Anderson v City of Sydney Council No. 2

[2015] NSWLEC 1144

Land and Environment Court

New South Wales

Medium Neutral Citation:	Anderson v City of Sydney Council No. 2 [2015] NSWLEC 1144
Hearing dates:	7 May, 2015
Decision date:	13 May 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is dismissed. 2. Development Application No. D/2014/1585 for alterations and additions to an existing building, being the construction of a roof terrace, at 15 Billyard Avenue, Elizabeth Bay is refused. 3. The exhibits, other than exhibit 1, 5 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: private roof terrace on existing residential flat building; impact of the proposal on the heritage significance of the contributory building to the heritage conservation area; whether the proposal exceeds the floor space ratio development standard; whether State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development applies to the proposal; proposed consent orders.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Anderson v City of Sydney Council [2015] NSWLEC 1135
Category:	Principal judgment
Parties:	Dirk Anderson (Applicant) Council of the City of Sydney (Respondent
Representation:	Counsel: Ms S. Duggan SC (Applicant) Ms F. Berglund Barrister (Respondent) Solicitors: Gadens Lawyers (Applicant) Council of the City of Sydney (Respondent)
File Number(s):	10997 of 2014

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application No. D/2014/1585 for a roof level terrace on an existing residential flat building at 15 Billyard Ave, Elizabeth Bay (the site) by the Council of the City of Sydney (the Council).

2. The appeal was subject to mandatory conciliation on 23 February 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). During the conciliation conference, the Court heard evidence from resident objectors and viewed the site from a number of apartments within the Macleay Regis. As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 20 March 2015, pursuant to s 34(4) of the LEC Act. The parties consented to the admission of evidence given at the s 34 conciliation conference on the 23 February 2015, pursuant to s 34(12) of the LEC Act.

3. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 9 April 2015 for the applicant to rely on the amended proposal (the proposal). Following the amendment of the proposal, the Council was satisfied that all of the issues that Council and the resident objectors had raised were satisfactorily addressed and the Council agreed to enter into proposed consent orders with the applicant (exhibit 5).

The site and its context

4. The existing residential flat building at 15 Billyard Avenue, Elizabeth Bay is five storeys, with garages at the street level and a hipped roof with a parapet at the eastern elevation, fronting Billyard Avenue.

5. The Macleay Regis is a block of company title apartments located at 10-12 Macleay Street, Potts Point. The Macleay Regis is to the north-west of the site.

Background

6. Mr Anderson lodged Development Application No. D/2014/1585 on 15 October 2014 for the construction of a roof level terrace at the site and he lodged an appeal to the Court against the Council’s deemed refusal of his development application on 2 December 2014.

7. Council’s bundle of documents (exhibit 2) contains approximately 45 written objections from residents of the Macleay Regis, as well as written objections from other resident objectors. Objectors to the proposal were notified by letter apparently dated 17 April 2015 of Council’s agreement to enter into the proposed consent orders with the applicant. Following Council’s notification, the Macleay Regis Limited sought to be joined as a party to the proceedings and their application was dismissed on 7 May 2015, prior to the hearing of this matter (Anderson v City of Sydney Council [2015] NSWLEC 1135).

8. Two residents of the Macleay Regis and Mr Giovanni Cirillo, a planner, provided evidence on behalf of the Macleay Regis Limited during the hearing.

The proposal

9. The existing roof of the building is low pitched, hipped and metal clad and is predominately concealed (when viewed from Billyard Avenue) behind a decorative parapet with a return on each side, to the eastern Billyard Avenue elevation. The lift over-run projects through the roof on the southern side of the ridge behind the parapet. The section of the hipped roof behind the parapet has a central ridge running perpendicular to the parapet. The proposal is to remove a section of the existing roof structure on the northern side of the existing roof behind the parapet, approximately 12m long and 6m wide, and create a roof terrace accessed by stair from the apartment below, with an asymmetrical raised section of roof above the existing ridge to provide cover over part of the length of the terrace, with the remaining 2m on the northern side of the roof terrace unroofed. The proposal includes a glass balustrade on the northern and part of the western side of the roof terrace and a storeroom within the existing attic space at the western end of the roof terrace. The gap between the raised roof and the existing roof is to have louvres on the southern and western sides.

10. The amendments made to the proposal, that the Council says satisfactorily address the contentions, are as follows:

• The open area of the proposed terrace has been reduced from 3.2m wide to 2m wide, retaining a greater proportion of the existing roof on the northern side of the building;

• The raised section of roof is reduced in height above the existing ridge from 1m to 0.8m;

• The overall area of the existing roof form retained is increased;

• A storeroom has been provided;

• The position of the stair from the apartment below has been changed.

Planning framework

11. Clause 4, ‘Application of Policy’ of State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP 65) is as follows:

(1) This Policy applies to development being:

(a) the erection of a new residential flat building, and

(b) the substantial redevelopment or the substantial refurbishment of an existing residential flat building, and

(c) the conversion of an existing building to a residential flat building.

12. The site is zoned R1 General Residential pursuant to Sydney Local Environment Plan 2012 (LEP 2012) (Land Zoning Map LZN_021 LEP 2012) and the proposal is permissible with consent.

13. The floor space ratio (FSR) development standard for the site is 2:1 (FSR Map sheet FSR_021 LEP 2012). The objectives of the FSR development standard, at cl 4.4 of LEP 2012 include at (d):

to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.

14. Clause 4.6 of LEP 2012 ‘Exceptions to development standards’ permits variation of the development standards.

15. Clause 5.10 of LEP 2012 ‘Heritage conservation has the following relevant objectives, at sub-cl (1):

(a) to conserve the environmental heritage of the City of Sydney,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

16. Before granting consent under cl 5.10, the consent authority must consider the effect of the proposed development on the heritage significance of the heritage conservation area, at sub-cl (4).

17. Gross floor area is defined in the dictionary of LEP 2012 as follows:

gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes:

(b) habitable rooms in a basement or an attic

(i) terraces and balconies with outer walls less than 1.4 metres high

18. Habitable room is defined in the Building Code of Australia (exhibit C) as a room used for normal domestic activities, and excludes spaces of a specialised nature occupied neither frequently nor for extended periods.

19. The existing building is identified by the Council as contributory to the Elizabeth and Rushcutters Bays Heritage Conservation Area (CA20) (Heritage Map sheet HER_021 LEP 2012) (HCA).

20. The Sydney Development Control Plan 2012 (DCP 2012) includes the following relevant principle for the ‘The Bays’ Locality Statement, at 2.4.6:

(b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes.

21. DCP 2012 includes the following relevant objectives for heritage, at 3.9:

(a) Ensure that heritage significance is considered for heritage items, development within heritage conservation areas, and development affecting archaeological sites and places of Aboriginal heritage significance.

(b) Enhance the character and heritage significance of heritage items and heritage conservation areas and ensure that infill development is designed to respond positively to the heritage character of adjoining and nearby buildings and features of the public domain.

22. DCP 2012 includes the following in relation to heritage conservation areas, at 3.9.6:

(1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban patter by addressing the heritage conservation area statement of significance and responding sympathetically to:

(b) views to and from the site;

(d) type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings;

(4) Development within a heritage conservation area is to consistent with policy guidelines contained in the heritage Assessment Report for the individual conservation area.

23. DCP 2012 includes the following in relation to contributory buildings, at 3.9.7:

(2) Alterations and additions must not significantly alter the appearance of principal and significant facades of a contributory building except to remove detraction elements.

(3) Alterations and additions to a contributory building are to:

(a) respect significant original or characteristic built form;

(c) retain significant fabric;

(f) use appropriate materials, finishes and colours.

Public submissions

24. The objections of the resident objectors to the proposal can be summarised as:

• The proposal would impact on the visual and aural privacy of apartments on the eastern elevation of the Macleay Regis;

• The proposal will result in light spill;

• The proposed terrace is of an excessive size and the bulk of the raised roof is intrusive;

• The proposal will have a detrimental impact on the heritage significance of the heritage conservation area.

25. Two residents of the Macleay Regis provided evidence in court at the commencement of the hearing. Their objection to the proposal can be summarised as:

• The proposed roof terrace is too big and too close to the Macleay Regis;

• The proposal would provide a viewing platform for the residents of one apartment to look at the residents of 30-40 surrounding apartments, including direct views into the living rooms of the Macleay Regis; and

• The proposal would require residents of the Macleay Regis to close their curtains to achieve visual privacy, whereas they are now able to enjoy the view across the roof of the existing building on the site without any privacy impacts.

26. Mr Cirillo, a planner, provided evidence on behalf of the Macleay Regis Limited and the Council tendered his report in the proceedings (exhibit 6). Mr Cirillo raises the following issues:

• The proposed terrace and store room constitute additional floor area which should be included in the calculation of gross floor area and FSR, pursuant to the definition of gross floor area in the LEP 2012 and the additional floor area results in an exceedance of the FSR development standard in LEP 2012;

• The proposal is caught by sub-cl 4(b) of SEPP 65, being for the substantial refurbishment of an existing residential flat building and this has not been addressed in the Statement of Environmental Effects submitted as part of the application;

• The terrace is excessive in size with reference to the Residential Flat Design Code and should be no larger than the 10sqm specified in the DCP 2012;

• The proposal will have a detrimental impact on the privacy of the apartments in the Macleay Regis which have their living areas oriented to the east overlooking the site;

• The application should include a visual privacy impact assessment, such as photographs, sightlines and survey information; and

• The proposal impacts on views of Elizabeth Bay when viewed from the elevated position of apartments along Macleay Street, looking towards the east over the existing building.

Expert evidence

27. Mr Andrew Darroch (planning) and Mr Stephen Davies (heritage) provided expert evidence on behalf of the applicant. Mr Philip Jamieson (planning) and Ms Margaret Desgrand (heritage) provided expert evidence on behalf of the Council.

Planning

28. The planning experts agreed on the following:

• The amended proposal reduces the visibility of the roof terrace from the surrounding public domain and the proposal is appropriate to the building;

• Any impact of the proposal on views from surrounding apartments is minor and the proposal is acceptable;

• As the proposal is to be used as the private open space of one dwelling it would not result in unreasonable visual or acoustic impacts on surrounding apartments;

• The issue of light spill has been appropriate addressed through the imposition of a condition of consent;

• The proposal is consistent with the context and character of the locality;

• The proposed storage area is within the existing roof space and has a maximum height under the ridge of 1.6m. The proposed storage area was required by Council to be added to the amended proposal to provide for the storage of paraphernalia to be used on the roof terrace. The storage area is a non-habitable space and is therefore excluded from the gross floor area calculation according to the definition in LEP 2012;

• The proposed roof terrace, which is open and has a balustrade on the eastern side 1.1m high, is excluded from the gross floor area calculation according to the definition in LEP 2012;

• The 10sqm referred to for private open space in DCP 2012 is a minimum area;

• The proposal is not caught by sub-cl 4(b) of SEPP 65 as the proposal does not constitute a substantial refurbishment of the existing residential flat building. The proposal is for private open space for one apartment;

• The glass balustrade would not reflect light on the Macleay Regis as it is on the eastern side of the terrace;

• The Macleay Regis is 22m from the proposed terrace at the closest point, which is a greater than the 18m recommended in the Residential Flat Design Code (RFDC). The RFDC, although not a relevant consideration to this matter, demonstrates that the 22m is an acceptable distance between the proposal and the Macleay Regis in terms of privacy.

Heritage

29. The heritage experts agreed on the following:

• The contributory status of the building means that the Council’s role is about managing change, not about preventing change;

• The amendments made to the proposal have reduced the visibility of the changes to the roof when viewed from the northern side of the existing building;

• The amendments made to the proposal satisfy Council’s contention regarding the heritage impact of the proposal, raised in the Statement of Facts and Contentions (exhibit 1).

30. According to Mr Davies, when viewed from the street below, the roof is not a large part of the appreciation of the existing building, being concealed behind the elaborately decorated parapet and the changes proposed would be almost imperceptible when viewed from the street. The dimensions of the raised roof section have been kept to a minimal to allow for the stair access to the terrace. In Mr Davies’ view, Elizabeth Bay is not a consistent group of building and the existing building does contribute to the heritage significance of the HCA. He notes that the roof cladding was replaced during the 1990s, following the hail storm.

31. The Statement of Heritage Impact prepared by Urbis (exhibit 2) describes the existing building as ‘a representative example of an inter-war residential flat building which is a common building type within the local area and a characteristic building type within the Elizabeth and Rushcutters Bays HCA’ and finds that the existing building has contributory aesthetic significance in the context of the HCA.

Consideration

32. In considering the proposed consent orders, the Court’s Practice Note – Class 1 Development Appeals (paragraphs 35-6) provides the following:

Application for final orders by consent of parties

35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval.

36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard,

or that, in the circumstances of the case, notification is not necessary.

33. The Council submits that the objections raised by the resident objectors regarding the original proposal have been considered in the amendments made to the proposal following the conciliation conference. Notwithstanding the agreement of the parties regarding the proposed consent orders, in determining the matter, the Court is exercising the powers under s 80 and considering the matters under s 79C of the EPA Act.

Planning

34. I accept the agreement of the planning experts that the proposal is not caught by cl 4 of SEPP 65, as the proposal does not constitute a ‘substantial refurbishment of an existing residential flat building’. There is not a definition of substantial refurbishment in SEPP 65, however the on-line Macquarie Dictionary defines substantial as ‘of ample or considerable amount, quantity’. As the proposal is confined essentially to the removal of a portion of the roof structure and some works to create the roof terrace, leaving all the apartments within the building and the external facades intact, it cannot be characterised as a substantial refurbishment. Therefore SEPP 65 is not a relevant consideration.

35. I accept the agreement of the planning experts that the proposal does not add to the existing gross floor area, pursuant to the definition of gross floor area in LEP 2012. The storeroom, with a maximum ceiling height of 1.6m, is not a habitable room in an attic. The open roof terrace, with a balustrade along the northern side and part of the western side of 1.1m, satisfies the definition of a terrace excluded from the gross floor area in LEP 2012. As the proposal does not increase the gross floor area of the existing building, it therefore does not result in an exceedance of the FSR development standard for the site and a cl 4.6 written exception is not required.

34. While I am sympathetic to the concerns raised by the residents of the Macleay Regis, I accept the agreed evidence of the planning experts that a minimum 22m separation between the proposed roof terrace and the Macleay Regis is an acceptable separation between terraces/balconies and living areas in neighbouring residential flat buildings, particularly given the high density urban environment of Potts Point and Elizabeth Bay and as the proposal would be used as the private open space of one dwelling, it would not result in unreasonable visual or acoustic impacts on surrounding apartments.

35. I accept the evidence of the planning experts that 10sqm private open space referred to in DCP 2012 is a minimum area.

Heritage

38. Council’s contention regarding the impact of the proposal on the heritage significance of the HCA, prior to the amendments made to the proposal, was as follows:

Contention 1: Heritage Impacts

The proposal is unsympathetic to the style and period of the building owning to the removal of an extensive section of the significant roofscape and owning to its visual prominence, overly horizontal form, and its inconsistency in materials and detailing with the existing building. As such the proposal will diminish the building’s contribution to the character, views and heritage significance of the Elizabeth and Rushcutters Bays Heritage Conservation Area (CA20).

Particulars:

(a) The proposal does not comply with the heritage conservation objective of the Sydney LEP 2012 Clause 5.10 (1) (Heritage Conservation Objectives) as it diminishes the heritage significance of the heritage conservation area.

(b) The development is inconsistent with the principles established for development proposals within the Bays Locality Area as contained within Sydney DCP 2012 Clause 2.4.6 (The Bays Locality Area).

(c) The development is inconsistent with the heritage objectives of Sydney DCP 2012 Clause 3.9 as it fails to enhance the character of the heritage conservation area.

(d) The development is inconsistent with Sydney DCP 2012 Clause 3.9.6(1) and Clause 3.9.6(4) (Heritage conservation areas).

(e) The development is inconsistent with Sydney DCP 2012 Clause 3.9.7(2) and 3.9.7 (3) (Contributory buildings).

(f) The development is inconsistent with the recommended management within the Heritage inventory assessment report for the Elizabeth and Rushcutters Bays Heritage Conservation Area, and as such is inconsistent with Sydney DCP 2012 Clause 3.9.14(1) Heritage inventory assessment reports.

39. At the end of the hearing of the notice of motion for joinder, I put the parties on notice that I was not convinced that the heritage contention raised by Council in their Statement of Facts and Contentions (exhibit 1) was adequately addressed by the amended proposal. As a consequence, the heritage experts were called to provide evidence in regard to the amendments made to the proposal.

40. I accept the evidence that the amendments made to the proposal are an improvement on the original proposal, because it is essentially a little smaller and a little lower, resulting in more of the original roof form being retained. The Council has presumably acquiesced on that basis. This is reflected in the joint report of the heritage experts (exhibit 4), which uses phrases such as, ‘a more sympathetic response to the style and period of the building’ and ‘has a reduced impact upon the significant roofscape’. The amended proposal, however, remains much the same as the original proposal, as it uses the same materials as originally proposed and is in the same position with the same raised section of roof. For that reason, I do not accept that Council’s heritage impact contention, quoted above, is satisfactorily addressed by the amended proposal, because the amended proposal still retains many of the features complained about in the contention; the visual prominence, the overly horizontal form and the inconsistency in materials and detailing with the existing building.

41. I accept the agreed evidence of the heritage experts that as the existing building is contributory to the HCA and it is therefore an appropriate response to manage change to the existing building; but any change should be complementary to the existing contributory building. The form of the existing roof, which is a simple shallow pitched, hipped roof with a protruding lift tower, concealed behind the decorative parapet when viewed from the street, does not lend itself to being modified to create a roof terrace. The proposal is entirely at odds with the existing roof form. The raised section of roof along the ridge is an uncomfortable and untidy way of achieving covered access over the stair to the roof and it does not in any way respond to the form of the existing roof. The overall form of the proposal is inelegant; it is not complementary to the form of the existing building; it does not respond to the existing building; but is instead inserted and imposed on the form of the contributory building in order to achieve the desired outcome.

42. I accept Mr Cirillo’s evidence that views across the site from the taller buildings along the ridge of Macleay Street are also important and that the proposal should not simply be measured by what one can see of it from Billyard Avenue.

43. The proposal, in my view, erodes the contribution the existing building makes to the heritage significance of the Elizabeth and Ruschutters Bays Heritage Conservation Area and therefore fails to comply with the heritage conservation objective at sub-cl 5.10(1)(b) of LEP 2012. The proposal is inconsistent with principle (b) of 2.4.6; the objective at (b) of 3.9 and with (1)(d) of 3.9.6 and (3)(a) and (f) of 3.9.7 of DCP 2012; as maintained in contention 1: Heritage Impacts of Council’s Statement of Facts and Contentions (exhibit 1).

Conclusion

44. I do not accept that Council’s heritage impact contention is satisfactorily addressed by the amended proposal, because the amended proposal retains many of the features complained about in Council’s contention; the visual prominence, the overly horizontal form and the inconsistency in materials and detailing with the existing building. The proposal has a detrimental impact on the heritage significance of the Elizabeth and Ruschutters Bays Heritage Conservation Area and fails to comply with the heritage conservation objective at sub-cl 5.10(1)(b) of LEP 2012. For this reason, the proposal should not be granted consent and consequently I made the following orders:

Orders

45. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. D/2014/1585 for alterations and additions to an existing building, being the construction of a roof terrace, at 15 Billyard Avenue, Elizabeth Bay is refused.

3. The exhibits, other than exhibits 1, 5 and A, are returned.

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Susan O’Neill

Commissioner of the Court

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Decision last updated: 13 May 2015