Tindall v Inner West Council [2021] NSWLEC 1795

Land and Environment Court New South Wales

Medium Neutral Citation: Tindall v Inner West Council [2021] NSWLEC 1795 Hearing dates: 13 December 2021 Date of orders: 30 December 2021 Decision date: 30 December 2021 Jurisdiction: Class 1 Before: Bradbury AC Decision: 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. Catchwords: MODIFICATION APPLICATION – residential development – modification to remove consent condition requiring deletion of dormer window – impact on heritage conservation area – compatibility with desired future character of the area Category: Principal judgment Parties: John Tindall (Applicant) Inner West Council (Respondent) Representation: Counsel: M Driscoll (Solicitor) (Applicant) S Turner (Solicitor) (Respondent)

Solicitors BCP Lawyers & Consultants (Applicant) Inner West Council (Respondent) File Number(s): 21/259164 Publication restriction: Nil

Judgment 1. COMMISSIONER: The Applicant appeals from the Council's refusal of an application to modify development consent No. DA/202/0974 granted by the Council on 22 January 2021 (the Consent) in relation to the land described as Lot 1 DP 1217724 and known as 15 Cecily Street, Lilyfield (the Site). 2. There is an existing house on the Site. It is not a listed heritage item but is located within the Brennan's Estate Heritage Conservation Area (HCA). It is also within The Nanny Goat Hill Distinctive Neighbourhood and Eastern Residential Sub-Area. The existing house is shown in Figure 1: Figure 1 - the existing house 1. The Consent approved the carrying out of alterations and additions to the existing house which included the construction of a dormer window on the eastern elevation. All of the alterations and additions for which development consent had been sought were the subject of the development consent granted by the Council except for the dormer window. Condition 2 of the Consent required the submission of amended plans deleting the dormer window and some consequential amendments to the consent relating to the installation of a skylight and solar panels. 2. The proposed dormer window is shown in Figure 2: Figure 2 - the proposed dormer window 1. On 11 May 2021, the Applicant lodged an application with the Council to modify the Consent by deleting condition 2 (Modification Application). The effect of the modification sought is to allow the construction of the dormer window on the eastern elevation of the existing house. The Council refused the Modification Application on 17 August 2021 and on 10 September 2021 the Applicant appealed to the Court against that refusal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. 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 13 December 2021. I presided over the conciliation conference. When the parties were unable to reach an agreement to resolve the dispute, I terminated the conciliation conference and proceeded to hear the matter. The hearing also took place on 13 December 2021. 3. A site inspection took place in the company of the parties' representatives on 13 December 2021. This enabled the Court to see the Site, other houses in Cecily St which have existing dormer windows and some other parts of the HCA. The parties agreed that evidence of the site inspection may be taken into account on the hearing of the appeal.