy Dropdown house is located at the high point of the site adjacent to the southern boundary.

It is a condition of development consent granted 12 March 1998, as subsequently modified, that the development comply with the provisions of a submitted Conservation Plan prepared by Graham Brooks & Associates Pty Ltd dated 2 January 1998.

The Conservation Plan recognises that as a matter of policy further subdivision of the property and erection of free standing houses is acceptable provided the overall topography and landscape nature of the site is respected and the essential north-eastern views from the houses are retained. As I have said, the erection of dwelling houses has already commenced on the site.

It is a condition of the development consent as modified that a Landscape Preservation Area be established in the north-eastern sector of the site, as indicated on plans dated 9 September 1998. The conditions of consent also constrain all proposed development, including paved landscape areas, dwellings, garaging, outbuildings, clotheslines and any structures associated with dwellings, to within identified building areas detailed in the Conservation Plan.

Approved drainage and sewerage works have been carried out within the Landscape Preservation Area. The council advised the applicant these works were satisfactory in a letter dated 27 August 1998.

During the construction of the drainage and sewerage works an existing grey concrete wall on the eastern boundary of the land and around part of the northern boundary was demolished and a new wall was erected in the same location.

The linen plan for the subdivision was released on 20 October 1998.

The Conservation Plan deals specifically with the protection of the extensive views available from the Windy Dropdown house to the north-east. It cannot be said that the proposed change of levels will impede that prospect.

The intention that the Landscape Preservation Area be preserved in its natural state was generally frustrated by the approved works carried out in conjunction with the drainage and sewerage system.

The original natural ground levels of the site along the eastern boundary adjacent to Lots 11, 12, 13 and 14 were consistent with the levels of the coastal reserve to the east of the site. The fill already placed in that area has resulted in a disjunction between the area inside the wall and the coastal reserve east of the wall. Arguably the wall has always had that effect.

It is contended in the Conservation Plan and by consultant experts that the original wall subscribed to a sense of enclosure of the site. There is some dispute as to whether the sense of enclosure was one experienced by the occupiers of the site or by persons viewing it from the outside as an estate or compound.

The Court accepts that the proposed fill will not compliment the landscape character and public use and enjoyment of the coastal reserve. Firstly, because of the disjunction already referred to. Secondly, there is the prospect of persons within the site overlooking the coastal reserve thereby detracting to some extent from the amenity of the scenic track across the headland. Conversely, it will allow users of the track to be aware of activities on the site in the area between the houses and the wall. Realistically, it is doubtful whether persons outside the site have been able to perceive any continuity between the reserve and the land in the Landscape Preservation Area since the time the original wall was erected many years ago.

It is suggested by the council's experts that the increase in levels of the fill will have the effect of increasing the prominence of the proposed new dwellings and thus reduce the visual prominence of the original house.

The applicant's consultant heritage architect told the Court that in his opinion the degree of adverse impact from the introduction of raised land levels behind the concrete boundary wall as claimed by the council is greatly exaggerated. He points out that the majority of any such impact has already been established and approved by the principle that accepted the introduction of new dwelling houses along the north-eastern part of the site. These houses are and will be visible from Windy Dropdown itself and from prominent parts of the walkway adjacent to the site, including a nearby lookout.

The council's consultant conservation landscape architect maintains his opinion that the character of the land within the enclosed site will be changed markedly from being a natural vegetated area to a rather bare space in which built forms and rocks will predominate. There is some substance in that view. The issue is whether that change is sufficiently material to justify refusal of the application.

The Court has the benefit of direct oral evidence from the applicant's consultant heritage architect who was overseas at the time of the hearing before Cowdroy J and thus not available for cross-examination.

I agree that the impact of raising the levels and the loss of vegetation within the Landscape Preservation Area is not as significant as the council's witnesses would have the Court believe.

The increase in the level of fill beyond that recognised by the approved works as executed plans is marginal compared to the increase over levels shown in the plans approved by the development consent.

Stripped of the opprobrium of the applicant carrying out works illegally, the proposal to raise the level of the fill is not such that demands refusal of the application on its town planning merits.

In particular, the concept of the sense of enclosure created by the wall along the eastern boundary of the site has been lost by the erection and the prospect of the further erection of substantial dwellings on the eastern facing lots. It is the Court's opinion that it is the approved structures that will deprive the site of its former relationship with the coastal reserve and the internal amenity provided by the enclosing wall, if they ever existed.

In my opinion, there is no sound planning reason why the application for modification should be refused, provided the level of fill placed does not exceed the levels postulated by the placement of the existing cement covers over the inspection pits.

The impact on the Windy Dropdown house itself is insignificant.

Notwithstanding the approach taken by Cripps J in Woollahra Municipal Council v Alcaine (1986) 59 LGRA 40 and the Court of Appeal in Woollahra Municipal Council v Barlow & Ors (1988) 66 LGRA 248, the approval of the application for modification of development consent is in no way intended to constrain Cowdroy J in the exercise of any further discretion in the class 4 proceedings. The considerations he may take into account if it is necessary to make any further decision in that matter are obviously broader than the planning merits taken into account in these proceedings ( Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335).

The applicant has been successful in mounting an argument that the consent can be modified to reflect the levels of fill identified by council's town planner in Table 1 to her report to the council meeting on 16 November 1999. The approval goes no further than that.

The final text of any amended or modified condition has not been formulated in the course of the proceedings and accordingly, the parties are directed to bring in short minutes of appropriate orders to reflect the Court's decision.

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