Benjamin v Sydney City Council - [2015] NSWLEC 1568

Land and Environment Court

New South Wales

Medium Neutral Citation: Benjamin v Sydney City Council [2015] NSWLEC 1568
Hearing dates: 26 November 2015
Decision date: 02 December 2015
Jurisdiction: Class 1
Before: Morris C
Decision:
See [65]

Catchwords: DEVELOPMENT APPLICATION: rooftop terrace, impact on heritage conservation area
Legislation Cited: Sydney Local Environmental Plan 2012;
Environmental Planning and Assessment Act 1979
Cases Cited: Anderson v City of Sydney Council No. 2 [2015] NSWLEC 1144
Texts Cited: Sydney Development Control Plan 2012; Apartment Design Guide
Category: Principal judgment
Parties: Anthony John Benjamin (Applicant)
Sydney City Council (Respondent)
Representation:
Counsel:
Ms S Duggan SC (Applicant)
Ms F Bergulund (Respondent)
Solicitors:
Ms D Slimnicanovski, Gadens (Applicant)
Mr A Simpson, Sydney City Council (Respondent)

File Number(s): 10760 of 2015

Judgment

Development Application D/2015/843 was lodged by Mr Benjamin’s architect with Sydney City Council on 22 June 2015 seeking consent for a new terrace to the roof and new stairs to connect the existing living room of his apartment to that terrace.
The council refused consent on 28 July 2015 and Mr Benjamin is appealing that decision.

The site and its context

The site is legally described as Lot 1 in DP 602427 and is known as 15 Billyard Avenue, Elizabeth Bay. It is sited on the western side of Billyard Avenue, north of Onslow Avenue and contains a five storey residential flat building with garages at the street frontage and units behind and above. The building has a hipped, metal clad roof with a parapet at the east elevation.
The application relates to units 10 and 11 within that building and part of the roof area. These units are currently under renovation and will be combined as one unit that will occupy the whole of the top floor of the building.
The topography falls from west to east between Macleay Street and across Billyard Avenue to the Elizabeth Bay foreshore. This provides for a series of buildings which are oriented east across the site towards the views.
Development in the vicinity of the site is primarily residential with a variety of housing types, architectural styles and building heights.

Background and the proposal

An earlier development application for a roof terrace of a different form has been the subject to proceedings in this Court, see Anderson v City of Sydney Council No. 2 [2015] NSWLEC 1144. That appeal was dismissed on heritage grounds.
It is my role to consider the merits of this application.
This development application proposes the construction of a partially covered roof terrace in the north eastern corner of the building accessed from a proposed stairway to be constructed within the living room of the top floor unit (Units 10 and 11). The terrace would extend from the face of the existing lift overrun northwards to a point 1.85m from the existing northern gutter line. It would be bound by the front (eastern) parapet wall and has a length of 13.506m from that wall towards the rear of the site. It is generally 5.5m wide with the exception of the area in the north eastern corner which extends a further 1m to northern face of the parapet. The area of the terrace is 67.6sqm and it would be enclosed along its northern face with a glass balustrade. A wall would be constructed along the southern edge of the terrace with the pitched roof extended further north beyond the existing ridge line in a cantilevered arrangement beyond that wall. Along the western side of the terrace an additional hipped roof section would be introduced to provide further cover to the terrace and also assist in providing privacy to and from the terrace to adjoining units.
The existing ridge height is RL 38.28 and the proposed extension is at RL39.075.

The planning controls

The site is zoned R1 General Residential pursuant to Sydney Local Environmental Plan 2012 (LEP). The development is permissible with consent. Clause 2.3(2) of the LEP requires a consent authority to have regard to the objectives of a zone when determining a development application. The objectives of the R1 zone are:

• To provide for the housing needs of the community.
• To provide for a variety of housing types and densities.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To maintain the existing land use pattern of predominantly residential uses.

Clause 5.10 of the LEP contains Heritage provisions and subclause (2)(a) requires development consent for demolishing or altering the exterior of any building within a heritage conservation area. Subclause (4) is in the following form:

Effect of proposed development on heritage significance
The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

The existing building is identified by the council as contributory to the Elizabeth Bay/Rushcutters Bay Heritage Conservation Area (C20).
Clause 6.21 requires consideration of design excellence.
Sydney Development Control Plan 2012 (DCP) applies to the site and it is within “The Bays” locality. Section 2.4.6 of the DCP details the locality statement for that area as follows:

This locality consists of the Elizabeth Bay and Rushcutters Bay neighbourhoods and are bounded by Sydney Harbour and naval lands to the north; the rear of eastern lots along Macleay Street; the rear of lots to the south of Greenknowe Avenue; the rear of lots to the west of Roslyn Gardens; St Lukes Hospital; Roslyn Street to the West; Rushcutters Bay Park to the east and New South Head Road to the south.
The Bays is a predominantly residential area with a diversity of housing styles
and densities within a landscape setting that allows view sharing to continue from the private domain and gaps between buildings. Elizabeth Bay House is to be preserved as a heritage item and a landmark heritage building.
There are small clusters of shops at Elizabeth Road and Bayswater Road that complement the Kings Cross centre.

The clause also includes a number of design principles including:

(a) Development must achieve and satisfy the outcomes expressed in the
character statement and supporting principles.
(b) Development is to respond to and complement heritage items and
contributory buildings within heritage conservation areas, including
streetscapes and lanes.
(c) Maintain view corridors to Sydney Harbour and parks…….
(i) Preserve the diversity of building types, architectural periods and heights in the area by retaining buildings from the Federation, Victorian and interwar periods.

Section 3.9 of the DCP contains General Heritage Provisions with the following objectives:

(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.

Section 3.9.6 and 3.9.7 are relevant to the application and are in the following form:

3.9.6 Heritage conservation areas
Buildings and sites within heritage conservation areas are identified on the
Building contributions map as being contributory, neutral or detracting to the
character and heritage significance of the heritage conservation area.
The contribution of these buildings is based on studies carried out by heritage
consultants for the City.
New development in heritage conservation areas must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions. Infill development should enhance and complement existing character but not replicate heritage buildings.
(1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing the heritage
conservation area statement of significance and responding sympathetically to:
(a) topography and landscape;
(b) views to and from the site;
(c) significant subdivision patterns and layout, and front and side setbacks;
(d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings;
(e) the interface between the public domain and building alignments and property boundaries; and
(f) colour schemes that have a hue and tonal relationship with traditional colour schemes.

(2) New infill buildings and alterations and additions to existing buildings in a heritage conservation area are not to be designed as a copy or replica
of other buildings in the area, but are to complement the character of the heritage conservation area by sympathetically responding to the matters
identified in (1)(a) to (e) above.
(3) Infill development is not to include garages and car access to the front elevation of the development where these are not characteristic of the area.
(4) Development within a heritage conservation area is to be consistent with policy guidelines contained in the Heritage Inventory Assessment Report for the individual conservation area.
3.9.7 Contributory buildings
Contributory buildings are buildings that make an important and significant contribution to the character and significance of the heritage conservation
area. They have a reasonable to high degree of integrity and date from a key development period of significance of the heritage conservation area. They are buildings:
• from a significant historical period and are highly or substantially intact; or
• from a significant historical period and are altered yet recognisable and reversible.
(1) Contributory buildings are to be retained unless the consent authority determines the replacement is justified in exceptional circumstances.
Sydney DCP 2012 - December 2012 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 detracting elements.
(3) Alterations and additions to a contributory building are to:
(a) respect significant original or characteristic built form;
(b) respect significant traditional or characteristic subdivision patterns;
(c) retain significant fabric;
(d) retain, and where possible reinstate, significant features and building elements, including but not limited to original balconies and
verandahs, fences, chimneys, joinery and shop front detailing;
(e) remove unsympathetic alterations and additions, including
inappropriate building elements;
(f) use appropriate materials, finishes and colours; and
(g) respect the pattern, style and dimensions of original windows and doors.

(4) Where an addition to the building is proposed, significant external elements are to be reinstated.
(5) Foyers or other significant interior features, including hallway detailing, panelling and significant staircases, designed to be visible from the
street, are to be retained especially where they form part of the building’s contribution to the character of the heritage conservation area.

Section 3.9.14 provides for Heritage inventory assessment reports and, pursuant to the provision in subclause (1), development within a heritage conservation area or special character area is to be consistent with the policy guidelines contained within the Heritage Inventory Assessment Report.
The Elizabeth Bay and Rushcutters Bay Heritage Conservation Area Inventory Report includes the following Statement of Significance:

Elizabeth Bay and Rushcutters Bay has significance for its original pattern of nineteenth century Marine villas and grand residences and terraces of late nineteenth and early twentieth century.
The area has significance for second overlay of early to mid-twentieth century apartment housing. Together with Potts Point no where else in Australia were apartments built to this height or level of density. These two periods represent the largest proportion of built area and creates streetscapes of strong urban form and Victorian, Federation and Inter - war character.
The area provides building types which represents the last 150 years of development and coexist in a harmonious way. Despite the intrusive nature of later high rise towers whose impact is disproportionate to their proportion of built area. The area provides a highly cohesive character although the towers visually dominate the background of low scale streetscapes.

Billyard Avenue is rated A and is said to contain ‘Boomerang’, Grand villas of Victorian period, Post WWII flat development, water glimpses, detracting garages on street at rear of properties.
Recommended management policy is:

POLICY RECOMMENDATIONS (Generic Conservation Area policies) 1.Protection of Significance (a) Subdivision - Retain Victorian subdivision - Do not allow amalgamation of sites (b) Key Period Significant (Contributory) Development: - Retain 1-2 Storey Victorian terraces - Retain Victorian / Federation Inter-war Public Buildings - Retain Victorian-Federation Commercial development. - Retain Inter-war apartment buildings - Retain Scale - Maintain building alignment - Retain form - Retain finishes and details particularly face brick and now rare slate roofing - Reinstate verandahs, front fences, lost detail - Protect intact rear lane - Additions to rear of low scale building not to exceed ridge height and retain original roof form - Discourage front dormers to terrace 2. Redevelopment of Non Contributing Sites - Encourage reinterpretation of earlier Subdivision on amalgamated sites by facade treatment - Retain small scale of development in low scale areas - Respect scale and form of significant development - Respect building line of significant development - Encourage rendered and painted finishes. Face brick finishes need to be carefully selected and detailed. - Encourage contemporary detail - Limit carparking access from street - Do not allow carparking forward of building line - Do not allow additions forward of building line - Rationalise existing additions forward of building line 3. Enhance Significance of Area - Reinforce the existing landscaped character - Provide landscape screening to detracting sites 4. FSR and Height Controls. Controls to reflect desired future character of area. - Revise height controls to reflect 3-storey scale of significant development to terrace areas. - Revise FSR controls to encourage retention of significant development patterns of highrise adjacent to low rise dwelling. As the area is already densely populated revise FSR to restrict further development 5. Other Recommendations: - Provide detail height and topography analysis and assessment of view sheds. Identify sites with potential for redevelopment to address their detracting nature by a FSR bonus. - Contributory buildings should be retained and conserved. A Heritage Assessment and Heritage Impact Statement should be prepared for contributory buildings prior to any major works being undertaken. There shall be no vertical additions to such buildings and no alterations to the façade of the building other than to reinstate original features. Any additions and alterations should be confined to the rear in areas of less significance, should not be visibly prominent and shall be in accordance with the relevant planning controls. - Neutral and detracting buildings should where possible be enhanced. Replacement of such buildings should be in accordance with the infill provisions of the relevant planning controls.

The issues

The contentions in the case are whether the design of the development is appropriate having regard to the work proposed to be undertaken to the contributory building within the heritage conservation area; whether it would satisfy the design excellence provisions of the LEP and the matters raised by objectors.

The evidence

The hearing commenced on site with evidence heard from a number of objectors to the proposal. The view included observation of the site from a number of vantage points along Billyard Avenue and from within two apartments in the Macleay Regis building at 12 Macleay Street. That building is to the north west of the site and is a heritage item under the LEP.
The issues raised by the objectors are summarised as follows:

Noise problems in the area will be exacerbated;

Design of the structure is inappropriate, does not reflect the heritage significance of the building, doesn’t face the harbour/views, will be visible from around 100 dwelling units;

Privacy and amenity impacts, 22m separation is inadequate.

Expert heritage evidence was heard from Ms J Hill for the applicant and Mr T Smith for the council with Mr A Darroch (applicant) and Mr P Jamieson (council) providing town planning evidence.
Mr Smith says the proposed roof terrace will have negative impact on the heritage significance of the existing contributory building.
The exterior form of the building is substantially intact. The existing roof form is a simple hip roof and can be readily seen from the north along Billyard Avenue, the South from McElhone Reserve and Onslow Avenue and from above from buildings to the west.
The existing roof is architecturally characteristic of the building type and is also quiet in its relationship to the elevations of the building when viewed from surrounding streets. Viewed from above, the roof forms a characteristic and contributory fifth facade to the building and reads as the original roof structure, albeit with a more recent metal roof cladding. This roof cladding does not preclude the ideal conservation outcome for this roof in the long term: the retention of its existing structure and form and the reconstruction of the original terracotta tiled roof.
The construction of the proposed roof terrace would create geometric, structural and detailing complexities that would preclude a future reconstruction of that terracotta tiled roof.
Miss Hill says the building is characterised by a facade which is 18m in height and largely viewed from below which makes it the dominant characteristic from the public domain the roof, which is pitched at 32°, is largely unseen from close vantage points. The roof occupies a small percentage of the views of the building when viewed to the north and south as per the montages (exhibit E). The roof, which is visible from adjacent buildings, is recessive due to its grey metal roofing. It is part of a wider view that encompasses the water, landscapes and stone cliffs and more dominant features such as Elizabeth Bay House, which is isolated on its site and characterised by a slate roof.
Miss Hill says the proposed roof terrace does not detract from the architectural integrity of the contributing component nor does it overwhelm the integrity of the contributory building. The proposal, while not traditional in form, is simply an extension of the existing roof form in a similar material.
The bulk and scale of the new work extends the original form of the main roof to a minor degree and the existing roof form, the key aspect of the roof’s significance is retained by retention of 83.5% of the roof form and 1 metre edge of the roof, creating a half glass rail to the terrace.
In views from the south Miss Hill says it will be barely noticeable as a minor extension of the existing roof and from the north it would have very limited visibility. It appears as a cut-out with a raised roof form and increases the extent of roof by less than 3.7% of the total roof and facade height.
In views from above, in particular the Macleay Regis, it reads as a minor extension of the southern roof plane. The cut-out of the roof steps back to retain the visibility of the parapet and reduces views of the new roof form below. The proposal, which maintains the existing roof pitch, does not preclude any future return to a tiled roof.

Mr Smith contends that the proposal has an unacceptable impact on the significance of the Heritage Conservation Area.
The proposed design removed a substantial section of the existing characteristic and contributory roof and replaces it with an uncharacteristic and detracting roof element.
The proposed roof terrace carves out of the existing solid roof form and erodes it. In plan, the symmetrical ridge line is disrupted with a cranked projection of the southern roof plane towards the north. In elevation from the south, this results in the existing horizontal ridge line ramping up in elevation from the north, the existing solid roof plane opens into a gaping maw which significantly disrupts the current view.
The addition of lighting to the interior will have a significant impact on its appearance at night for example, any downlights in the raked ceilings would be clearly visible from the northern end of Billyard Avenue and elevated neighbours to the north west.
Miss Hill contends the proposed roof form is appropriate because it is consistent with the simple language of the existing roof and has minimum impact on the integrity of the roof form as viewed from key vantage points. For these reasons, the impact on the significance of the Elizabeth and Rushcutters Bay Heritage Conservation Area is minimised. There is an established pattern of roof terraces to contributory components within the Conservation Area. The Macleay Regis, which is a highly significant heritage item, has a large roof terrace that is dominant and detracting in views from the north and east, due to its location.
The proposal introduces a sympathetic element to the contributory component of the Conservation Area. It responds to the heritage significance of the Conservation Area by not impacting on primary views of the building. The proposal can be seen to comply with the policy recommendations for management in that the inter-war apartment building is retained; the scale is retained; the building alignment is maintained; the building form is retained; the roof form is retained to 84%; no changes are proposed to the painted face brick; the finishes are retained and the cut-out is equivalent to the cut-out at 6 Billyard Avenue. In addition the contributory building is retained and conserved; there are no vertical additions to the building as the roof extension sits behind the existing facade; there are no alterations to the facade of the building and the additions and alterations are confined to areas of less significance, being the less visible, utilitarian roof and therefore not visually prominent.
Miss Hill concludes the proposal accords with the relevant planning controls including design excellence.
Mr Smith contends that the proposal, and its impact heritage significance of the building, fails the Burra Charter test for work to places of heritage significance: do as much as necessary, as little as possible. In the supplementary joint report (Exhibit 6) he analyses archival documentation that had been provided following the completion of the original joint report and considers that there is an option for a terrace within the unit because the plans have proven the previous existence of an original balcony within the facade on the top floor he says it is preferable to reinstate this rather than build a new balcony that disrupts the roof.
The study room shown in the plans currently filed appears to exactly match the location and extent of the original loggia balcony shown in the original drawings and it would be a very simple building proposition for this space to revert to its original use and to provide usable, sheltered outdoor space directly accessible from the dining room.
The approved apartment layout currently affords excellent solar access to the sitting and living rooms through extensive original openings to the north facade and the north corner of the east façade. The reversion of the approved study room to its original balcony use would marginally improve on the amount of sunlight entering the dining room from the east and south east as the proposed fit out of the study appears to narrow the effective width of the space and creates deep reveals to the south windows which would block direct sunlight entering the dining room. The area of such a balcony would be approximately 11.2m², which exceeds the 10m² minimum stipulated in clause 4.2.3.7 (6)(b) of the DCP and is only 0.8m² below the 12m² required by the Apartment Design Guide (AFG). Unfortunately, sun access would not equal the two hours required between 9 and 3 midwinter but preliminary shadow testing indicates that of the balcony would receive direct sun between 7.15 and 9.15 midwinter.
A restored original balcony would also satisfy the requirement of clause 4.2.3.7 (3) as it would be directly accessible from the living area and would be capable as serving as an extension to the living area and would be capable as serving as an extension to the living area. The proposed roof top terrace does not satisfy this clause.
Mr Smith concludes the existing building is characteristic of the Elizabeth and Rushcutters Bay Heritage Conservation Area in that it is comprised of significant fabric from two periods of development significant to the conservation area in the 1890s and 1920s. The building presents to the street as an intact 1920s apartment building and it is fabric of this period that comprises its primary contribution to the conservation area. Reinstatement of the original 1920s balcony at the south east corner of the existing top floor would satisfy most requirements for balconies in the DCP and ADC but would not fully satisfy midwinter sun access. He says reinstatement of the original earlier balcony would be an optimal heritage outcome.
Miss Hill has reviewed the supplementary documentation and says the 1924 original balconies have been glazed and would have originally provided for a sleep out with windows that extended between the masonry piers and were concealed into the wall when open. The balcony was fully enclosed by a roof and ceiling and defined by masonry piers and therefore did not provide balcony amenity. This additional information confirms that the building has a low level of integrity; balconies were originally provided in the building; and reinstatement of those balconies would not provide direct solar access to the apartment due to the roof or satisfy the requirements of clause 4.2.3 - Amenity in the DCP. It is her view that the only location for a roof terrace with meaningful solar access is on the roof of the building.
During the hearing, Ms Duggan, for the applicant asked the experts if they considered that an alternate proposal that deleted the roof extension would overcome Mr Smith’s concerns about the visibility of the void under the roof form. Mr Smith said it would however he was concerned an alternate sunshade option may be used. Ms Duggan proposed a retractable type of blind system to address that issue. Mr Smith said that provided the system proposed was ephemeral then it would satisfactorily address his concerns in relation to the void.
I asked Ms Duggan whether there were any plans which showed the detail she was suggesting. There was not, however she urged the Court, if it was minded to consider such a proposal that plans could be provided under the Court’s “amber light” approach. Such a proposal would have the same form as the ‘drying court’/roof terrace at No 6 Billyard Avenue that was discussed during the site view and it was agreed that it would have similar form.
The planning experts agree that the proposal before the Court has no adverse impacts in respect to view loss, visual and aural privacy or light spill and that in isolation only, those impacts of the development are in the public interest. The proposal has been set back and behind an extended roof section from the west and is now separated by approximately 25m from the balconies of the nearest dwellings to the rear (west). The size of the balcony and the use being focused to the north and east and, by virtue that it will be used in association with a single private dwelling, will not result in unreasonable visual or acoustic impacts to neighbouring properties. Light spill impacts can be satisfactorily addressed through an appropriate condition.
In relation to design excellence, Mr Darroch notes that the proposed plans retain an extended section of roof on the southern, northern and western elevations. These elements, together with the simple extension of the pitch of the southern portion of roof to contain the access are considered to reduce the visibility of the roof deck and associated structures from the surrounding public domain and upper levels of the surrounding residential building and consequently avoid any adverse impacts to the subject building and surrounding conservation area. he considers the proposed architectural design is appropriate to the building and the location and satisfies the requirements of clause 6.21 of the LEP.
Mr Jamieson disagrees and says that due to the heritage impacts of the proposal, its impacts are inappropriate to the building and its location and as such, does not satisfy the design excellence provisions.
In terms of bulk, scale and visual appearance, Mr Darroch says the proposal as viewed from the surrounding properties is consistent with the context and character of the locality and is in the public interest. Mr Jamieson considers that because of the heritage impacts of the proposal, approval would not be in the public interest. He did consider that the alternate option put by Ms Duggan would reduce the impacts of the proposed roof and the sun shading for the space could be appropriately addressed through consent conditions.
Both agreed that the suggested conversion of the study area back to the private open space for the dwelling would not provide ideal amenity.

Conclusion and findings

For consent to the granted, there are a number of preconditions. The first is to have regard to the objectives of the R1 zone. It is common ground that the development does not offend these objectives and I concur.
Secondly, I must consider the effect of the proposed development on the heritage significance of the area concerned. That requires an assessment of the development within the Elizabeth Bay and Rushcutters Bay Heritage Conservation Area (HCA) and also The Bays locality as defined in the DCP. The assessment is guided by the locality statement within the DCP and in particular the heritage conservation area Statement of Significance and whether it responds sympathetically to those matters listed in clause 3.9.6(1) of the DCP. In addition, those matters listed in clause 3.9.7(3) of the DCP apply to alterations and additions to contributory buildings within the HCA.
Having regard to the evidence, I am not satisfied that the development proposed would satisfy those objectives, in particular I do not consider that the roofscape and detail of the building is compatible with the HCA nor does it respect the characteristic built form of the building. It does not retain the scale or roof form and it exceeds the ridge height in a location that is visible from the public domain. Whilst it is contemporary in detail, it will be visually prominent due to its siting at the front of the building.
Thirdly, I must have regard to the Design Excellence provisions in the LEP and I consider, for the reasons outlined above that the provisions outlined above that the provisions of clause 6.21(4)(iii) are not met.
Finally, I must have regard to the matters listed in s79C of the Environmental Planning and Assessment Act 1979 (EP&AAct) which include the relevant planning controls as outlined and considered above and the matters raised by objectors. In addition to the heritage concerns, I accept the evidence of the planners that the location of the proposed terrace is such that the separation distance sufficiently addresses privacy and acoustic concerns.
I do not consider Mr Smith’s suggested conversion of the study area to an enclosed verandah is appropriate given its shape, dimensions and the need to change windows that would also disrupt the fabric of the building. It does not receive appropriate solar access.
However, having regard to the suggested alternate of not extending the roof beyond the height of the existing ridge, I do consider such a proposal would be compatible with the HCA as it would respect and retain the characteristic roof form, retain the scale of the building without adding vertical additions and be consistent with other roof terraces within the locality. I would also satisfy those other relevant requirements under the LEP and DCP.
That is provided any sun shading is retractable and does not involve any structure above the height of the existing ridge line, it does not extend any further north that the proposed line of roof i.e. no further than 3.355m from the ridge and the area of the opening does not exceed the terrace area identified on the plans. Any attic store and stair (other than to achieve minimum door height) is to be contained within the existing roof line with no projections beyond that plane, other than the ‘ephemeral’ sunshade device and the glass balustrade. The existing roof structure is to be retained forward of the balustrade and the parapet is also to be retained.
Ms Duggan urged the Court adopt the ‘amber light’ approach in the event that the alternate proposal was found acceptable. I consider in the circumstances of the case that it is necessary that detailed plans are prepared that demonstrate the alternate design and reflect the preconditions prescribed above. The council should then prepare conditions of consent, generally in accordance with Exhibit 5 and appropriate to address those plans including a requirement that the shade structure is closed when the terrace is not in use and any lighting shall be designed to minimise light spill and external impacts.
On receipt of plans and consent conditions that reflect these findings there would be no reason why consent should not be granted.
The applicant is directed to prepare, file and serve amended plans that reflect the findings in [61-62] within 14 days of this judgment. On receipt of those plans the council is to prepare and file conditions of consent within 7 days. On receipt of the final plans and consent conditions final orders will be made in Chambers.

_____________________

Sue Morris

Commissioner of the Court

**********

Decision last updated: 29 January 2016

Medium Neutral Citation:	Benjamin v Sydney City Council [2015] NSWLEC 1568
Hearing dates:	26 November 2015
Decision date:	02 December 2015
Jurisdiction:	Class 1
Before:	Morris C
Decision:	See [65]
Catchwords:	DEVELOPMENT APPLICATION: rooftop terrace, impact on heritage conservation area
Legislation Cited:	Sydney Local Environmental Plan 2012; Environmental Planning and Assessment Act 1979
Cases Cited:	Anderson v City of Sydney Council No. 2 [2015] NSWLEC 1144
Texts Cited:	Sydney Development Control Plan 2012; Apartment Design Guide
Category:	Principal judgment
Parties:	Anthony John Benjamin (Applicant) Sydney City Council (Respondent)
Representation:	Counsel: Ms S Duggan SC (Applicant) Ms F Bergulund (Respondent) Solicitors: Ms D Slimnicanovski, Gadens (Applicant) Mr A Simpson, Sydney City Council (Respondent)
File Number(s):	10760 of 2015