Hunters Hill Council v Fraser

[2006] NSWLEC 744

Land and Environment Court

of New South Wales

CITATION:

Hunters Hill Council v Fraser [2006] NSWLEC 744

PARTIES:

APPLICANT
Hunters Hill Council

RESPONDENTS
Warren James Fraser and Catherine Yvonne Fraser

FILE NUMBER(S):

41424 of 2005

CORAM:

Jagot J

KEY ISSUES:

Civil Enforcement :- construction of water tank enclosure on reserve - reserve and dwelling both heritage items - discretion - orders for demolition

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Evidence Act 1995
Minister Administering the Crown Lands Act 1989

CASES CITED:

ACR Trading Pty Ltd and Another v Fat-Sel Pty Ltd and Another (1987) 11 NSWLR 67;
Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404;
Benz v Blacktown Municipal Council (1971) 25 LGRA 133;
BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274;
F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306;
Foodbarn Pty Limited and Others v Solicitor-General (1975) 32 LGRA 157;
Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265;
Lizzio and Another v The Council of the Municipality of Ryde (1983) 155 CLR 211;
Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302;
Penrith City Council v Waste Management Authority and Another (1990) 71 LGRA 376;
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305;
Shire of Perth v O’Keefe and Another (1964) 110 CLR 529;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335;
Williams v Blue Mountains City Council (2001) 115 LGERA 7

DATES OF HEARING:

5/10/2006, 6/10/2006

 
DATE OF JUDGMENT: 

11/30/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Galasso SC
SOLICITORS
Abbott Tout

RESPONDENTS
Mr T S Hale SC
SOLICITORS
Noel F Bracks & Company

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

30 November 2006

41424 of 2005

HUNTERS HILL COUNCIL
Applicant

WARREN JAMES FRASER AND
CATHERINE YVONNE FRASER
Respondents

JUDGMENT

Jagot J:
A Introduction

1 The Council has applied for declarations and orders against the respondents in connection with water tanks and related items they caused to be located on a reserve adjoining their home in Hunters Hill. The Council claimed that these activities required development consent, which had not been obtained, and impact adversely on the land and its surrounds.

2 The primary facts are not in dispute. The respondents’ home is the property known as “Windermere” located at 25 and 25A Ernest Street, Hunters Hill. Windermere was built in about 1858, apparently one of a series of buildings of Jules Joubert, an important figure in the early development of Hunters Hill. Windermere adjoins the Ferdinand Street reserve, is in an elevated position, and overlooks a wide expanse of the Lane Cove River towards St Ignatius’ College, Riverview. Both Windermere and the reserve are heritage items under Hunters Hill Local Environmental Plan No. 1. Since they purchased Windermere in 1998, the respondents have restored the large sandstone home on the property. Their restoration works, completed in 2005, were carried out under a development consent granted by the Council and obtained a number of awards.

3 Late in 2005, the respondents focused their attention on restoration of the extensive gardens surrounding Windermere, including part of the reserve licensed to them by the Minister Administering the Crown Lands Act 1989. Mrs Fraser had received a letter in 2004 from the Council noting that Ernest Street was the area of highest water use in Hunters Hill. Windermere is the largest property in that street. She also received a brochure from the Council that advised that the Council had joined Sydney Water’s “every drop counts” program. The brochure said that residents were encouraged to install water saving devices such as water tanks. Mrs Fraser later saw a sign erected by the Council stating that water is a precious resource and asking, “what can we do”. Under the heading “around the house”, the first entry read, “install water tanks and water saving systems”.

4 The licence authorised occupation of part of the reserve for the purpose of “beautification”. The respondents wished to restore the gardens, including the reserve, to their condition apparent in photographs taken some years before their purchase. Given the water restrictions in place, they arranged for two water tanks to be installed. To that end, they caused the excavation of part of an existing terrace garden mainly located on the reserve, to create an area where the tanks could be placed on levelled ground. They caused the construction of a brick retaining wall behind that area and small block retaining walls around the front of that area to form a garden bed for planting to screen the tanks. They arranged for two tanks (with a total storage capacity of 45,000 litres) to be placed within this enclosure. A timber covering over the tanks was also constructed. That covering sits about 2.4 to 2.5m above ground level. It has an area (coinciding with the general dimensions of the enclosure beneath housing the tanks) of about 45m2. Before the landscaping had been planted and a balustrade erected around the covering as a safety measure (given its height above ground), the Council received a complaint about the works. Mr Sherry, the Council’s environmental health and building surveyor, went to the property on 18 November 2005. He directed the respondents to cease all work.

5 The Council commenced these proceedings on 1 December 2005, seeking orders that the respondents demolish the “deck, water tanks, and the stone walls” and restore the property to the state it was in before construction of the “deck, the installation of the water tanks, and the construction of stone walls”. The Minister applied to be, and was, joined as a party to the proceedings in June 2006. On 5 July 2006, the Minister entered a submitting appearance, save as to costs. The tank enclosure, tanks and associated works remain in much the same condition as they were in as at November 2005.

6 The Council claimed that these items all required development consent or, in the case of the timber covering (which the Council called a deck and the respondents a canopy), were prohibited under the Environmental Planning and Assessment Act 1979 (the EPA Act), and that the Court should exercise its discretion to require demolition of the items and restoration of this part of the property. The respondents admitted that the larger retaining wall forming the rear of the tank enclosure and the timber canopy required development consent, but said that the other matters did not and that the whole should be permitted to remain in the exercise of the Court’s discretion.

7 The Council’s evidence also dealt with works to a stone wall at the end of the grassed area and some fill of the grassed area to create a level surface (outside the area of the water tanks and ancillary activities). The Council did not press for any relief with respect to those works and I do not address them further.

B Breaches of the EPA Act?

8 Although the respondents admitted breaches of the EPA Act with respect to the rear retaining wall and timber canopy, they submitted that identifying the elements that required development consent and those that did not must inform the exercise of discretion. The Council submitted that the various elements also should be considered separately when determining issues of permissibility of development and breach of the EPA Act, although the Council accepted that it was possible to treat the works as development for a single purpose. Accordingly, I deal with these respective approaches to the question of breach.

9 Under s 76A of the EPA Act, a person must not carry out development on land without development consent where an environmental planning instrument provides that such development may not be carried out except with consent. Under s 76B, a person must not carry out development on land where an environmental planning instrument provides that such development is prohibited. Under s 122, a breach of the EPA Act includes any contravention of or failure to comply with the Act. Any person may bring proceedings to remedy or restrain a breach (s 123). Where the Court is satisfied that a breach of the EPA Act has been committed, it may make such order as it thinks fit to remedy or restrain the breach (s 124(1)). Where a breach of the EPA Act would not have been committed but for the failure to obtain a consent under Pt 4, the Court, upon application being made by the defendant, may adjourn the proceedings to enable a development application to be made under Pt 4 to obtain that consent (s 124(3)).

10 Development is defined in s 4(1) to mean (insofar as relevant) the use of land, the erection of a building, the carrying out of a work and any other act, matter or thing referred to in s 26 that is controlled by an environmental planning instrument. Building is defined to include part of a building and any structure or part of a structure. Section 4(2) extends the definitions of use and building, but not in a manner directly relevant.

11 Windermere is zoned Residential 2(a1) under the LEP, but the vast majority of the works carried out by the respondents occurred on the reserve, which is zoned 6(a) (Recreation Existing). Clause 9 of the LEP is in the standard form and identifies the development permissible without consent, only with consent and prohibited from being carried out as set out in the table to the clause, except as otherwise provided by the LEP. The zoning table for the 6(a) zone is as follows:

1 Development that does not require consent
Development for the purpose of:
Public drainage works and infrastructure; works for the purposes of landscaping or gardening.
Exempt development.

2 Development which requires consent
Development for the purpose of:
Buildings for the purposes of landscaping, gardening or bushfire hazard reduction; community facilities; private drainage works and infrastructure; recreation areas; refreshment rooms; utility installations (other than gas holders or generating works).

3 Prohibited
Any development not listed in item 1 or 2.

12 Clause 6(1) of the LEP defines item of environmental heritage as a building, work, relic, tree or place described in Schedule 6. Schedule 6 describes items according to their “theme”, “period” and “date”. There are three relevant themes, each associated with the history of Hunters Hill (subdivision and development (S), transport (T) and maritime activities (M)). There are seven periods between 1795 and 1983. Windermere and the reserve appear as follows in Sch 6:

Item No.	Address	Item Name	Theme	Period	Date
438	Ernest St, 25	Windermere	S	3	Pre 1861
502	Ferdinand St, North End	Ferdinand St Reserve	S

13 Clause 19(1) of the LEP provides that:

A person shall not, in respect of a building, work, relic, tree or place that is an item of the environmental heritage:

(a) demolish or alter the building or work,
(b) damage or move the relic,
(c) excavate for the purpose of exposing the relic,
(d) damage or despoil the place or tree, or

(e) erect a building on or subdivide land on which the building, work or relic is situated or that comprises that place,

except with the consent of the counci l .

14 The Council submitted that:

(1) The rear retaining wall, front retaining walls for the landscaping and tanks are a building for the purpose of landscaping or gardening and required development consent as such.

(2) The tanks and all associated works and buildings (but for the deck), alternatively, are private drainage works and infrastructure and required development consent as such.

(3) The deck is development not listed as permissible with or without consent and accordingly is prohibited development. Alternatively, the deck also is a building for the purpose of landscaping or gardening and required development consent as such.

(4) The reserve is a place that has been damaged or despoiled by the buildings erected thereon and those activities also required consent under cl 19(d) and (e) of the LEP.

15 The respondents submitted that:

(1) The rear retaining wall and the deck were buildings for the purpose of landscaping or gardening and required development consent as such.

(2) The tanks themselves are not a building or a work and could be placed on the land without development consent (presumably, because they are not development of any kind).

(3) The front retaining walls are a work for the purposes of landscaping or gardening and did not require development consent.

(4) Clause 19 is relevant only insofar it requires consent for buildings erected on a place that is an item of the environmental heritage.

16 Mrs Fraser said that before installing the tanks, they obtained structural engineering drawings in September 2005 and that, to the best of her knowledge, the retaining wall and timber canopy had been constructed in accordance with those drawings. The drawings show “structural details for water tank enclosure”, including the rear retaining wall 2.2m high, a waterproof membrane at the rear of that wall adjoining blue metal backfill behind, footings and seepage line in the rock trench at the foot of the backfill, a compacted gravel bed on the ground for the tanks to sit on, the front walls and the timber canopy connected to the rear retaining wall. Those details are consistent with my observations during the view carried out at the respondents’ request (ss 53 and 54 of the Evidence Act 1995).

17 Although it was decided in the context of existing use rights, I consider the observations of McHugh JA in Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310 of assistance. He observed that policy considerations with respect to existing use rights had led to the development of a test:

…which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires the characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place.

18 The purpose of development, again in the context of exiting use rights, is the end or object of the development (Shire of Perth v O’Keefe and Another (1964) 110 CLR 529 at 535). Identifying the purpose involves questions of fact and degree (Lizzio and Another v The Council of the Municipality of Ryde (1983) 155 CLR 211 at 217).

19 This focus on the appropriate level of generality or particularity at which to approach the characterisation of development is also apparent outside the context of existing use rights, focusing on the character, extent and features of the activity (for example, Foodbarn Pty Limited and Others v Solicitor-General (1975) 32 LGRA 157, Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 and Penrith City Council v Waste Management Authority and Another (1990) 71 LGRA 376).

20 Clause 9 and the relevant parts of the zoning table for the 6(a) zone disclose that it regulates development for various purposes (contrast cl 19(1) of the LEP). In the context set by the 6(a) zoning table, I see no reason to divide a development plainly carried out for one purpose into its constituent parts. The engineering drawings unequivocally disclose the purpose of the development and are consistent with the observations I made on the view. The relevant activities were all directed to the end or object of providing an enclosure to house the water tanks and make them less visually intrusive at least from the dwelling on Windermere.

21 I am also satisfied that the water tank enclosure is a building within the meaning of the EPA Act. Applying the purposive construction identified as appropriate in Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 at 305 – 308, the water tank enclosure should be identified as a not insignificant framework built up of component parts constructed in situ, affixed to the land with a material degree of permanence (albeit able to be readily demolished and removed), located in an urban area, designed and constructed in accordance with structural engineering drawings, and requiring a balustrade to provide for the safety of persons standing on the timber cover (see, by analogy, the matters identified in Benz v Blacktown Municipal Council (1971) 25 LGRA 133 at 139-140 and the overview in Williams v Blue Mountains City Council (2001) 115 LGERA 7). This description accords with the observations I made on the view and the engineering drawings.

22 I consider that all of the activities caused to be carried out by the respondents constituted the erection of a building within the meaning of the EPA Act for the purposes of landscaping and gardening (namely, to have in place a facility to enable collection of water for use on the gardens other than mains water). Under item 2 of the 6(a) zone and cl 19(1)(e) of the LEP, the activities were permissible, but only with development consent.

23 Accordingly, I do not accept the Council’s contention that the timber covering should be characterised as a separate activity, prohibited from being carried out. I also do not accept the respondents’ contentions that the tanks and front retaining walls should be characterised separately from the balance. That approach is inconsistent with the facts of this matter. In particular, it is not to the point that, absent the activities in fact carried out, the tanks could simply stand on a flat piece of ground. The tanks in question do not simply stand on a flat piece of ground. They stand on a compacted gravel bed, created as a level surface, within an enclosure of retaining walls and beneath a timber cover affixed to the rear retaining wall. As the engineering drawings disclose on their face, the activities were carried out to create a “water tank enclosure”. Absent those activities, I am satisfied that the water tanks could not have been placed in their present location.

24 For these reasons, I am satisfied that the water tank enclosure and the activities carried out ancillary to that enclosure were development permissible only with development consent under the LEP. The respondents admitted that they did not have development consent for the water tank enclosure and ancillary activities. Accordingly, the respondents carried out development in breach of s 76A of the EPA Act.

C Discretion

Introduction

25 The discretion of the Court to make such orders to remedy or restrain a breach of the EPA Act “as it thinks fit” has been considered in numerous matters. The Court is “obliged to consider what should be done to remedy or restrain the breach” and is empowered to “mould the manner of its intervention in such a way as will best meet the practicalities as well as the justice of the situation before it”. In so doing, it is the duty of the Court to “have regard at all times to the pursuit of the objects of the Environmental Planning and Assessment Act as set out in s 5” (F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 at 311 and 313). The discretion is not “a warrant to set at nought the complicated and sensitively balanced provisions of the legislation, substituting for the operation of the law laid down by Parliament, the personal opinions of the judge hearing the case”, but is “just as much part of the structure and scheme of the Act, for the enforcement of planning law, as are the other parts” and must not be given any “unduly restricted operation” (ACR Trading Pty Ltd and Another v Fat-Sel Pty Ltd and Another (1987) 11 NSWLR 67 at 82).

Submissions

26 Mr Hale SC, appearing for the respondents, submitted that the minor nature of the water tanks and ancillary items, the fact that they could be easily screened so as to be imperceptible from any public vantage point (the reserve being licensed to the respondents in part and otherwise impossible to access), were readily reversible and served the beneficial and environmentally appropriate purpose of enabling the gardens of the heritage item and reserve to be maintained on a sustainable basis, made the matter one appropriate for the exercise of discretion in the respondents’ favour – either by declining to make any order or by tailoring an order to the particular circumstances of the respondents (such as requiring undertakings with respect to the screening, not using the timber cover for entertaining, and/or permitting the development to remain for so long as the licence continued). He also stressed that the primary concern from the respondents’ perspective was retaining the water tanks – the timber cover was not essential for the tanks and if considered inappropriate could be removed.

27 I raised the operation of s 124(3) of the EPA Act at the commencement of the proceedings and during counsels’ closing submissions. Mr Hale SC said that the same considerations as set out above had led the respondents to conclude that the matter was more appropriately resolved through the exercise of discretion under s 124(1) than by adjournment of these proceedings under s 124(3) to enable a development application to be lodged and determined. He submitted that no object of the EPA Act would be served by further assessment of the water tanks and ancillary items and that the Council’s position suggested bureaucratic rigidity, by requiring a formal development application for no real purpose. He observed that the Council had not identified any specific alternative location for the tanks and that, even if a development application were lodged, the question would remain the appropriateness of the water tanks in their present location. Mr Hale SC also submitted that the issue of discretion ought to be approached recognising that the tanks were not a structure and the front retaining walls were a work for the purpose of landscaping and did not require consent. These matters, accordingly, should inform the exercise of discretion.

28 Mr Galasso SC, appearing for the Council, submitted that it would be wrong to characterise the dispute as one either permitting or prohibiting the respondents from maintaining the gardens of Windermere and the reserve in a sustainable manner by using water tanks. The evidence disclosed that the Council supported the use of water tanks. In circumstances where the respondents sought an exercise of discretion in their favour, Mr Galasso submitted that they (not the Council) bore the practical onus of establishing that there was no alternative location for the water tank enclosure. The Council’s evidence pointed to feasible alternative locations. Where, as here, the enclosure altered the setting of two items of heritage significance, the development assessment process was essential. The development should only be permitted to remain if proper scrutiny, both planning and heritage, warranted that conclusion. Simply to assume they could remain subject to screening was inappropriate, particularly given Mr Rappoport’s acceptance that heritage assessment is not limited to impacts on views from public places.

Evidence and findings

29 The parties agreed that the water tank enclosure was substantially located on the reserve, being the land zoned 6(a), owned by the Minister and licensed to the respondents. As noted above, the Minister entered a submitting appearance. They agreed that the respondents had not obtained development consent to construct the water tank enclosure. They agreed that Windermere and the reserve were both items of environmental heritage under the LEP.

30 Given my conclusion that all components of the water tank enclosure and ancillary activities constituted the erection of a building for the purposes of landscaping and gardening, I do not accept that I should approach the question of discretion on the basis that the issues are limited to the rear retaining wall and timber cover. Moreover, I consider that approach impractical given that I infer that the rear retaining wall retains the earth behind (which previously formed part of a terraced rockery area) to enable the tanks to sit on the compacted gravel bed base (as shown on the engineering drawings). These factors suggest that, leaving aside my conclusions about the single purpose of the development and its characterisation, it is impractical and inappropriate to approach the question of discretion on the basis submitted by the respondents.

31 Mrs Fraser gave evidence. In addition to the matters set out in [2] to [5] above, she explained that it had never occurred to her that development consent was required for the water tank enclosure. She was aware that Windermere was a heritage item, but not aware that the reserve was also such an item. In any event, she understood that the reserve (or the relevant part of it) was licensed to them for the purpose of beautification. As the sole purpose of the tanks was to provide a sustainable water source for maintaining the gardens, Mrs Fraser understood that development consent was not required. She denied that the purpose of the timber cover was to function as a deck or elevated viewing platform. Mrs Fraser observed that there were many areas of Windermere from which views of the river could be obtained. The cover was installed to shield the tanks, prevent any emission of noise from water filling in the tanks and to make the overall structure more attractive. Mrs Fraser was willing to undertake not to use the cover for entertaining purposes if that addressed the Council’s concerns about the cover.

32 I accept Mrs Fraser’s evidence as summarised above. In particular, I accept that the carrying out of development without development consent was the result of inadvertence and that the respondents’ purpose was to provide a sustainable water source to maintain the gardens, consistent with their understanding of the Council’s objectives for water saving measures to be implemented by the residents of Hunters Hill. I accept that the respondents did not intend to provide themselves with an elevated viewing platform to use for entertaining given the other areas within their property already available for that purpose. Nevertheless, I understand the Council’s concern that the timber cover (subject to the provision of the balustrade) would be suitable for that purpose.

33 Windermere and the reserve are prominent features when viewed from the Lane Cove River, as the views from the boat ramp at St Ignatius’ College (which were included in my inspection at the request of the parties) disclosed. The parties were at issue about the impacts of the water tank enclosure on the heritage setting of the reserve and Windermere and its visibility, particularly from the river and opposite foreshores. Various photographs from different vantage points were tendered (including from one point on the boat ramp).

34 Mr Patch, architect and consultant heritage advisor to the Council, observed that Windermere was a very significant heritage item within Hunters Hill, being a Joubert marine villa set in a picturesque garden. It was also located in a conservation area under the LEP. He considered the construction of buildings on the reserve antithetical to its nature as a foreshore area forming part of the river scape and characterised by trees and vegetation. He thought that the water tank enclosure was unsympathetic to the distinctive landscape character of the reserve and that it detracted from the landscaped and bushland setting of Windermere and the reserve. He was concerned that Windermere was a marine villa style development, characterised by views both to and from the river. He assessed that the enclosure would be visible from numerous positions on the Lane Cove River given the lines of sight to broad reaches of the river to and from Windermere. Overall, he concluded that the enclosure detracted from the heritage significance of the setting of Windermere and the reserve. He noted that the timber deck was also visible from two adjoining properties and other parts of the reserve itself. He did not think it appropriate to camouflage the structure by planting a dense screen of lilly-pillies in the planting area created by the small retaining walls at the front of the enclosure, because development should blend with the locality rather than require complete screening. While he accepted that his visual concerns could be addressed by effective screen planting, he considered there would still be an alteration to the appearance of the item (by the removal of part of the garden terracing) and remained concerned about the setting of the items and the views both to and from them. Finally, Mr Patch observed that, in his opinion, there was ample scope on Windermere to accommodate the tanks in a more appropriate location with less visual impact.

35 Mr Rappoport, heritage architect, regarded the installation of the water tanks as a positive environmental conservation action given the reduction in water use and the filtering of water he understood would occur before water was released from the tanks. He did not consider the works to have had any negative impact on the setting of Windermere because: - (i) the works were reversible and could be removed absent any injury to the fabric of the heritage item, (ii) the works were easily camouflaged by vegetation, (iii) the deck would weather over time and blend in with the natural vegetation and would not appear as a stark object in the landscape, and (iv) the works were relatively small and would blend in with screen planting. He also noted that the works fulfilled a commendable environmental purpose. Mr Rappoport agreed that he was not aware of the status of the reserve as a heritage item when he prepared his affidavit, but did not think that was material as he had addressed the setting of Windermere as a whole. He confirmed that he thought the works were visually imperceptible, but agreed that assessment of heritage impact was not necessarily confined to impacts on views from public places.

36 Mr Sherry, environmental health and building surveyor, gave evidence both about the stop work direction he issued and his discussions with the respondents at that time. He gave details of other inspections, including his measurements of the enclosure (about 2.4 to 2.5m above ground with the timber cover about 45m2). Mr Sherry identified that Windermere was not only a heritage item, but also located within a foreshore scenic protection area. He considered the enclosure a significant intrusion into the natural environment and landscape when viewed from the reserve and the waterway. He did not think it appropriate to rely on planting as a total screen, rather than as a means to soften the appearance of visually acceptable development. He accepted that water conservation was highly desirable and encouraged by the Council. He agreed that it was desirable for the gardens that presently exist at Windermere to be maintained in the way they presently are being maintained. He acknowledged that he was not a landscape expert, but observed that lilly-pillies, while natives, were not indigenous to the Ferdinand Street reserve area. He thought the balustrade and associated supports would make the development more visually intrusive, but accepted that landscaping could soften its appearance. Mr Sherry also referred in his evidence to other planning controls (a development control plan and regional environmental plan), but I do not think it necessary to record the provisions of those instruments given the more specific terms of the LEP referred to above. Mr Sherry had other concerns about certain engineering matters. Having examined the engineering drawings in Mrs Fraser’s evidence, I do not consider those concerns sustainable.

37 Mr Vingilis, architect, was responsible for designing the alterations and additions to Windermere. He considered Windermere and its garden setting one of the most outstanding properties in Hunters Hill. He concluded that the impact of the water tanks and ancillary works was positive as they enabled the gardens to be maintained to their current high standard thereby enhancing the setting of Windermere, and were mostly obscured from the Lane Cove River, particularly with the weathering the deck had undergone since construction. He accepted that one neighbour to the west would see the presence of the deck in the previously terraced and grassed area as a loss and that photographs from 10 North Parade confirmed that the deck (or part of it) was visible from that property and was located in what previously would have been seen as garden area. Given the magnificent views to the river, he thought it unlikely that residents of that property would be looking down towards the deck, however.

38 Mr Yates, garden designer and landscape consultant, maintains the gardens of Windermere and the licensed part of the reserve. In early March 2006, Mrs Fraser requested that he prepare a landscape plan for screening the tanks and timber canopy. He selected lilly-pillies because they were part of the Council’s planting list, were hardy plants that grow rapidly and are frequently used for screening. He was concerned that without the water from the tanks the gardens could not be properly maintained due to current mains water restrictions. He agreed that the tanks were located in an area previously occupied by terraced gardens, and took up about half that area.

39 Mr Semmonds, licensed plumber, installed the tanks. He confirmed that they had a total capacity of 45,000 litres and were placed in their present location, as this was the optimum position to collect water run off given the location of an existing pit. He said the tanks had capacity when full to provide sufficient water to water the garden for a period of about three and a half weeks during summer if there was no rain. He had recommended larger tanks based on his water calculations for the site. If the tanks had to be removed, he observed that four people could do so in about twenty minutes by rolling them out of position and having them removed by a barge in high tide. They could be placed elsewhere on site with the same ease.

40 Mr Cottee, local government chartered professional engineer, inspected Windermere in September 2006. He concluded that the tanks could be located elsewhere on the property and still provide adequate water retention facilities. He observed that underground tanks could be located in the driveway near the garage and in the terraced lawn area to the north of the existing carport. He also thought the tanks were larger than necessary. He had other concerns about the effects of the drainage arrangements on the Council’s easement, but I do not think those concerns carry weight given the evidence of Mr Semmonds.

41 As is apparent from the evidence, there was no issue between the parties that, as a matter of policy, using water tanks to provide water for landscaping and gardening is highly desirable. The documents and signs promulgated by the Council, and observed by Mrs Fraser, disclose the Council’s concern to encourage its residents to take appropriate steps to implement water savings measures. The Council confirmed its policy of encouraging use of water tanks in Mr Sherry’s evidence and in submissions. The construction of the water tank enclosure has enabled the gardens of Windermere to be maintained other than by use of mains water, leading to a substantial reduction in water consumption for that property.

42 The Council submitted that this should not be understood as a case about the merits of having or not having water tanks. The Council wanted to see the gardens on Windermere retained by using water collected in water tanks. However, it did not consider the public reserve at the front of the property, on an elevated position above the Lane Cove River, an appropriate location for the tanks and the associated structures, and believed that other less obtrusive locations should be examined. In the Council’s view, this was the process contemplated by the development assessment provisions of the EPA Act, and the heritage status of Windermere and the reserve made the carrying out of that assessment process important.

43 I agree that this matter should not be characterised as a choice between allowing the gardens to be maintained through the sustainable use of water from the tanks in their current location or inappropriately encouraging the use of precious mains water and thus dooming the gardens to die due to water restrictions. Consistent with the Council’s evidence, I consider it likely that there are other locations within Windermere capable of accommodating water tanks and capable of satisfying alternative drainage designs to capture water effectively.

44 I do not accept Mr Rappoport’s evidence that the water tank enclosure and ancillary items are visually imperceptible. The fact that the existing vegetation screens the enclosure from some vantage points (shown in various photographs) is not in dispute. I also accept that members of the public are unlikely to access any part of the reserve the subject of the licence and that the enclosure is not visible from the lower parts of the reserve due to the angle of view and vegetation. Despite this, the enclosure was clearly visible with the naked eye from the St Ignatius’ College boat ramp, and I am satisfied that it would be visible, as Mr Sherry said, from many vantage points within the Lane Cove River. The timber cover is also visible from at least one property behind, located in an area previously free from built form.

45 I accept that it is possible for planting largely to screen the enclosure. However, consistent with the evidence of Mr Patch and Mr Sherry, I am not satisfied that dense screening of the type proposed is appropriate or would not itself have an adverse impact on the heritage significance of the setting of Windermere and the reserve. The screen planting will alter the appearance of Windermere from the river, particularly given that the enclosure is in the foreground of that view and elevated. I accept the overall effect of Mr Patch’s evidence that the presence of the enclosure within the reserve, in an elevated position on the foreshore side of Windermere, is a material alteration to the setting of Windermere. I also accept, as Mr Rappoport and Mr Semmond’s evidence revealed, that the alterations are easily reversible.

46 Where there was a conflict, I prefer the evidence of Mr Patch to that of Mr Rappoport about the potential impacts of the water tank enclosure on the heritage significance of Windermere and the reserve. Mr Patch gave weight to the status of the reserve as a heritage item in its own right, whereas I am not satisfied that Mr Rappoport did so, as he was not aware of the status of the reserve until the hearing. I did not find persuasive his explanation of the question of impact on the reserve (as opposed to heritage assessments generally) being limited to view impacts from public places. Mr Patch gave more weight to the views both to and from Windermere, which I consider appropriate. Mr Patch was concerned about the alteration to the setting of the items, irrespective of screening capacity, which I also consider appropriate.

47 Mr Hale SC referred to certain correspondence between the solicitors for the respondents and the Council, observing that it disclosed the respondents’ willingness to reach a mutually acceptable resolution and the Council’s insistence on nothing less than demolition and restoration. I am not certain that the correspondence should fairly be so characterised but, in any event, think it of marginal relevance to the question of discretion.

48 Having regard to my conclusions and the other matters set out above, I must evaluate potentially competing considerations in order to determine the appropriate exercise of discretion in this matter.

49 The following matters should be given weight in support of the respondents’ position:

(1) The water tanks fulfil a high priority environmental objective by enabling the gardens associated with two heritage items to be maintained to a very high standard, in a sustainable manner.

(2) The respondents installed the water tank enclosure for that purpose, not appreciating that the reserve was itself a heritage item or that development consent was required before so doing. This laudable purpose was consistent with the respondents’ restoration of Windermere. They also complied with the directions of the Council and ceased work on the water tank enclosure, meaning that it remains incomplete (that is, absent the balustrade and landscape screening).

(3) The Minister, the owner of the reserve on which the vast majority of the water tank enclosure is located, was joined as a party to the proceedings, but entered a submitting appearance except as to costs. Consistent with the respondents’ submission, I infer that the Minister is content for the water tank enclosure to remain (at least for the duration of the licence).

(4) Mr Semmonds, plumber, determined the size of the water tanks as optimum for maintaining the gardens and licensed part of the reserve. Mr Semmonds, I infer, also installed the water tanks in a professional and competent manner.

(5) The water tank enclosure, I infer, was constructed in accordance with the engineering drawings. Accordingly, I am satisfied that it has been constructed in a professional and competent manner, albeit currently incomplete due to the absence of a balustrade and landscape screening.

(6) The respondents have made plain their lack of concern about the timber canopy. Their concern is the water tanks to enable the garden to be maintained.

(7) The water tank enclosure can likely largely be screened from views from the river by dense planting of lilly-pillies in the bed created by the front retaining walls. Because the balustrade would also need to be screened and the planting will commence from about 400mm above ground in an already elevated foreground location, the planting screen itself may well affect views of Windermere from the river and opposite foreshore. Views from the reserve are not material, as the relevant area is largely inaccessible other than from within Windermere (irrespective of the submissions made about the respondents’ rights under the licence to exclude others – which I do not consider that I need to resolve in this matter).

(8) The water tank enclosure and all ancillary works are readily reversible.

50 The following matters should be given weight in support of the Council’s position:

(1) Windermere and the reserve are heritage items. The reserve (or part of it) apparently formed part of the grounds of Windermere originally. I am satisfied that Windermere, as a Joubert marine villa, is an important heritage item disclosing themes associated with the development of Hunters Hill.

(2) The Council responded promptly to a complaint about the carrying out of the development. The timber cover is visible from at least one neighbouring property (possibly more) and presents as built form in an area that previously would have been occupied by rockery and grass.

(3) The water tank enclosure and associated works removed about half of the terraced rockery area and introduced built form, which cannot be characterised as trivial or minor, into an elevated foreshore location. The enclosure is presently visible from the opposite foreshore and would be visible from many locations on the river. It is also visible from Windermere itself.

(4) While I accept that the water tank enclosure can likely largely be screened and that I could frame orders to require ongoing maintenance, I think Mr Sherry’s views, that landscaping should soften rather than try to mask development, carry weight in the context of these heritage items where, I infer, an important aspect of heritage significance is the visual connection between the dwelling, the foreshore and the river. The very fine restoration of Windermere, if anything, makes this more important.

(5) The opinions of Mr Patch and Mr Sherry that dense screen planting of lilly-pillies as proposed will itself alter the setting of the heritage items, also carries weight, given my inference that an important aspect of heritage significance is the visual connection between the dwelling, the foreshore and the river.

(6) Windermere is a large property. Having regard to the evidence of Mr Patch and Mr Cottee, I accept that it is likely that another location for water tanks is feasible, which may well not give rise to the issues of concern that I have identified. The respondents have not provided evidence pointing to a contrary conclusion, other than that capturing roof water from the second dwelling is not possible due to asbestos.

(7) I am not satisfied that the evidence before me addresses the full range of considerations that would have arisen if the water tank enclosure had been the subject of a development application. This conclusion is supported by the express reference to the importance of horticultural features on settings in cl 19(2)(c) of the LEP and the absence of evidence from the respondents about the advantages and disadvantages associated with possible alternative locations.

(8) The legislative purpose “of upholding, in the normal case, the integrated and co-ordinated nature of planning law” ( Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 340) carries particular significance in this matter. The LEP imposes additional controls on the carrying out of development on or in the vicinity of heritage items and imposes additional obligations of consideration on the consent authority when determining applications for such development (cll 19 and 19A). The purpose of those additional obligations, namely, to preserve the heritage significance of the area, is readily apparent from the terms of cl 2 of the LEP, which identifies many of its aims and objectives by reference to heritage conservation considerations.

(9) Having regard to the above matters, the breach cannot be characterised as merely technical and “unnoticeable other than to a person well versed in the relevant law” ( Sedevcic at 339). The breach was noticed (hence, the complaint to the Council). It was inadvertent – but that is different.

(10) All of the above matters also suggest that the Council’s position appropriately reflects the scheme of the legislation, and is not the product of some insistence on procedure absent any purpose. As cl 2(b2) of the LEP and s 5(c) of the EPA Act disclose, part of the function of the development application process is to provide for public participation. Another is to integrate heritage conservation considerations into the planning and development assessment process (cl 2(b1)). Absent that, other persons may justifiably feel a “sense of inequity” if the planning laws are not equally enforced. In this context, the Council’s actions must be seen as “protective and beneficial” and not some unnecessary interference with those trying to achieve a laudable environmental outcome ( Sedevcic at 340). This is particularly so where it is apparent that the outcome has impacts on other aspects of the environment (here, the conservation heritage values of an important item in the development of Hunters Hill) and may well be able to be achieved absent those impacts.

(11) The breach can be readily remedied, absent significant cost, because of the reversible nature of the works.

51 I consider that the matters I have identified supporting the Council’s position clearly point to the appropriateness of orders being made to rectify the breach. The most powerful consideration in the respondents’ favour (the obvious desirability of maintaining the gardens and licensed areas of the reserve through using water tanks) points to the need to consider tailoring the orders rather than the making of no orders, particularly where the Council favours the use of water tanks and has relied on evidence indicating potential alternative locations.

52 The submitting appearance entered by the Minister does not lead me to a contrary conclusion, although I accept it is a material factor in the sense identified by Mr Hale SC - namely, that had the Minister joined in the Council’s application, the respondents’ position in these proceedings would have been more difficult (perhaps untenable). The reason the Minister’s position cannot be determinative or outweigh the other considerations which indicate that orders should be made generally as sought by the Council is that, although the Minister owns the land, the Council is the consent authority in respect of the land by operation of the definition of “consent authority” in s 4(1) of the EPA Act and cl 8 of the LEP. The primary responsibility for environmental planning in Hunters Hill, and the orderly enforcement of planning laws, thus rests with the Council.

53 This is not a matter where an order “would serve no practical usefulness” or involves a consent authority in going “through the motions” (Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265 at 280). There are important ends to be served by enforcement of the legislation, including upholding the scheme of the LEP (consistent with the general scheme of the EPA Act) to require a thorough assessment of proposals for the carrying out of development on or in the vicinity of heritage items (cl 19), to require public involvement in matters relating to conservation of the heritage of Hunters Hill (cl 2(b2)) and to ensure that new development is undertaken in manner that is sympathetic to and does not detract from the heritage significance of the items and their settings (cl 2(b3)). Those objects should be secured by making orders. I turn now to terms of the orders that should be made.

54 Although the respondents were aware of s 124(3) of the EPA Act, they did not make any application to adjourn the proceedings to enable a development application (for the development or some amended version of it) to be lodged and determined. Mr Hale SC did indicate that, if any orders were to be made, they should at least be stayed over the summer period to enable the water tanks to be used to maintain the garden during those months. He also indicated that this stay was sought only for that purpose (and not to prepare and lodge a development application for the water tank enclosure or some amended version of it or an alternative location for water tanks). Unlike the Council, I do not see that as something that necessarily “tips the balance against the respondents” (a submission presumably reflecting the fact that it would ordinarily be expected that persons in the position of the respondents would wish to obtain consent for a water tank enclosure in some form, to enable the gardens to continue to be maintained on a sustainable basis as they emphasised they wished to do in the hearing).

55 First, it is not clear to me that this represented the respondent’s final submission, Mr Hale SC agreeing that it depended on the factual findings ultimately made. Secondly, the submission appeared to be based on an assumed factual finding that the water tank enclosure, in its present form and present location, under no circumstances should be permitted to remain. I have not made that finding because I consider the evidence insufficient to support it (and, of course, I am not vested with the functions of the consent authority in this matter). As Mahoney JA observed, the function of a consent authority is to weigh relevant considerations one against the other, and to decide what should be done in the light of all those considerations (BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 at 279). I would not wish my reasons to be understood as precluding the grant of consent to the water tank enclosure (or some amended or alternative version of it) if the relevant considerations arising from a thorough assessment of it point to the grant of consent (including matters not fully explored in the evidence before me – such as the horticultural and heritage aspects of the proposed screen planting, the availability and practicality of alternative locations or modifications to the existing structure, as well as the submissions of any neighbours or others).

56 In all the circumstances, I am satisfied that the appropriate course is to order the water tank enclosure (including the rear and front retaining walls, the timber cover, the tanks and ancillary items) be removed and for the area to be restored to its same general condition prior to the carrying out of the development, but that such orders, insofar as they apply to all items other than the timber canopy, should be stayed for a period of four months both to enable the water tanks to be used over the summer period and to enable the respondents to lodge a development and/or building certificate application to regularise the development and its future use.

57 The timber canopy gives rise to different considerations for a number of reasons. First, the respondents have indicated that the canopy is not their primary concern. Secondly, the canopy is in an elevated position but does not currently have a balustrade in place, which is necessary for safety reasons. Although this has been so for a year (given the delay in these proceedings obtaining a hearing date, which I can only assume was due to the need to join the Minister), I am not satisfied that this situation should continue for the period of the stay. I do not consider that the stay should apply to the canopy in these circumstances.

58 I am satisfied that orders to this effect would be proportionate to the objects to be achieved through enforcement of the legislation. Subject to giving the parties the opportunity to address me as to the final form of relief, I propose orders as follows:

(1) Order the respondents to remove the water tank enclosure from the land identified on the plan annexed and marked “A”, including the rear retaining wall and associated backfill, other retaining walls, footings, trenches and drainage connections, water tanks and timber canopy, within 30 days of the date of this order.

(2) Order the respondents to restore the area of land shown hatched on the plan annexed and marked “A” to its condition prior to the construction of the water tank enclosure by reinstating the terraced rockery and grassed area generally consistent with the area to the immediate east of the water tank enclosure, within 60 days of the date of this order.

(3) Stay orders (1) and (2) for a period of four months, save and except that the respondents must remove the timber canopy from the top of the water tank enclosure, within 30 days of the date of this order.

59 The proceedings should be listed before me at 9.00am within the next fortnight for the purpose of making submissions about the final form of the orders and costs. Submissions should address whether any other work for the period of the stay is required for safety reasons. The parties should also attempt to agree on the plan to be included as annexure “A’ within the orders and the markings to be placed on it in the interim.

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