Windy Downdrop case

1. Land and Environment Court
of New South Wales
CITATION : Windy Dropdown Pty Ltd v Warringah
Council [2000] NSWLEC 240
PARTIES : APPLICANT:
Windy Dropdown Pty Ltd
RESPONDENT:
Warringah Council
FILE NUMBER(S) : 10298 of 2000
CORAM: Talbot J
KEY ISSUES: Development Consent :- modification - whether
retrospective - development already carried out
otherwise than in accordance with development
consent
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
s 76A, s 96 (s 102), s 124(3)

2. CASES CITED: Connell v Armidale City Council (Pearlman J,
NSWLEC, 25 September 1996, unreported);
Herbert v Warringah Council (1997) 98 LGERA
270;
Hooper & Anor v Lucas & Ors (1990) 71 LGRA 27;
Ireland v Cessnock City Council (1999) 103 LGERA
285;
Jacklion Enterprises Pty Ltd v Sutherland Shire
Council (Pearlman J, NSWLEC, 8 July 1998,
unreported);
Kouflidis & Ors v City of Salisbury (1982) 29 SASR
321; 49 LGRA 17;
Lirimo Pty Ltd v Sydney City Council (1981) 66
LGRA 47;
Longa v Blacktown City Council (1985) 54 LGRA
422;
Steelbond (Sydney) Pty Ltd v Marrickville
Municipal Council (1994) 82 LGERA 192;
Warringah Shire Council v Sedevcic (1987) 10
NSWLR 335;
Woollahra Municipal Council v Alcaine (1986) 59
LGRA 40;
Woollahra Municipal Council v Barlow & Ors
(1988) 66 LGRA 248
DATES OF HEARING: 07/11/2000, 08/11/2000, 09/11/2000
DATE OF JUDGMENT:
11/17/2000
LEGAL
REPRESENTATIVES:
APPLICANT:
Mr C J Leggat (Barrister) with Ms L M Byrne
(Barrister)
SOLICITORS:
David Trodden & Associates
RESPONDENT:
Mr D P Wilson (Barrister)
SOLICITORS:
Wilshire Webb

3. JUDGMENT:
IN THE LAND AND Matter No. 10298 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 17 November, 2000
Windy Dropdown Pty Ltd
Applicant
v
Warringah Council
Respondent
REASONS FOR JUDGMENT
1. The Application Class 1 filed in the proceedings states that the decision
appealed against is a refusal of an application for variation of a s 88B
instrument. At the commencement of the hearing neither Mr Wilson, appearing
for the council, nor Mr Leggat, appearing for the applicant, could identify any
provision in a s 88B instrument or even a condition of consent requiring the
completion of a s 88B instrument that is relevant to what the applicant
proposes.
2. This unsatisfactory situation was ultimately resolved by the parties agreeing
that the issue raised in the appeal is whether the Court should exercise its
discretion to approve an increase of fill in Lots 12, 13 and 14 (being part of the
land in a subdivision approved by the respondent council) above the levels
shown in approved works as executed plans. The increases range between
0.96 metres and 3.25 metres. The levels in the approved works as executed
plans are different to the levels shown in the approved subdivision plan.
3. It is not necessary to go into the relevant history of the matter as that can be
gleaned from the judgment of Cowdroy J in matter No 40027 of 2000 delivered
on 14 June 2000, [2000] NSWLEC 110, unreported. In response to the council’s
application, Cowdroy J made orders requiring the applicant to remove fill from
Lots 11, 12, 13 and 14. The orders are stayed until seven (7) days following the
determination of these class 1 proceedings.
4. Presumably, His Honour intended to accord the applicant the opportunity to
obtain such approval as might be forthcoming from the Court on a merits
appeal. The carrying out of illegal works generally is not an impediment to the
consideration of an application on the merits ( Kouflidis & Ors v City of
Salisbury (1982) 29 SASR 321; 49 LGRA 17; Longa v Blacktown City Council
(1985) 54 LGRA 422; Ireland v Cessnock City Council (1999) 103 LGERA 285).
5. Following the approval of the original subdivision application, a dwelling
house has been erected on Lot 14 and a further dwelling house is in the course
of construction on Lot 13.
The legal status of the application for modification
6. Until Graham Brooks, the applicant’s consultant heritage architect, was
cross-examined, both parties had proceeded on the basis that the application
for modification is seeking approval to levels of fill already achieved.

4. 7. It is not now in dispute that the level of fill in Lot 14 is at the level for which
approval is being sought. The present level of fill in Lots 12 and 13 is above the
approved level but below the prospective level. The prospective level of fill is
intended to be consistent with the height of concrete covers over junction pits
in the drainage system. It is agreed that it is not a necessary engineering
requirement for the proper functioning of the drainage system that the covers
remain at the built height. They can be lowered.
8. There is a long line of authority in this Court, exemplified by the
observations made by Cripps J in Longa v Blacktown City Council (1985) 54
LGRA 422, which supports the proposition that there is no power in a consent
authority or the Court to approve unauthorised work which has already been
carried out.
9. In Longa, Cripps J accepted that although it was not open to the council or
the Court to approve a structure already erected on the land, other than
perhaps pursuant to s 317A of the Local Government Act 1919 (“the LG Act
1919”), as it then stood, nevertheless it would be open for the builder to obtain
building approval for future work in respect of the partly completed building
that had been erected without council approval. It should be noted, however,
that Longa was an appeal against an order for demolition of a partly erected
building under s 317B of the LG Act 1919 and accordingly, the comments by
Cripps J were strictly obiter dictum.
10. Furthermore, the observations by Cripps J in Longa appear to be
inconsistent with his earlier obiter remarks in Lirimo Pty Ltd v Sydney City
Council (1981) 66 LGRA 47 when he stated that “the inclusion of s 124 of the
Environmental Planning and Assessment Act lead me to the view that an
applicant is not precluded from obtaining a proper and valid application for
consent to the use of land or the erection of a building notwithstanding the use
or erection preceded the application for consent”.
11. There is no reason to depart from the approach taken by me in Steelbond
(Sydney) Pty Ltd v Marrickville Municipal Council (1994) 82 LGERA 192 in
respect of an application made under s 106 of the Local Government Act 1993
(“the LG Act 1993”) to amend a building approval. I decided that consent could
not be given to approve work already carried out. The approach was
subsequently embraced by Pearlman J in Connell v Armidale City Council
(Pearlman J, NSWLEC, 25 September 1996, unreported).
12. In Connell, Her Honour extended the principle which stands against the
capacity to grant retrospective approval to the application of s 102 of the
Environmental Planning and Assessment Act 1979 (“the EP&A Act”).
13. After considering a number of authorities, including Lirimo , Steelbond and
Connell , in Herbert v Warringah Council (1997) 98 LGERA 270, Sheahan J
found that s 102 requires approval of works prospectively and cannot be used
to amend a consent where the works referred to in the application have
already been carried out.
14. Although Her Honour in Connell appears to have considered the
relationship between s 76, s 124 and s 102 of the EP&A Act (as it then applied)
to conclude that s 102 could only have a prospective effect, it is not clear from
the judgment of Sheahan J in Herbert how he reached the conclusion that

5. “(t)he cases clearly find s 102 requires approval of works prospectively”. The
only case cited by His Honour in Herbert that bears upon the present issue is
the ex tempore decision of the Chief Judge in Connell . In that case Her Honour
was hampered by the circumstance that Mr Connell appeared without legal
representation, a fact which she lamented in the judgment at p 4.
15. In the present case I have the benefit of full argument and submissions
from counsel representing both parties.
16. It must first be observed that s 106 of the LG Act 1993 and s 96 of the EP&A
Act are not in the same terms. Subsection (2) of s 106 expressly incorporates s
78 of the LG Act 1993 which provides that an application may be made by the
person “seeking to carry out the activity” .
17. Pursuant to s 106(5) of the LG Act 1993, the amended approval replaces
the original approval as from the date endorsed on the notice of determination
of the application, which in context must be assumed to be the application for
amendment. By contrast, s 96(4) of the EP&A Act provides that modification of
the development consent is not to be construed as the granting of
development consent but a reference to a development consent is a reference
to the development consent so modified.
18. In Connell, Pearlman J was persuaded that s 76(2) (as it then was)
contained words of prospective import, as I had observed in Steelbond.
19. Section 76A(1) of the EP&A Act is relevantly in the same terms as the
former s 76(2) it replaced. Section 76A(1) expressly proscribes the carrying out
of development unless development consent has been obtained and is in force
and the development is carried out in accordance with the consent and the
instrument.
20. Notwithstanding a foreshadowed argument that a modification of
development consent has effect retrospectively by dint of s 96(4), in contrast
to an amended approval under s 106(5) of the LG Act 1993, it is difficult to
discount the overall aim of the scheme of the EP&A Act. In my view the aim can
be distilled from a reading of s 76A. Development generally shall not be carried
out where consent is required unless the consent has been obtained and is in
force and the development is carried out in accordance with the consent. If
that is a correct perception of the operation of the EP&A Act in respect of the
control over the carrying out of development, then the Court needs to be
persuaded that s 96 can be marshalled in support of a condonation of
development already carried out in breach of the existing terms of a consent.
21. In answer to questions in cross-examination by Mr Wilson, Mr Brooks
indicated that although the level of fill referred to in the application for
modification had been present on the site earlier this year, some of that fill had
been removed. It became evident on the site inspection, and conceded by Mr
Wilson on behalf of council, that the level of fill on Lots 12 and 13 at least is
presently below that contemplated in the application although, as I have
already pointed out, it is above the level shown on approved plans.
22. In Jacklion Enterprises Pty Ltd v Sutherland Shire Council (Pearlman J,
NSWLEC, 8 July 1998, unreported) Pearlman J was content to assume, but only
for the purpose of determination of the question of law in that case, that
Steelbond , Connell and Herbert established the proposition that there is no

6. power to grant retrospective consent for development already carried out. It
was not necessary for Her Honour to further consider the proposition in Jacklion
because she decided on the facts of the case that the modification application
did not seek to obtain retrospective consent. However, Jacklion is authority for
the principle that a condition which controls the impact of a subdivision may be
modified pursuant to s 102, notwithstanding that building work controlled by
the condition has been carried out in a manner contrary to the condition.
23. In Steelbond at 195 there is a discussion regarding the suggestion that s
124(3)(b) furnishes a limited opportunity to obtain a development consent
provided it relates only to a continuing breach. However, Mr Leggat argues
that the reference to “that consent” in s 124(3)(a), as distinct from s 124(3)(b),
does not compel the maintenance of what he describes as the illogical
distinction between development consent for use of an unauthorised building
and development consent for the construction of an unauthorised building. To
support this line of argument he has regard to the opening words of subsection
(3) which he says clearly contemplate the failure to obtain a consent in the first
place.
24. Mr Leggat’s submission certainly has merit if the consent contemplated by
the Court pursuant to s 124(3)(a) is referable to circumstances relating to the
future use of an illegal structure. The remaining question is whether s 124(3)
can be applied to circumstances where development has been carried out
otherwise than in accordance with an existing consent or the conditions thereof
and the alleged breach can only be remedied retrospectively.
25. It is not necessary in this case to reach any final decision on that question
in so far as it relates to the prospect of a development consent arising under s
124(3).
26. Section 124(3) does not contain any reference to modification of a
development consent. The relevant phrases are “failure to obtain a consent”
and “to enable a development application to be made” . Cowdroy J did not
make any orders pursuant to s 124(3). The class 4 proceedings were not
adjourned to enable a development application to be made. Final orders were
made. Those orders were stayed until these proceedings are concluded. The
effect of s 124(3) therefore has little factual bearing on the present application
or on the prospective or retrospective effect of an application for modification.
27. The language of s 96 (or the former s 102) itself does not mandate against
retrospective development. The only prospective language is the reference to
“the proposed modification” in subsection 1A(a). A practical purpose of s 96 is
to provide an opportunity to deal with anomalies in design unforeseen at the
date of grant of development consent or, as the history of the legislation
suggests, to legitimise partial changes that do not have the effect of radical
transformation. The original concept of the modification of the details of a
consent appears to have been reintroduced by s 96(1), although not in the
same terms.
28. Subsection (4) of s 96 is the same as the previous subsection (4) of s 102. It
expressly distinguishes modification of a development consent from the
granting of development consent, thereby suggesting that at least in some
respects the consideration and approval of an application for modification is to
take place in a different context to the consideration of an application for
development consent. Furthermore, the subject of an application made

7. pursuant to s 96 is the development consent, not the development itself.
29. One is then left to ponder how the express words in s 76A can be
reconciled with the lack of a concise formulation in s 96 and a broad
construction of s 124(3)(a).
30. Section 76A as well as s 78A clearly operate in the context of a prospective
proposal whereas a modification of consent pursuant to s 96 operates
retrospectively by dint of s 96(4). A modification may or may not alter some
aspect of the development itself. That some degree of change is contemplated
is recognised by the constraint in s 96(1A) and (2) that the development to
which the consent as modified relates must be substantially the same
development.
31. Even if s 124(3) does not ameliorate the strict application of s 76A, as Mr
Leggat suggests it does, a broad construction of s 96 clearly leaves that
potential open. The effect of s 96(4) is that any development already carried
out in conformity with the consent as modified is deemed to have been carried
out in accordance with the consent so modified. On that basis no conflict with s
76A will arise as the development is deemed to have been carried out pursuant
to a consent.
32. Moreover, the broad construction of s 96 leads to a practical result that
enables a consent authority to deal with unexpected contingencies as they
arise during the course of construction of development or even subsequently,
provided of course that the development to which the consent as modified
relates is substantially the same development.
33. It follows from the foregoing analysis and reasoning that in my view an
application that relates to development which has been already carried out can
be made pursuant to s 96. The Court is therefore in a position to consider the
subject application on the merits.
34. The above conclusion renders it unnecessary to deal with submissions
made by Mr Leggat relying on the decision of Hemmings J in Hooper & Anor v
Lucas & Ors (1990) 71 LGRA 27. That case appears to be authority for the
proposition that under the LG Act 1919 there was power to grant approval for
building work that depended for its efficacy on unauthorised building work. Mr
Leggat seeks to draw an analogy in respect of the present application to
modify the levels of fill in Lots 12 and 13 above those already achieved without
the required approval. The Court must nevertheless determine whether the fill
placed in Lot 14 can be approved retrospectively as a consequence of granting
the application to modify the development consent. If the fill in Lot 14 can be
approved in that way then the Court can make a determination in respect of
the existing fill on Lots 12 and 13 on the same basis.
The merits of the appeal
35. The whole site known as Windy Dropdown is bounded on the south by
Molong Street, on the east by an unformed road and a cliff top public reserve
overlooking the ocean, and on the north and western boundaries by existing
residential allotments. The site slopes from the south and west boundaries
down to a low point in the north-east corner of the site. The original Windy
Dropdown house is located at the high point of the site adjacent to the
southern boundary.

8. 36. It is a condition of development consent granted 12 March 1998, as
subsequently modified, that the development comply with the provisions of a
submitted Conservation Plan prepared by Graham Brooks & Associates Pty Ltd
dated 2 January 1998.
37. The Conservation Plan recognises that as a matter of policy further
subdivision of the property and erection of free standing houses is acceptable
provided the overall topography and landscape nature of the site is respected
and the essential north-eastern views from the houses are retained. As I have
said, the erection of dwelling houses has already commenced on the site.
38. It is a condition of the development consent as modified that a Landscape
Preservation Area be established in the north-eastern sector of the site, as
indicated on plans dated 9 September 1998. The conditions of consent also
constrain all proposed development, including paved landscape areas,
dwellings, garaging, outbuildings, clotheslines and any structures associated
with dwellings, to within identified building areas detailed in the Conservation
Plan.
39. Approved drainage and sewerage works have been carried out within the
Landscape Preservation Area. The council advised the applicant these works
were satisfactory in a letter dated 27 August 1998.
40. During the construction of the drainage and sewerage works an existing
grey concrete wall on the eastern boundary of the land and around part of the
northern boundary was demolished and a new wall was erected in the same
location.
41. The linen plan for the subdivision was released on 20 October 1998.
42. The Conservation Plan deals specifically with the protection of the
extensive views available from the Windy Dropdown house to the north-east. It
cannot be said that the proposed change of levels will impede that prospect.
43. The intention that the Landscape Preservation Area be preserved in its
natural state was generally frustrated by the approved works carried out in
conjunction with the drainage and sewerage system.
44. The original natural ground levels of the site along the eastern boundary
adjacent to Lots 11, 12, 13 and 14 were consistent with the levels of the coastal
reserve to the east of the site. The fill already placed in that area has resulted
in a disjunction between the area inside the wall and the coastal reserve east
of the wall. Arguably the wall has always had that effect.
45. It is contended in the Conservation Plan and by consultant experts that the
original wall subscribed to a sense of enclosure of the site. There is some
dispute as to whether the sense of enclosure was one experienced by the
occupiers of the site or by persons viewing it from the outside as an estate or
compound.
46. The Court accepts that the proposed fill will not compliment the landscape
character and public use and enjoyment of the coastal reserve. Firstly, because
of the disjunction already referred to. Secondly, there is the prospect of
persons within the site overlooking the coastal reserve thereby detracting to

9. some extent from the amenity of the scenic track across the headland.
Conversely, it will allow users of the track to be aware of activities on the site in
the area between the houses and the wall. Realistically, it is doubtful whether
persons outside the site have been able to perceive any continuity between the
reserve and the land in the Landscape Preservation Area since the time the
original wall was erected many years ago.
47. It is suggested by the council’s experts that the increase in levels of the fill
will have the effect of increasing the prominence of the proposed new dwellings
and thus reduce the visual prominence of the original house.
48. The applicant’s consultant heritage architect told the Court that in his
opinion the degree of adverse impact from the introduction of raised land
levels behind the concrete boundary wall as claimed by the council is greatly
exaggerated. He points out that the majority of any such impact has already
been established and approved by the principle that accepted the introduction
of new dwelling houses along the north-eastern part of the site. These houses
are and will be visible from Windy Dropdown itself and from prominent parts of
the walkway adjacent to the site, including a nearby lookout.
49. The council’s consultant conservation landscape architect maintains his
opinion that the character of the land within the enclosed site will be changed
markedly from being a natural vegetated area to a rather bare space in which
built forms and rocks will predominate. There is some substance in that view.
The issue is whether that change is sufficiently material to justify refusal of the
application.
50. The Court has the benefit of direct oral evidence from the applicant’s
consultant heritage architect who was overseas at the time of the hearing
before Cowdroy J and thus not available for cross-examination.
51. I agree that the impact of raising the levels and the loss of vegetation
within the Landscape Preservation Area is not as significant as the council’s
witnesses would have the Court believe.
52. The increase in the level of fill beyond that recognised by the approved
works as executed plans is marginal compared to the increase over levels
shown in the plans approved by the development consent.
53. Stripped of the opprobrium of the applicant carrying out works illegally, the
proposal to raise the level of the fill is not such that demands refusal of the
application on its town planning merits.
54. In particular, the concept of the sense of enclosure created by the wall
along the eastern boundary of the site has been lost by the erection and the
prospect of the further erection of substantial dwellings on the eastern facing
lots. It is the Court’s opinion that it is the approved structures that will deprive
the site of its former relationship with the coastal reserve and the internal
amenity provided by the enclosing wall, if they ever existed.
55. In my opinion, there is no sound planning reason why the application for
modification should be refused, provided the level of fill placed does not
exceed the levels postulated by the placement of the existing cement covers
over the inspection pits.

10. 56. The impact on the Windy Dropdown house itself is insignificant.
57. Notwithstanding the approach taken by Cripps J in Woollahra Municipal
Council v Alcaine (1986) 59 LGRA 40 and the Court of Appeal in Woollahra
Municipal Council v Barlow & Ors (1988) 66 LGRA 248, the approval of the
application for modification of development consent is in no way intended to
constrain Cowdroy J in the exercise of any further discretion in the class 4
proceedings. The considerations he may take into account if it is necessary to
make any further decision in that matter are obviously broader than the
planning merits taken into account in these proceedings ( Warringah Shire
Council v Sedevcic (1987) 10 NSWLR 335).
Conclusion
58. The applicant has been successful in mounting an argument that the
consent can be modified to reflect the levels of fill identified by council’s town
planner in Table 1 to her report to the council meeting on 16 November 1999.
The approval goes no further than that.
59. The final text of any amended or modified condition has not been
formulated in the course of the proceedings and accordingly, the parties are
directed to bring in short minutes of appropriate orders to reflect the Court’s
decision.
60. The exhibits may be returned.
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