Bilotta v Inner West Council

[2025] NSWLEC 1626

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bilotta v Inner West Council [2025] NSWLEC 1626

Hearing dates:

20 August 2025

Date of orders:

02 September 2025

Decision date:

02 September 2025

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent D/2018/25 is modified in the terms in Annexure A.

(3) Development consent D/2018/25 for the demolition of an existing dwelling and the construction of a new dwelling, as modified by the Court, is Annexure B.

(4) Exhibits 1 and 2 are returned, the remaining exhibits are retained.

Catchwords:

APPEAL – modification application – modification of a dwelling consent – modification to the roof pitch, lift overrun and window opening – whether appropriate in context

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 88

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979 (NSW), ss 34AA, 36

Suitors’ Fund Act 1951 (NSW), ss 6A, 6C

Inner West Local Environmental Plan 2022, cll 5.10, 6.9

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Sch 6, s 6.28

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11

Cases Cited:

Bilotta v Inner West Council [2022] NSWLEC 1058

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Franco Bilotta (First Applicant)
Barbara Bilotta (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
P Tomasetti SC (Applicant)
T To (Respondent)

Solicitors:
Dilan Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2024/246625

Publication restriction:

No

Judgment

1. COMMISSIONER: Louisa Road, in Birchgrove, is the single access road servicing a peninsula where the Parramatta River opens to Sydney Harbour. Houses on both sides of Louisa Road enjoy water views. At 93 Louisa Road, Mr and Mrs Bilotta have the benefit of a development consent, granted in 2018, for the construction of a dwelling house and basement parking. After a number of modifications to the consent were made by Inner West Council (the Council), the dwelling house is nearing completion, and Mr and Mrs Bilotta seek to modify the consent further by altering the design of the lift overrun and increasing the roof pitch and height, and installing a window with louvres on the eastern elevation. The modification application was refused on 18 June 2024. The applicants appeal against that decision, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. Whilst the Council now agrees to the modification in relation to the window opening, it remains opposed to the grant of the modification application with respect to the lift overrun and the increased roof height. The Council’s position is that the increased bulk associated with the increased roof height exacerbates the bulk of the dwelling relative to its neighbours, and is uncharacteristic in the heritage conservation area.

3. For the reasons that are set out below, I have determined that the proposed modification to the roof ridge and lift overrun is acceptably designed and appropriate in its context, given the varying roof forms and architectural styles of dwellings along Louisa Road.

The background to the hearing

4. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference was presided over by the late Acting Commissioner Byrne on 17 December 2024. The parties were unable to reach an agreement at the conciliation, and the matter proceeded forthwith to a hearing pursuant to s 34AA(2)(b)(i), which was conducted on 17 and 18 December 2024. Following the hearing, Acting Commissioner Byrne reserved her decision on the appeal. Sadly, after doing so, Acting Commissioner Bryne became unwell and passed away before delivering judgment.

5. Consistent with the provisions in s 88 of the Civil Procedure Act 2005 (NSW) and s 36 of the LEC Act, the Chief Judge of the Court allocated the appeal to me for hearing. The parties were directed to confer and agree on a tender list of the evidence to be tendered at the new hearing, including the transcript of the previous hearing and the exhibits and other evidence tendered at the previous hearing. Whilst the tender list was agreed upon, the Court was in the unfortunate position of not having the tenders that were before the Acting Commissioner on the court file.

6. At the hearing, I accepted for tender each of the documents that the parties agreed were the documents tendered at the hearing before the Acting Commissioner. The transcript of the previous hearing also became part of the evidence. Neither party made an application to adduce or tender evidence in addition to the evidence adduced at the previous hearing. A site view was conducted so as to understand the matters in evidence, including to understand the visual impact of the proposed development and the issues raised by the resident objectors.

The site and the locality

7. The site is known as 93 Louisa Road, Birchgrove. It comprises four allotments legally described as Lot 1 in DP 947055, Lot 1 in DP 972969, Lot 1 in DP 770507 and Lot 2 in DP 770507. It has a total area of 417.2m², a frontage of 12.195m to Louisa Road and a rear frontage of 12.17m to Snails Bay.

8. The site is located on the southern side of Louisa Road, east of Birchgrove Oval. Louisa Road is residential in character, with a narrow roadway and residential dwellings on each side that have their main presentation to the water, with garage entrances on Louisa Road with minimal setback. The adjoining properties to the east and west along Louisa Road are more recently constructed dwelling houses. The design of the dwelling the subject of the dwelling consent, and the three dwellings at 87-91 Louisa Road, is by the same architect and are of similar style.

9. The site is part of the Birchgrove and Ballast Point Road Heritage Conservation Area (the HCA), with the closest heritage item at 85 Louisa Road.

The development history

10. A deferred commencement consent was granted on 12 June 2018 for the construction of a new dwelling with basement parking, a car lift, landscaping and pool, and became operational on 4 December 2018 (the dwelling consent). A further development consent for the site was granted on 18 September 2019, for a new pool, retaining wall works and the repair of a sea wall.

11. On 8 October 2019, the Council approved a modification of the dwelling consent, which made some internal changes to the dwelling, including an increase in the basement level floor area, increases to rear setbacks, reduction to the front setback, changes to window sizes and internal reconfiguration.

12. Over 2020 and 2021, Mr Bilotta made two separate modification applications. The first sought to increase the size and height of the lift overrun to RL 19.29, and was lodged pursuant to s 4.55(1A) of the EPA Act on the basis that it was of minimal environmental impact (MOD/2020/0231). The second sought internal alterations, including new and modified openings, new dwarf walls to roof terrace and a new glass roof (MOD/2021/0320). Both modification applications were refused by the Court on 9 February 2022: see Bilotta v Inner West Council [2022] NSWLEC 1058. In that decision, Commissioner O’Neill found that the proposed lift overrun (at RL 19.29) “results in a dominant, intrusive structure that overwhelms the pitched roof form of the dwelling”, and that the environmental impact of the proposal was not minimal.

13. On 18 June 2024, the Council approved a further modification of the dwelling consent, which included various changes to the building footprint, windows, internal layout, balcony/deck/roof terrace, screening, balustrades, fenestration, materials, colours and finishes.

The present application

14. The present modification application, similar to the earlier modification application concerning the lift overrun, follows work carried out for the construction of the dwelling that is inconsistent with the plans that were the subject of the dwelling consent. Whist the southern elevation plans showed the height of the lift overrun being below the roof ridge which is at RL 18.82, the lift overrun was built to RL 19.29. Further, a window opening (that is now either covered or built-in) was constructed on the eastern wall of bedroom 1, which was not depicted in the approved plans.

15. The modification application was lodged with the Council on 24 September 2023, and was refused on 18 June 2024. Following the commencement of the appeal, on 28 August 2024, the Court granted leave to the applicants to amend the modification application, which now forms the present application.

16. The present application is for the modification of the lift overrun so that it reaches a maximum of RL 19.14, and an increase in the pitch and height of the roof so that the ridge height is increased from the approved level of RL 18.82 to RL 19.140 to match the proposed top level of the lift overrun. The point from which the pitch starts will remain the same, but the angle of the pitch will be slightly increased (by around 2 degrees) so that the apex of the ridge is at RL 19.14. The present application also seeks to change the colour of the lift overrun to duck white, which is not in issue. The plans that accompany the modification application also depict a lift that has a slightly larger area than that which formed part of the dwelling consent, increasing the external dimension of the lift shaft from 2000 x 2005mm to 2100 x 2200mm. The present application also seeks to modify the consent by the provision of the window opening (W18) and the construction of external vertical louvres in that opening.

17. The south and east elevations depicting what has been approved, and what is proposed as the modified development, is shown at Figure 1.

18. It is important to note that the present application differs from the lift overrun modification application considered by the Court in Bilotta v Inner West Council, as that application sought approval for the lift overrun as constructed (at RL 19.29), made no change to the roof height or pitch, and relied on there being minimal environmental impact. In contrast, the present application seeks a lift overrun that is smaller in height (RL 19.14) and make changes to the roof height and pitch to match the height of the lift overrun. The present application is made pursuant to s 4.55(2) of the EPA Act, so that there is no requirement for there to be minimal environmental impact.

The planning framework

19. Section 4.55(2) of the EPA Act confers a broad power on the consent authority to modify a development consent. Section 4.55(2), (3) and (4) provide:

(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 the same or 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.

Subsections (1) and (1A) do not apply to such a modification.

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

20. Section 4.15(1)(a) requires the Court, in exercising the functions of the consent authority, to consider the provisions of any applicable environmental planning instrument, proposed instrument, development control plan, planning agreement, and regulation. Section 4.15(1) also requires the Court to consider the likely impacts of a proposed development, the suitability of the site, any public submissions made, and the public interest.

21. There are a number of provisions of applicable planning instruments that the Council says are a relevant matter for consideration pursuant to s 4.55(3) and 4.15(1) of the EPA Act, although both parties agree that these provisions concern development applications and are not determinative of a modification application.

22. The first relates to the location of the site within the HCA. Clause 5.10 of the Inner West Local Environmental Plan 2022 (IWLEP), requires, at cl 5.10(4):

(4) Effect of proposed development on heritage significance

The consent authority must, before granting consent under this 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. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

23. The second provision referred to by the Council is cl 6.9 of the IWLEP, which concerns design excellence. Clause 6.9(3) requires that “Development consent must not be granted for development to which this clause applies unless the consent authority considers that the development exhibits design excellence”. Clause 6.9(4) then sets out the matters to which a consent authority must have regard in order to consider whether the development exhibits design excellence.

24. The third provision referred to by the Council relates to the site’s location within the Foreshores and Waterways Area as defined in Sch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). Section 6.28(2) of the SEPP BC precludes the grant of development consent unless the consent authority is satisfied of a number of matters, including, at (e), that “the unique visual qualities of the Foreshores and Waterways Area and its islands, foreshores and tributaries will be enhanced, protected or maintained, including views and vistas” to and from the Foreshores and Waterways Area, and public places.

25. In addition, the site is within the coastal environment area and the coastal use area, pursuant to the State Environmental Planning Policy (Resilience and Hazards) 2021. Sections 2.10 and 2.11 contain pre-conditions to the grant of development consent, however these sections do not apply to land within the Foreshores and Waterways Area as defined by the SEPP BC.

26. The Leichhardt Development Control Plan 2013 (LDCP) also applies to the site, and is a matter for consideration under s 4.55(3) and 4.15(1) of the EPA Act. Part C, Section 1 contains general provisions, including the following objective concerning urban design requirements:

“O6 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.”

27. In addition, objective 1(f) of Part C1.1 sets out objectives for the site analysis, including to encourage development that takes into account “the special qualities of the site and its context including urban design, streetscape and heritage considerations”.

28. Part C Section 2 concerns urban character, and Part C2.2 contains controls relating to particular neighbourhoods. In relation to the Birchgrove Distinctive Neighbourhood at C2.2.6, control 8 requires maintaining “the diverse character of the area by ensuring new development is complementary in terms of its architectural style, built form and materials”. Controls 1, 6, 18 and 21 also provide:

“C1 Development should follow the topography of the area and maintain the single storey scale on the mid slopes and mixed one and two storey scales at the top and bottom of the slopes.

…

C6 Where a consistent pattern of architectural style and form exists, preserve this consistency on each street.

…

C18 New development shall maintain the use of hipped, pitched or gabled roof forms and designs shall be complementary to the existing unadorned built form. Flat roofs may be appropriate where the style of architecture is contemporary and view lines may be affected.

…

C21 Development visible from the water is to be designed to preserve the conservation values of the area. When viewed from the water a balance between built form and landscape is to be achieved/maintained through side setbacks and landscaping. Additionally the rear elevation must be designed so it does not detract from the form, character and scale of the conservation area. The amount of glazing to solid ratio on the rear elevation must be sympathetic to the immediately surrounding development.”

29. Part C Section 3 of the LDCP concerns residential provisions, and includes objectives at Part C3.1 and Part C3.2. Objective 4 of Part C3.1 is to “ensure that all residential development is compatible with the scale, form, siting and materials of existing adjacent buildings.” Objective 4 of Part C3.2 is as follows:

“To ensure that development:

a. reinforces the desired future character and distinct sense of place of the streetscape, neighbourhood and land where this DCP applies;

b. emphasises the street and public domain as a vibrant, safe and attractive place for activity and community interaction;

c. complements the siting, scale and form of adjoining development; and

d. creates a high level of residential amenity for the site and protects existing or enhances residential amenity of adjoining sites in terms of visual and acoustic privacy, air circulation, solar access, daylight, outlook and views.”

30. Part C Section 1, at Part C1.4, concerns heritage conservation areas and heritage items. Objectives 1(d) and (i) are that development:

“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

…

i. new buildings are sympathetic in scale, form, architectural detail, fenestration and siting to the Heritage Conservation Area or Heritage Item and conforms with the Burra Charter”

31. The controls with respect to new buildings are as follows:

“C8 New development need not seek to replicate period details of original buildings in proximity to the site, but rather, demonstrate respect for the form, scale and sitting of the immediate area.

C9 New development will comply with Part C Section 1.0 – General provisions and all other relevant controls within the Development Control Plan.”

The expert evidence

Town planning and visual impact

32. Expert opinion evidence on the town planning issues and visual impact was given in a joint report prepared by Mr John Aspinall, the architect engaged by the applicants, Mr Jeffrey Bulfin, a town planner engaged by the applicants, and Mr Glenn Apps, the town planner engaged by the Council. They prepared a joint report that was filed on 12 November 2024. They were also cross-examined in court in the earlier hearing, and the record of that cross-examination is in evidence.

33. Mr Aspinall, Mr Apps and Mr Bulfin agree that the dwelling is visible to the waterway of Snails Bay and from the foreshore area of Birchgrove Oval, including the pedestrian path along the seawall. They agree that there is an eclectic mix of dwelling forms addressing the foreshore, with no defined architectural character or theme. They agree that the application of the proposed Duck White paint to the lift overrun will reduce the visual appearance of the lift overrun. They also agree that views to the roof and lift overrun from along Louisa Road are limited to the areas of the road between 99A and 95 Louisa Road, which is 20m along Louisa Road. They agree that the impacts to be assessed are limited to visual impact, and that there is no discernible change to solar access or privacy impacts.

34. In relation to the window opening W18, Mr Aspinall and Mr Bulfin agree that it is not unreasonable for the residents to want to achieve enhanced views of the city skyline and the Harbour Bridge. Mr Apps agrees that the retention of the window is not at the expense of privacy of the occupants of 95 Louisa Road, providing that the louvres are appropriately designed to protect that privacy. They have therefore agreed on a condition, condition 2b, for louvres to protect the privacy of the occupants of 95 Louisa Road.

35. With respect to the change to the roof pitch and lift overrun, the experts remain in disagreement in relation to whether the development as proposed to be modified will enhance, protect or maintain the visual qualities of the area. Whereas Mr Apps opines that the proposed modification makes the ridge more visually prominent, and therefore makes the dwelling more visually dominant, Mr Aspinall and Mr Bulfin opine that the proposed modification is a negligible increase in the visual impact of the roof element. Their evidence is considered further below.

Impact on heritage significance

36. Expert opinion evidence on the impact of the modified development on the heritage significance of the HCA was given by Mr James Phillips, a heritage consultant engaged by the applicants, and Ms Lisa Trueman, a heritage consultant engaged by the Council. They prepared a joint report that was filed on 12 November 2024, and were also cross-examined in court in the earlier hearing. The record of that cross-examination is in evidence.

37. Mr Phillips and Ms Trueman agree that there is no issue, from a heritage impact perspective, in relation to the window opening and the louvres. They also agree that the heritage item at 85 Louisa Road is separated from the subject site by three houses and the lift overrun cannot be seen from the item.

38. However, Mr Phillips and Ms Trueman remain in disagreement concerning the impact of the increase in the height of the roof ridge and lift overrun. Mr Phillips opines that the impact is minimal and will affect neither the diverse HCA or the conservation and maintenance of the natural, built and cultural heritage of the area. On the other hand, Ms Trueman opines that the increased height is excessive and that the modification introduces uncharacteristic built form in a highly visible location within the heritage conservation area. Their evidence is considered below.

The resident objector evidence

39. The present application, as lodged with the Council on 24 September 2023, was notified between 11 and 25 October 2023. Six written submissions were received from 3 residents. Following amendment, it was renotified between 6 and 20 September 2024. Three submissions were received. At the earlier hearing, Mr Gadiel attended the site inspection and gave evidence on behalf of the residents of 91 and 95 Louisa Road. The resident at 91 Louisa Road also gave evidence at that site inspection. Notes taken from the evidence given onsite on 17 December 2024 are contained in Exhibit 8. Further, at the site inspection that formed part of the present hearing, Mr Gadiel attended and pointed out aspects and features of the site and adjoining neighbours’ properties to assist the Court in understanding the issues raised by the resident objectors. The issues raised by the residents, as expressed in their written submissions and orally onsite at the earlier hearing, can be summarised as follows:

• There is an increased impact from the lift overrun and roofline when compared to what was approved by the dwelling consent.

• The applicants should not benefit from the carrying out of unlawful works.

• There is an overlooking issue with respect to the window opening, where there is a view corridor to the living space of the adjacent dwelling, and there is no certainty that louvres are sufficient to protect privacy.

• The visual impact of the increased roof ridge and lift overrun is not acceptable.

• There is no necessity for a lift overrun, in circumstances where a hydraulic lift can be used and has been used in adjacent properties.

40. In relation to the issue of privacy, the expert evidence is that the condition agreed upon for the louvres will protect the privacy of the adjoining dwelling. Further, the question of necessity of development does not inform whether the development is appropriate and acceptable in its context. The issues surrounding visual impact are dealt with below.

The resolution of the issue regarding the window

41. The Council contended, in its Amended Statement of Facts and Contentions filed 23 September 2024, that the window opening W18 is unnecessary and the louvres fail to maintain privacy (contention 1.4). It also contended that the window ought not be approved and the louvres are therefore unnecessary (contention 1.3).

42. The Council no longer presses contention 1.3, and agrees that contention 1.4 is resolved with the imposition of the agreed condition concerning the louvres. That agreed condition was drafted by Mr Aspinall, Mr Apps and Mr Bulfin, who agree that the louvres will protect the privacy of the adjoining neighbour at 95 Louisa Road. The condition is as follows:

“2b. Window W18 is to be 1760mm (wide) x 2400mm (high), provided with fixed vertical louvres for the full height of the window angled at 60 degrees to the plane of the wall and opening towards the south. The louvres shall be spaced at a distance of 160mm and shall have a width of 200mm. The louvres and window frame of W18 is to be coloured white.”

43. The experts agree that no other issue arises with respect to the window opening W18, and that the privacy impact is adequately addressed through the requirements of the agreed condition. There is, therefore, no reason to refuse the window opening aspect of the modification application, subject to the agreed condition concerning the louvres.

Is the proposed modification of the roof ridge and lift overrun acceptable?

44. The Council contends that the Court cannot be satisfied that the proposed modification enhances, protects or maintains the visual qualities of the foreshore and waterways area (contention 1.2), and that it creates a visual impact that it is unacceptable and fails to exhibit design excellence (contention 1.3). It also contends that the design of the roof ridge and lift overrun has adverse affects on the HCA (contention 1.4).

The Council’s position on the modification to the roof ridge and lift overrun

45. The Council contends that the development as proposed to be modified results in the lift overrun remaining a prominent feature of the development as it sits at the same height as the new roof ridge, rather than being a recessive element that sits lower than the roof ridge. The Council submits that the question of whether the proposed modification is acceptable should be assessed against what is approved, and the fact that there is an increase in the visual bulk relative to what was approved means that there is an adverse visual impact. The Council points out that the increased bulk not only arises from the increase in height, but also from the increase in size of the lift shaft and the increased roof pitch.

46. The Council’s position is supported by the evidence of Mr Apps, who opines that the proposed modification makes the ridge more visually prominent, and therefore makes the dwelling more visually dominant when compared to the neighbouring dwellings. Whilst Mr Apps is not concerned about how it might be viewed from Louisa Road, he remains of the view that the visual impact from the viewpoints around Birchgrove Oval and Snails Bay is unacceptable. His evidence is that the box-like form of the lift overrun is not a characteristic element in the skyline of the properties that face Snails Bay, and that whilst the original design sought to make that element recessive, the proposed design is no longer recessive and the additional mass proposed for the roof does not enhance, protect or maintain the visual qualities of the foreshore area when viewed from the waterway or the public foreshore area of Birchgrove oval.

47. The Council’s position is also supported by the evidence of Ms Trueman, who opines that the modification introduces uncharacteristic built form in a highly visible location within the HCA. In her written evidence, she repeats the words used by Commissioner O’Neill concerning the as-built lift overrun, that it is “a dominant, intrusive structure that overwhelms the pitched roof form of the dwelling” (Bilotta v Inner West Council, at [43]). Ms Trueman gives evidence that the increased roof ridge height and bulk does not resolve this issue, but only increases the impact.

48. The Council therefore submits that the design of the ridge and lift overrun is uncharacteristic in the HCA and has an adverse heritage impact, contrary to cl 5.10 of the IWLEP, and does not enhance, protect or maintain the visual qualities of the Foreshores and Waterways Area (which includes views from the water), contrary to s 6.28(2)(e)(ii) of the SEPP BC. For the same reasons, the Council says that the proposal, as modified, does not exhibit design excellence, contrary to cl 6.9 of the IWLEP, and does not comply with the provisions of Part C of the LDCP concerning ensuring new development is complementary in its architectural style (Part C2.2.6 controls 6, 18) and does not detract from the conservation area (Part C2.2.6 control 21).

49. The Council also makes the point that the Court, in determining the modification application, cannot consider arguments that allow the applicants to benefit from work carried out unlawfully, such as the cost of removal of the as-constructed lift. Further, the Council submits that, even on the applicants’ own evidence, there are other lift designs that could allow the applicants to reduce the height of the lift overrun below what is proposed by the modification application.

The applicants’ position that the modification is acceptable

50. The applicants’ position is instead that the development, as proposed to be modified, will not give rise to an unacceptable impact and does not increase the bulk of the building to such an extent that it becomes unacceptable in terms of bulk and scale. Further, the applicants submit that the Council has not defined the visual character of the foreshore and waterways area that is said to be impacted by the development as modified, and that the varied architectural types along Louisa Road that present to Snails Bay mean that there is no pattern of development or defined architectural quality that needs to be maintained.

51. The applicants rely on the agreed evidence of Mr Aspinall, Mr Apps and Mr Bulfin that there is an eclectic mix of dwelling forms addressing the foreshore, with no defined architectural character or theme, with a range of heights and styles. The applicants point out that there is no height of building development standard for the site and the area, such that there is no issue with the additional height, and rely on the evidence of Mr Aspinall and Mr Apps that the roof ridge and lift overrun, as modified, responds to the size, scale and proportionality of the dwellings at 87-91 Louisa Road. They also rely on the evidence of Mr Aspinall, Mr Bulfin and Mr Phillips that the modification of the roof ridge and lift overrun is minor and will have negligible adverse impact on the visual environment, the natural environment and the character of the HCA

52. Further, the applicants submit that none of the provisions of the planning instruments concerning heritage, design excellence or the foreshore and waterways area, relied upon by the Council, are relevant to the assessment of the modification application. Each of those provisions concern the assessment of a development application, and do not apply to a modification application. Further, the applicants submit that the design excellence provision in cl 6.9 of the IWLEP does not require design excellence to be achieved by each element of a building, and that there is nothing about the modified dwelling that would mean it is no longer a building that exhibits design excellence.

The modification to the roof ridge and lift overrun is acceptable

53. The issue before the Court, in determining the modification application, is whether the proposed modification, as set out in the modification application, is acceptable. The questions concerning the necessity of what is proposed, or whether what is proposed is a better outcome than what has been constructed, are irrelevant to that issue. Similarly, whether there is another lift design that could be used to reduce the overall height is a curiosity, but it is not relevant to the question of whether what is proposed is appropriate and acceptable. Further, none of cll 5.10, 6.9 of the IWLEP or s 6.28 of the SEPP BC are required to be satisfied in considering and determining the modification application. In the context of the site and its presentation to Birchgrove oval and Snails Bay, I consider the proposed modification is acceptable, for the following reasons.

54. Firstly, the increase in bulk arising from the proposed modification is so minimal that it is negligible, with no discernible increase in the overall visual impact. I accept the evidence of Mr Aspinall and Mr Bulfin in that regard. Contrary to what was submitted on behalf of the Council, the mere fact that there is an increase in the visible bulk does not render the additional visual impact unacceptable. I accept the evidence of Mr Aspinall that the prominence of the lift overrun is negated by aligning the uppermost element with the roof ridge, and that the increase in height of the roof ridge to accommodate this is considered negligible. A comparison of the south elevations in Figure 1 above demonstrates that the change in the bulk is minimal. Indeed, it was conceded by Mr Apps in cross-examination that a reasonable member of the public, if they turned up to Birchgrove and saw what had been approved, and then turned up 12 months later to see a different roof pitch and roof height, “they would likely not understand that [there had] been a change” (Transcript 17/12/24, p.40).

Secondly, the roof ridge and lift overrun, as proposed to be modified, is acceptable in the context of the varied architectural styles of dwellings and roof forms along Louisa Road. I accept the evidence of Mr Aspinall that the townhouses at 87-91 Louisa Road define the scale of development in this part of Louisa Road, and the development, as modified, responds to those townhouses in terms of size, scale and proportionality. The roof form proposed need not replicate the townhouses at 87-91 Louisa Road to be appropriate, and instead it is acceptable that it follows the design of integrating the lift overrun with the roof pitch. In the context of the varied roof forms along Louisa Road and the built form that presents to Snails Bay and Birchgrove oval, I cannot accept the evidence of Mr Apps that the proposed roof ridge and lift overrun is incongruous with roof forms in the immediate area. Instead, the design incorporates rectangular and pitched elements, both of which exist in the roof forms of dwellings along Louisa Road that present to Snails Bay. I accept the evidence of Mr Aspinall that, in this context, the modified development forms a visual aesthetic, at roof level, that is responsive to the surrounding pitched roofs and to the overall height of its neighbours to the west. The fact that it is slightly taller does not make it incompatible in that context, particularly given that there is no height development standard that applies to this area, and therefore no desired height established by the IWLEP. The compatibility of the proposed roof with the surrounding roof forms is readily observable in the two photomontages of the development as proposed to be modified, at Figure 2. 

55. Thirdly, the Council has not advanced any evidence of what defines or comprises the visual character of the foreshore and waterway area that is disturbed or adversely affected by the development as proposed to be modified. I accept the submission of the applicants in that respect. That is, the Council raised a contention that the consent authority cannot be satisfied that the unique visual qualities of the area will be enhanced, protected or maintained, but has failed to identify what those the unique visual qualities are. I accept that the visual quality of the dwellings fronting Snails Bay is that which is described by Mr Aspinall as being “random development without consistent elements, proportion, or architectural style” (Ex 4, p.36). The only views from the waterway that are affected are those to the sky, and I accept the evidence of Mr Aspinall that the altered design could not be realistically described as dominating the skyline. As such, I am satisfied that there is no change to the visual quality of the foreshore and waterway area as a result of the proposed modification.

56. Fourthly, there is no defined element or character of the HCA that is affected by the development as proposed to be modified, and the modified development will not affect the heritage item in any way. The contention raised by the Council on this point has no proper basis. Whilst Ms Trueman opines that the modified roof ridge and lift overrun “has an adverse impact on the character and significance of the conservation area” (Ex 3, p.5), she provides no analysis of the elements of the HCA that form its character or significance and that she says would be disrupted by the development as proposed to be modified. In failing to do so, she provides no framework against which the increased bulk is opined to be unacceptable in the context of the HCA. Her repetition, throughout the joint report, of the Court’s findings in relation to a separate modification application under a separate provision of the EPA Act sheds no light on her opinion in that respect. She fails to identify any heritage aspects of the HCA with which the development, as modified, is incompatible, and instead gives general references to the “established scale of development surrounding the property”, which concerns existing urban form rather than heritage conservation. Her opinion therefore has no basis. Instead, I prefer the evidence of Mr Phillips that there are a variety of contemporary buildings in the HCA that are of diverse architectural style, and the overrun and altered roof ridge will be an inconspicuous built form in a setting of varied roof forms. In that context, the development as proposed to be modified, does not have any impact on the preservation of the HCA.

55. Fifthly, the change to the lift overrun and ridge height does not alter the design excellence exhibited in the building as a whole. I accept the submission of the applicants that the design of the roof ridge and lift overrun is very similar to what was approved, and only differs in that the height of the peak is increased by 320mm, the angle of the pitch is increased by 2.7 degrees, and there is now an alignment of the top of the lift overrun with the top of the pitch (whereas the lift overrun was lower than the top of the pitch in the dwelling consent). In comparing the south elevation of what was approved by the dwelling consent, with the south elevation of what is approved, as shown in Figure 1 above, it is apparent that the design of the building and its presentation remains the same. Therefore, this proposed change could not be said to alter the dwelling in such a way that it no longer exhibits design excellence. As submitted by the applicants, I need not conclude that each element of the roof design exhibits design excellence. The dwelling, as modified, remains one that has an appropriate massing of the roof form and has a high standard of architectural design, consistent with the requirements of cl 6.9 of the IWLEP concerning design excellence.

56. For those reasons, I find that the proposed modification to the roof ridge and lift overrun is acceptably designed and appropriate in its context. The Council’s position to the contrary cannot be sustained, particularly in circumstances where the increase in bulk is negligible, where there is no height development standard applicable, and where the town planners agree that there is an eclectic mix of dwelling forms addressing the foreshore. For the same reasons, I am satisfied the relevant controls in the IWDCP are met. The development is complementary to the character of the area in terms of its architectural style, built form and materials, consistent with what is required by control 8 of Part C2.2.6, and achieves a consistent pattern of architectural style with the townhouses at 87-91 Louisa Road as required by control 6. Given the negligible increase in bulk, none of the other controls or objectives identified in [25] to [30] above are offended in any way.

The modification application should be granted

59. For the reasons set out above, none of the issues raised by the Council in its contentions warrant refusal of the modification application. Further, an earlier contention raised by the Council concerning the unauthorised works, is no longer pressed (contention 1.1). The Council also agrees that contentions 1.7, 2.1, 2.2 and 2.3 have all been addressed by material that is now in evidence.

60. In addition, I am satisfied that each of the requirements of s 4.55(2) of the EPA Act have been met. The development to which the consent as modified relates is substantially the same as the development for which consent was originally granted, for the reason that it involves only changes to the roof form and lift, as well as the addition of a window opening, which involve external changes that do not alter any essential element of the dwelling or its form, size, or architectural style. The modification application was also notified, as required by s 4.55(2)(c), and I have considered the submissions made in response to the notification.

61. Further, consistent with the requirements of s 100(3)(a) of the Environmental Planning and Assessment Regulation 2021 (NSW), the modification application is accompanied by the BASIX certificate dated 2 December 2024.

62. Finally, although the Council raised a contention concerning public interest (contention 1.8), none of the matters identified in that contention warrant refusal of the modification application. I have dealt with the issues raised by the earlier contentions separately above, and the matters raised in the public submissions either do not warrant refusal, have been dealt with in my consideration of the contentions, or have been addressed through the agreed condition for the louvres. The Council’s assertion, in particular (c), that the grant of the modification would be inconsistent with the undertaking given to the Court in enforcement proceedings, is factually incorrect having regard to the terms of the undertaking (Ex 2, Tab 20), and simply should not have been advanced. Further, contrary to what is said in particular (d), the earlier refusal by the Court of a different modification application made under a different provision of the EPA Act is entirely irrelevant to this modification application.

63. I therefore conclude that none of the contentions raised by the Council warrant refusal of the modification application, and it ought to be granted subject to appropriate conditions.

The appropriate conditions

64. The conditions to be imposed on the modification application are agreed, save for a condition concerning the balustrade for the roof terrace. The Council seeks to impose the following condition in relation to the same:

“2c. The eastern balustrade to the roof terrace is to be setback from the eastern edge by 2000mm to prevent overlooking of adjoining dwellings to the east.”

65. The Council advances this condition as it is concerned, based on the observations made onsite, that the balustrade will be installed in a location otherwise than where it is approved by the consent. It relies on the evidence of Mr Apps that such a condition is necessary to prevent overlooking into skylights on the adjacent property. In support of the condition, Mr To submits that “it’s relevant even, to make it very clear, that the glass balustrade is effectively to remain where it was approved, with a balustrade setback” (Transcript 18/12/24, p.84). Mr To also submits that it arises from the modification application as the modification application alters the lift access to the roof terrace.

66. The applicants oppose this condition, on two grounds. The first is that the modification application does not seek any change to the balustrade location, such that the approved location is that which is in the consent (as modified by 2019 and 2024 modifications). The second is that the proposed condition does not fairly and reasonably relate to the subject of the modification application, which concerns only the window opening, the roof ridge change and the colour and increased height of the lift overrun.

67. I accept the position of the applicants, largely on the grounds advanced by them. Firstly, if the condition is to ensure that there is compliance with the existing consent (as modified in 2019 and 2024), then it is otiose. The building is in an incomplete state, and the balustrade’s final location is required to be in accordance with the consent, regardless of what might have been observed on site. Secondly, the proposed condition does not relate to the modification application, which does not seek to change the balustrade location. In considering a modification application with respect to the roof form, the lift overrun and a window opening, it is not appropriate for the Court to then make an inquiry as to the appropriateness of the location of some other building element, such as the balustrade. Accordingly, for those reasons, I decline to impose condition 2c. Any future issue that arises concerning compliance with the approved plans, including the location of the balustrade, can be dealt with by enforcement action by the Council.

Suitors’ fund

68. As described above at [4]-[6], the matter came before me for a fresh hearing following the passing of an Acting Commissioner, who had heard the matter over two days and reserved judgment. The parties were put to the additional cost of the further hearing on 20 August 2025 due to these unfortunate circumstances.

69. If the earlier hearing had been presided over by a judge of the Court, an application could be made under the Suitors’ Fund Act 1951 (NSW) for a payment under that Act for the additional costs incurred as a result of the passing of the judge. However, there appears to be no provision that makes s 6A(1)(a) of the Suitors’ Fund Act applicable to Commissioners of the Land and Environment Court.

70. There remains, in s 6C of the Suitors’ Fund Act, for an application to be made for a payment in circumstances where the provisions of the Act do not apply. Section 6C provides:

6C Payments not otherwise authorised by this Act

(1) If:

(a) a party to an appeal or other proceedings incurs or is liable to pay costs in the appeal or proceedings,

(b) the party is not otherwise entitled to a payment from the Fund in respect of the costs, and

(c) the Director-General is of the opinion that a payment from the Fund in respect of the costs, although not authorised by section 6, 6A or 6B, would be within the spirit and intent of those sections,

the Director-General may, with the concurrence of the Attorney General, pay from the Fund to the party such amount towards the costs as is assessed by the Director-General having regard to the circumstances of the case.

(2) A payment under this section shall not exceed $10,000.

71. It may be that the cost of the second hearing, on 20 August 2025, and costs leading up to the same (including preparation of exhibits), could be considered costs that fall “within the spirit and intent” of s 6A(1)(a), if an application is made by each party to the Director-General (now Secretary) and the Director-General (now Secretary) reaches that opinion. That is a matter for the parties to pursue.

The final orders

72. The Court orders that:

1. The appeal is upheld.

2. Development consent D/2018/25 is modified in the terms in Annexure A.

3. Development consent D/2018/25 for the demolition of an existing dwelling and the construction of a new dwelling, as modified by the Court, is Annexure B.

4. Exhibits 1 and 2 are returned, the remaining exhibits are retained.

J Gray

Commissioner of the Court

Annexure A (184 KB, pdf)

Annexure B (444 KB, pdf)

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Decision last updated: 02 September 2025