Kleinig v The Council of the City of Sydney

[2024] NSWLEC 1724

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kleinig v The Council of the City of Sydney [2024] NSWLEC 1724

Hearing dates:

5 August 2024

Date of orders:

08 November 2024

Decision date:

08 November 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) The exhibits, other than 2, 3, and B, are returned.

Catchwords:

APPEAL – development application – alterations and additions – attached residential dwelling – heritage conservation area – streetscape presentation – residential amenity – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021

Sydney Local Environmental Plan 2012, Div 4, Sch 5, Pts 1, 2, cll 2.2, 4.3, 4.4, 5.10, 6.21, 6.21C

Cases Cited:

Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (No 2) v Blacktown City Council [2019] NSWLEC 126

Moisidis v The Council of the City of Sydney [2023] NSWLEC 1218

Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117

Texts Cited:

National Construction Code Volume Two

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Andrew John Kleinig (First Applicant)
Ana Maria Ballesteros Giraldo (Second Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
F Berglund (Applicants)
A Singh (Solicitor) (Respondent)

Solicitors:
Ters Legal (Applicants)
The Council of the City of Sydney (Respondent)

File Number(s):

2023/245262

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Andrew John Kleinig and Ana Maria Ballesteros Giraldo (First and Second Applicant respectively - together the Applicants), against the refusal of Development Application D/2023/279 (the DA) by The Council of the City of Sydney (the Respondent).

2. The proposed development is situated at 33 Barcom Avenue, Darlinghurst on land legally described as Lot 21 in DP 31878 (the site).

3. At the date of its lodgment on 6 April 2023, the DA sought consent for proposed alterations and additions to the existing dwelling comprising:

1. Construction of a south-facing trafficable roof deck at the attic level with maximum dimensions of 3.3m by 3.9m, and a total trafficable area of 12.87sqm.

2. Installation of tinted glass balustrade measuring a maximum of 1.3m in height.

3. Installation of 2.2m wide, full height bi-folding glass doors serving the roof deck from the adjacent attic room.

4. Prior to the hearing, on 12 June 2024, the Court granted leave to the Applicant to amend the DA.

5. Then, at the commencement of the hearing on 5 August 2024, I granted leave to the Applicant to further amend the DA and rely upon final amended plans and documents. Leave was not opposed by the Respondent and the amendments are agreed to be minor in nature.

6. The final amended DA remains similar to the original DA - being for the construction of a trafficable roof deck - but incorporates a number of design changes intended to resolve, or reduce the number of, the Respondent’s contentions.

7. Notably, changes to reduce the extent of trafficable area have been made, limiting the proposed deck to 2.7m by 2.7m in size, with a total area of 7.29sqm.

8. Additionally, privacy screens are now proposed, extending to a height of 1.6m to the eastern and western sides of the deck, to be constructed of ‘timber look aluminium vertical battens’. A clear glazed balustrade is proposed to enclose the southern edge of the deck. Although not dimensioned in the plans, the balustrade appears to be approximately 1.1m in height.

9. Further details regarding drainage and the spatial relationship between the proposed deck and the existing roof have been provided.

10. The final amended architectural plans have been prepared by Urban Den Architects (marked as Revision E with a date of 17 July 2024). The architectural drawings form Exhibit B in these proceedings and are the subject of the appeal.

The site and its context

11. The site accommodates an existing two-storey attached terrace house, which forms one of a continuous row of twenty-eight similar attached terrace houses.

12. These twenty-eight terrace houses have an unusual relationship to the public domain and local street network. Although they enjoy a Barcom Avenue address, the combination of steep topography and deep set landscaped verge, or the presence of a second row of residential buildings, serve to reduce their physical and visual presence to the primary street address.

13. The sixteen easterly terrace houses (21-53 Barcom Avenue) address a narrow, pedestrian-only right of way to the south of these properties accessed behind the second row of dwellings which directly address Barcom Avenue.

14. The remaining twelve terrace houses to the west (55-77 Barcom Avenue) have a more conventional sense of street address, albeit set well back and above Barcom Avenue, behind a densely planted landscape verge.

15. All twenty-eight terrace house dwellings have a secondary, rear address to Womerah Lane, which has a service lane character, including some dwellings with vehicle garaging.

16. The subject site has a regular rectangular geometry, typical of inner-urban attached terrace house allotments. The site dimensions are approximately 4.45m by 32.32m.

17. The terrace house on the site was formally subdivided in 1989 (as Lots 1 and 2 in SP 35683) and now contains two strata dwellings, with one dwelling situated at the ground floor level, while the second dwelling is situated at the first floor level and attic space above.

18. The final amended DA relates to the upper dwelling and its associated attic room.

19. The site is not a listed heritage item, however it is formally identified as a ‘contributory building’ within the Sydney Development Control Plan 2012 (SDCP).

20. The site is further identified at Sch 5, Pt 2 of the Sydney Local Environmental Plan 2012 (SLEP) as being situated within the ‘Barcom Avenue’ Heritage Conservation Area (HCA) (Map reference C11).

21. The site is situated adjacent to several buildings identified as locally listed heritage items at Sch 5, Pt 1 of the SLEP, including the items at 23-47B Barcom Avenue collectively known as ‘Terrace group including interiors’ (Item no I1214).

22. These listed heritage items are situated to the east and south of the subject site and to some extent serve to physically and visually dislocate the subject terrace house from the primary Barcom Avenue streetscape.

23. I note at the outset that the streetscape qualities and heritage character of Barcom Avenue figures centrally in the dispute between the parties and I will return to this topic in due course.

The relevant planning controls

24. The key relevant statutory planning and development controls are as follows:

• EPA Act

• Environmental Planning and Assessment Regulation 2021 (EPA Reg)

• State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC)

• State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) (as saved)

• State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience)

• SLEP

• SDCP

25. Pursuant to cl 2.2 of the SLEP - Zoning of land to which the Plan applies - the site is mapped within the Zone R1 General Residential land use area. Development for the purposes of attached residential dwellings is permissible with consent.

26. Alterations and additions for the construction of a roof deck are permissible with consent.

27. Pursuant to cl 4.3 of the SLEP - Height of buildings - the site is mapped with a 12m maximum height of building development standard.

28. Pursuant to cl 4.4 of the SLEP - Floor space ratio (FSR) - the site is mapped with a FSR development standard of 1.5:1.

History of the DA

29. The Respondent’s Amended Statement of Facts and Contentions, dated 17 June 2024 and forming Exhibit 2 in these proceedings, sets out the history of the DA and relevant related development applications. A concise summary follows.

30. As noted earlier in this judgment at [17], the Respondent granted consent on 10 May 1989 to strata subdivide the terrace house into two dwellings.

31. The Respondent granted development consent to D/1992/1170 on 26 February 1993 to construct a timber deck and stairway serving the first floor.

32. The Respondent granted development consent to D/2022/731 on 8 February 2023 for alterations and additions including:

1. Internal reconfiguration of the first floor dwelling including removal of an internal wall and construction of new kitchen, dining room and bathroom.

2. A new attic level to form part of the upper dwelling, including new front and rear dormer roof extensions within the existing gable roof form.

3. An eastern extension to the existing north-facing deck serving the upper dwelling including new 1.6m high privacy screen.

4. New internal stairs to serve the attic addition.

5. A new car space to be accessed from Womerah Lane with a new roller garage door and pedestrian door at the Womerah Lane boundary.

33. Having visited the site at the commencement of the hearing, it appears that the deck and stairway approved under D/1992/1170 have been constructed and provide separate address and entry points for the two strata subdivided dwellings from the rear Womerah Lane.

34. It also appears that some of the works approved under D/2022/731 have been constructed, while others - notably the attic roof extensions and internal stair - presumably await the outcome of this dispute prior to their implementation.

35. The first floor deck (D/1992/1170) provides north-facing private open space to the upper dwelling and directly addresses the adjacent primary living and dining spaces within the dwelling.

36. The subject DA was lodged by the Applicant with the Respondent on 6 April 2023 seeking consent for a south-facing roof deck serving the attic level as noted above at [3].

37. The DA was publicly exhibited by the Respondent for fourteen days between 17 April 2023 and 2 May 2023. Two submissions were received by the Respondent raising issues including:

1. Acoustic disturbance.

2. Visual privacy impacts upon a neighbouring courtyard.

38. During the DA’s assessment, the Respondent visited the site on 27 April and 29 June 2023.

39. The DA was refused by the Respondent on 4 July 2023 for reasons summarised as:

1. A non-compliant roof deck form.

2. Failure to exhibit design excellence.

3. Unacceptable heritage impacts.

4. Unacceptable amenity issues.

40. On 2 August 2023, the Applicant appealed to the Court against the Respondent’s refusal of the DA.

41. As noted at [4], on 12 June 2024 the Court granted leave to the Applicant to amend the DA.

42. At the commencement of the hearing, on 5 August 2024 I granted leave to the Applicant to further amend the DA and rely upon final amended plans and documents. These final amendments were not opposed by the Respondent and are agreed to be minor in nature.

43. The features of the final amended DA (Exhibit B), proposing alterations and additions to the existing dwelling, comprise the:

1. Construction of a south-facing trafficable roof deck at the attic level with maximum dimensions of 2.7m by 2.7m, and a total trafficable area of 7.29sqm.

2. Installation of privacy screens extending to a height of 1.6m to the eastern and western sides of the deck, to be constructed of ‘timber look aluminium vertical battens’.

3. Installation of a clear glazed balustrade approximately 1.1m in height to enclose the southern edge of the deck.

4. Details indicating drainage and the relationship between the proposed deck and the existing roof sheeting below.

5. Installation of 2.2m wide, full height bi-folding glass doors serving the roof deck from the adjacent attic room.

The issues

44. The contentions pressed by the Respondent are found in the amended statement of facts and contentions dated 17 June 2024 (Exhibit 2 in these proceedings). These contentions are summarised below:

1. Impacts on the HCA - the final amended DA results in unacceptable heritage impacts upon the existing contributory building on the site and the Barcom Avenue HCA.

2. Amenity - the final amended DA does not ensure high quality residential amenity for the neighbouring dwellings.

3. Design Excellence - the final amended DA does not exhibit design excellence as required by cl 6.21C of the SLEP.

4. Public Interest - the final amended DA is not in the public interest for the reasons set out above.

45. Recognising that the final amended DA (Exhibit B) was tendered by the Applicant at the commencement of the hearing, in his opening submissions for the Respondent, Mr Singh confirmed that each of the contentions remain pressed, although a number have narrowed by virtue of the provision of additional information.

46. At its essence then, this matter can be reduced to a series of three related questions regarding the merits of the proposal:

1. Heritage and streetscape impacts - whether the proposed roof deck, given its form, scale and degree of enclosure, will have an unacceptable negative impact on the significance of the Barcom Avenue HCA and adversely impair the character of local streetscapes.

2. Impacts upon neighbours - whether the proposed roof deck, given its elevated location and proximity to side boundaries, will have an unacceptable negative effect on the visual and acoustic privacy of immediate neighbouring properties.

3. Design excellence - whether the proposed roof deck, given its proposed use, scale, form, materials and architectural detailing, exhibits design excellence appropriate to the building type and location.

47. If the Court were satisfied of each of these three questions, then the parties generally agree that the contention regarding public interest would fall away, and also that the final amended DA is otherwise in a form that would allow for the lawful grant of consent.

The evidence

The expert planning and heritage evidence

48. The Court was assisted by experts in planning and heritage who conferred to prepare a joint report. The experts are Mr Daniel Barber (planner) and Mr Paul Rappoport (heritage expert) for the Applicant, and Ms Veronique Hoffman (planner) and Mr Anthony Smith (heritage expert) for the Respondent. Their joint expert report forms Exhibit 3 in these proceedings.

49. Over the following paragraphs, I have sought to distill the various experts’ joint report and oral evidence to its key components, organised against the three central questions in this dispute - being heritage and streetscape impacts, impacts upon neighbours and design excellence.

Heritage and streetscape impacts - Contention 1

50. At pars 19-29 of the joint report, Mr Rappoport addresses the heritage and streetscape issues for the Applicant and sets out his view in support of the final amended DA as follows:

1. The relevant controls of the SDCP warrant relaxation given the unusual local context and because the proposed roof deck will be largely imperceptible from vantage points within the public domain.

2. The low visibility of the proposal mitigates against any negative heritage impacts.

3. The proposed roof deck provides improved residential amenity and utility for the subject dwelling at a moment in history where Sydney is experiencing a ‘housing crisis’.

4. Although the proposed roof deck and privacy screens would be visible from a small number of public vantage points, the discreet nature of the development ‘cannot have any impact on the character of the HCA due to its remoteness.’

5. Other relatively recent roof form alterations are evident within the immediate local context, and for similar reasons of their low visual impact, have not impaired the streetscape or heritage values associated with the HCA.

51. For the Respondent, Mr Smith addresses the perceived heritage and streetscape deficiencies of the final amended DA at pars 30-36 of the joint report, summarised as follows:

1. The site forms one of the largest rows of continuous terrace houses within the City of Sydney. Nearby on Womerah Avenue is a second, similar long row of terrace houses.

2. Making these two long rows of terrace houses distinctive is an ‘overlay of front and rear additions that were added to the properties in the interwar period.’

3. The resultant roofscape, comprising gables, chimneys and shallow-pitched interwar additions, is particular and characteristic of the area.

4. Today, this roofscape is largely conserved, with some dwellings in the row having added skylights, dormer windows and rear roof extensions to the original gabled roofs.

5. Despite two uncharacteristic roof decks (at 47 and 61 Barcom Avenue), the general character of the various roofs is ‘substantially intact in their original form’.

6. The two uncharacteristic roof decks (47 and 61 Barcom Avenue) ‘have an unacceptable impact on the fabric and character of the roofscape.’

7. The proposed roof deck at the subject property (with its prominent privacy screens comprising uncharacteristic materials), represents a further unacceptable erosion of the character of the roofscape evident in these two long rows of terrace houses, and gives rise to unacceptable heritage impacts.

52. In his oral evidence, Mr Smith was asked whether design changes incorporated within the final amended DA went any way towards resolving his concerns. In reply, Mr Smith noted the following:

1. The earlier structural clash between the deck structure and existing roof fabric has been resolved by lifting the deck level to float above the existing shallow skillion roof.

2. However, this has the undesirable effect of also lifting (and increasing) the bulk of the proposed roof deck and its associated privacy screen.

3. Accounting for the reduced height of the proposed privacy screen (from 1.7m to 1.6m), the lifting of the deck level nonetheless results in a net increase in the overall height of the proposal of 470mm, relative to the earlier amended DA.

4. The elevated deck level introduces two steps up from the adjacent attic floor level - each 210mm in height - compromising its utility and potentially its consistency with the National Construction Code Volume Two (NCC), which generally limits stair risers to 190mm in height.

5. The amended roof deck drainage pipe appears to be of an inadequate diameter.

6. The physical means of connection and support between the roof deck and the existing roof have not been fully resolved.

7. The frameless cantilevered glass balustrade appears not to have the necessary moment joint to ensure its structural adequacy.

53. When the same general questions were put to Mr Rappoport, he stated that the final amended DA adequately demonstrates that:

1. No demolition of the existing skillion roof form is necessary.

2. The proposed roof drainage is capable of resolution when pipe and spreader dimensions are confirmed.

3. The proposed structural design and architectural detailing are suitably resolved for the purposes of a DA and would be subject to a future Construction Certificate confirming such details.

54. Under cross examination, Mr Smith accepted that the final amended DA was not highly visible from public vantage points and therefore any impacts upon heritage significance would be less perceptible.

55. However, in his opinion ‘maintaining the existing overall form’ of the terrace houses is critical, and it is this coherence of building form which is ‘fundamental to the significance’ of the terrace house row and its contribution to the Barcom Avenue HCA.

56. Mr Smith elaborated to explain that generally, alterations and additions to create an attic room with the introduction of openable skylights are acceptable, but the proposed form of the roof deck impairs the legibility and form of the otherwise reasonably intact roofscape.

57. For his part in oral evidence, Mr Rappoport reinforced his position that in the context of the Barcom Avenue HCA, involving an ‘average example of a contributory building’ (rather than a listed heritage item), ‘if it [the proposal] can’t be seen, then it doesn’t matter.’

54. He was critical of what he described as the Respondent’s ‘focus on aesthetic’ factors which are ‘almost inconsequential’.

55. Finally, Mr Rappoport characterised the final amended DA as a ‘small ask’ that would significantly improve the amenity provided by the dwelling, given the outlook the deck would provide to the occupants.

Impacts upon neighbours - Contention 2

60. At pars 38-45 of the joint report, Mr Barber and Mr Rappoport address the amenity impacts in support of the final amended DA as follows:

1. The proposal is compliant with relevant controls set out in the SDCP dealing with residential amenity, and does not result in any direct overlooking, adverse acoustic impacts, adverse overshadowing impacts, visual impact or loss of significant views.

2. The introduction of a 1.7m privacy screen (subsequently amended to 1.6m in height) is proposed specifically to resolve the Respondent’s contention regarding cross viewing across side boundaries.

3. The privacy screens are proposed of 'carefully selected material’ to ‘respect the heritage significance of the site’.

4. The deck is sited approximately 900mm from the side boundaries and approximately 2.2m from the southern Barcom Avenue boundary in order to reduce its visibility from vantage points in the public domain.

5. The visibility of the proposed roof deck is reduced to the extent that it is ‘not considered to have a significant impact upon the significance of the Heritage Conservation Area or Darlinghurst East locality.’

6. The proposed roof deck brings with it only minor overshadowing impacts to the subject property’s own roof and the roofs of immediate neighbours. No private open space or living rooms are overshadowed.

7. Given the proposed roof deck is of a limited size and accessed from the third storey attic room, it is unlikely to attract a high intensity of utilisation and therefore is considered to generate low acoustic impacts.

61. At pars 46-52 of the joint report, Ms Hoffman sets out her evidence for the Respondent as follows:

1. The provision at 4.1.8.1 of the SDCP notes that ‘decks above the ground floor are to be avoided’. In her opinion, this means that above ground decks should only be considered in ‘exceptional circumstances’, such as where it is not possible to accommodate a principal private open space elsewhere within the site.

2. Given that the upper dwelling at the subject site already has a principal private open space, meeting the relevant requirements set out in the SDCP, a departure from 4.1.8.1 is not warranted.

3. The construction of an elevated roof deck introduces some measure of visual and acoustic impact upon neighbouring terrace houses where this would not otherwise exist, and therefore is inconsistent with the objectives of provisions 4.1.3 and 4.1.8 of the SDCP.

4. Although the proposed privacy screens work to mitigate against visual privacy impacts, these also exacerbate impacts of bulk and scale.

5. Although the proposed roof deck is not highly visible, ‘it will still be discernible from some areas the public domain such as McLachlan Way and from neighbouring properties.'

62. Mr Smith goes further at pars 53-58, noting:

1. The traditional form of the terrace houses and their roofscape afford equivalent levels of amenity to each occupant of dwellings in the row.

2. The SDCP contemplates roof dormers and roof extensions (such as that approved under D/2022/731 at the subject dwelling).

3. The benefits of such dormers or roof extensions include providing increased amenity, outlook and views from attic spaces, and the ability to improve natural ventilation and solar access, all whilst maintaining an equivalent level of amenity - particularly privacy - to each neighbouring terrace house.

4. The introduction of a roof deck is an uncharacteristic element and a source of cross viewing or noise.

5. The proposed privacy screen, which seeks to mitigate against these visual impacts, gives rise to other undesirable impacts including heritage streetscape and visual impacts, and also the prospect of diminishing the outlook available from neighbouring terrace houses should they seek approval for similar dormers or roof extensions.

6. The open battened privacy screens do little to mitigate against acoustic impacts.

63. In her oral evidence, Ms Hoffman confirmed that the final amended DA had no material effect on her views already set out in the joint report. She also accepted that the overshadowing diagrams provided with the final amended DA demonstrate only minimal impacts upon affected neighbours.

Design excellence - Contention 3

64. At pars 60-63 of the joint report, Mr Barber and Mr Rappoport address the question of design excellence, noting that in their view the proposed roof deck exhibits the necessary level of design excellence for the following reasons:

1. The proposed roof deck incorporates ‘timber look aluminium vertical battens’ which have been specified consistent with expert heritage advice ‘to harmonise with the heritage context’.

2. The roof deck is not considered to create an undesirable precedent since any other proposal would be assessed on its merits, and since a number of other roof decks already exist in the immediate vicinity (at 17, 47 and 61 Barcom Avenue).

3. The proposal is not readily discernible from vantage points within the public domain.

65. At pars 64-69 of the joint report, Ms Hoffman states:

1. The test of design excellence is set by cl 6.21(1) of the SLEP and calls for ‘the highest standard of architectural, urban and landscape design.’

2. In considering whether the final amended DA exhibits design excellence, cl 6.21C(2)(d)(v) requires the consent authority to have regard to ‘the bulk, massing and modulation of buildings’.

3. The proposed roof deck results in increased bulk and alters the terrace row’s roof form.

4. The SDPC provides specific criteria for the design and siting of habitable attics and roof extensions.

5. An observable pattern exists along the row of terrace houses, of recent roof form alterations and additions being set back from the southern Barcom Avenue boundary to form a consistent alignment.

6. The proposed roof deck is not consistent with this established alignment at attic level and results in building bulk being situated in an ‘undesirable location.’

66. Finally, at pars 70-74, Mr Smith raises a series of matters that in his view further diminish the proposed roof deck’s merits in terms of design excellence. These matters include:

1. Residual concerns that the proposed roof deck is not accompanied by a resolved structural design, which creates a risk for the need to demolish some extent of the existing roof.

2. The means of support for the additional load created by the roof deck has not been resolved and needs to ensure the structural adequacy of the neighbouring terrace houses is maintained (given the presence of party walls).

3. The absence of a resolved drainage design for the roof deck risks the weather integrity of the subject terrace house and its immediate neighbours.

4. The proposed cantilevered glass balustrade and timber look aluminium battened privacy screens ‘do not have an appropriate material or formal relationship with the significant fabric of the existing building.’

Findings

67. I now move to dismiss the appeal. In deciding this course, I set out my reasons over the following paragraphs.

68. It is useful to restate that this dispute can be reduced to three related questions:

1. Heritage and streetscape impacts - whether the proposed roof deck, given its form, scale and degree of enclosure, will have an unacceptable negative impact on the significance of the Barcom Avenue HCA and adversely impair the character of local streetscapes.

2. Impacts upon neighbours - whether the proposed roof deck, given its elevated location and proximity to side boundaries, will have an unacceptable negative effect on the visual and acoustic privacy of immediate neighbouring properties.

3. Design excellence - whether the proposed roof deck, given its proposed use, scale, form, materials and architectural detailing, exhibits design excellence appropriate to the building type and location.

69. If each of these questions were answered in favour of the Applicant, then I would then be satisfied that the final amended DA is in a form, and accompanied by the necessary supporting information, that would allow for the lawful grant of consent.

70. As it is however, I find that the final amended DA falls short of each of the merit tests for heritage impacts and streetscape presentation (Contention 1), for amenity impacts upon the neighbouring dwellings (Contention 2), and falls short of exhibiting design excellence appropriate to the building type and location (Contention 3).

71. Consequently, the appeal must be dismissed and I deal with each of these three tests in turn.

Heritage and streetscape impacts

72. In her closing submissions for the Applicant, Ms Berglund made the case that any impacts upon the streetscape and the Barcom Avenue HCA are ‘indiscernible’ given that the public vantage points - although they exist - are limited in number.

73. She went on to note Mr Rappoport’s expert evidence where he stated there are no impacts on the HCA.

74. Further, Ms Berglund noted that there are three existing roof decks in the immediate context, at 17, 47 and 61 Barcom Avenue. In her submissions, she stated that each of these roof decks is more visually prominent than that proposed at the subject site.

75. It is agreed between the parties that these three existing roof decks each bring with them some controversy as noted below:

1. At 17 Barcom Avenue - no record of development consent is in evidence and the Respondent states it currently has no intention of commencing enforcement action to deal with the unlawful works.

2. At 47 Barcom Avenue - similarly, there is no record of development consent and the Respondent states it currently has no intention of commencing enforcement action to deal with the unlawful works.

3. At 61 Barcom Avenue - although some evidence exists of a historical development consent, this appears to have lapsed prior to its construction and the deck may be unlawful.

76. Ms Berglund submitted that since these decks exist, they necessarily contribute to the character of the local area, and each tends to be more visually prominent than the proposed roof deck.

77. It follows, in Ms Berglund’s submissions, that the prospect of a fourth, more discreet, roof deck could not materially diminish the heritage values of the HCA.

78. In his closing submissions for the Respondent, Mr Singh highlighted Mr Smith’s evidence that these existing roof decks already have an 'an unacceptable impact on the fabric and character of the roofscape.’

79. On this question of heritage and streetscape impacts, I find that the final amended DA does represent an unacceptable heritage impact and unreasonably diminishes the heritage values of the Barcom Avenue HCA.

80. Specifically, pursuant to cl 5.10(4) of the SLEP, when considering the effect of the final amended DA on the heritage significance of the HCA, I am not satisfied that the proposal conserves the heritage significance of the HCA, including associated settings and views.

81. In making this finding, I generally prefer the evidence of Mr Smith and accept that the proposed form of the roof deck serves to unreasonably disrupt the prevailing roof form otherwise evident along the row of twenty-eight terrace houses in the HCA.

82. This disruption is attributable primarily to the privacy screens and balustrade necessary to create a safe and amenable level of enclosure in this elevated location.

83. By proposing to situate the roof deck form beyond the established line of dormers and roof extensions - which are an identifiable component of the existing roofscape - the final amended DA goes too far.

84. I am not persuaded that the existence of the other existing roof decks at 17, 47 and 61 Barcom Avenue (whether lawfully constructed or not) go any way to ameliorating the heritage impacts created by the final amended DA.

85. In terms of streetscape impacts, I accept these are more marginal given the limited number of vantage points within the public domain where the proposal presents itself.

86. However, the limited visibility of a proposed development does not necessarily forgive its form or impact - and on the question of heritage impacts, Mr Singh submitted that an earlier decision of mine in Moisidis v The Council of the City of Sydney [2023] NSWLEC 1218 (Moisidis) maintains particular relevance.

87. Accordingly, and consistent with the decision I made in Moisidis, I find that heritage significance and heritage impacts may exist whether or not they are visible from the public domain.

Impacts upon neighbours

88. This question is less clear cut, and the dispute may have turned differently had the question of heritage impacts not been quite so pronounced.

89. In her closing submissions, Ms Berglund noted - and I accept - that the privacy concerns initially raised by the Respondent are resolved by the introduction of the proposed privacy screens. Albeit, I have found that the form of these screens create other undesirable impacts as noted earlier in this judgment.

90. I am satisfied that concerns for undesirable acoustic privacy impacts are adequately mitigated, recognising that the proposed roof deck is of limited size, accessed from a third level attic room, and seeks to provide a secondary private open space located away from the principal north-facing private open space that serves the dwelling directly from its adjacent kitchen, living and dining spaces.

91. I am satisfied that the proposed roof deck would not attract significant congregation and is likely to be compatible with the typical levels of residential acoustic amenity enjoyed in the wider terrace row.

92. I am satisfied that overshadowing impacts arising from the final amended DA are minor in nature not material to this matter.

93. However, I find that the form of the proposed roof deck - again due to the uncharacteristic forward position of the deck and its associated privacy screens - brings impacts that would unreasonably diminish the amenity and outlook available to the two immediate neighbouring dwellings in a development scenario where they sought consent for a SDCP-compliant dormer or roof extension.

94. Effectively, the forward siting of the proposed roof deck and its associated privacy screens would constrain the available outlook for a compliant neighbouring roof dormer or roof extension.

95. In this, I accept the evidence of Mr Smith, particularly at par 54 of the joint report, where he states:

“A key feature of both traditional dormers and [S]DCP rear roof extensions is that they offer natural light and ventilation to attic spaces and outlook for the attic occupants over their retained roofscape and that of their neighbours. In the form prescribed by the [S]DCP, they are not subject to overlooking or from sources of noise…as they are surrounded by roof.

This affords privacy, the ability to leave windows open for ventilation and window coverings open to admit full sunlight when desired. It also means that a neighbouring house in the group can add similar elements in line with the [S]DCP and be afforded equal amenity.

The broad district views to southeast would be…available from existing and future east facing roof extension[s] in this terrace group and would be enjoyed equally by the occupants of each house.”

Design excellence

96. On this third question, it is useful to begin with the jurisdictional test established by Div 4 - Design Excellence - of the SLEP.

97. The objective of Div 4 is set out at cl 6.21, which states:

The objective of this Division is to deliver the highest standard of architectural, urban and landscape design.

98. Then, at cl 6.21C(1), the SLEP requires that prior to the grant of development consent, the consent authority (the Court in this instance) must form an opinion of satisfaction that the proposed development exhibits design excellence.

99. Clause 6.21C(2) then lists matters which the consent authority must have regard to as it considers whether a proposed development exhibits design excellence. These matters are:

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain,

(c) whether the proposed development detrimentally impacts on view corridors,

(d) how the proposed development addresses the following matters—

(i) the suitability of the land for development,

(ii) the existing and proposed uses and use mix,

(iii) any heritage issues and streetscape constraints,

(iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers, existing or proposed, on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v) the bulk, massing and modulation of buildings,

(vi) street frontage heights,

(vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity,

(viii) the achievement of the principles of ecologically sustainable development,

(ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network,

(x) the impact on, and any proposed improvements to, the public domain,

(xi) the impact on any special character area,

(xii) achieving appropriate interfaces at ground level between the building and the public domain,

(xiii) excellence and integration of landscape design.

100. The parties each made submissions on the proper approach to applying this jurisdictional test, with both Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (No 2) v Blacktown City Council [2019] NSWLEC 126 (Madss) and Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 (Toga) figuring in submissions.

101. The decisions of Madss and Toga serve to establish that, in forming the necessary view of satisfaction required by to cl 6.21C(1) of the SLEP, the consent authority (the Court) must consider each of the relevant matters set out in cl 6.21C(2), which I have now done.

102. Mr Singh made further submissions regarding Madss and Toga, effectively narrowing the matters of relevance at cl 6.21C(2) to those where the experts’ evidence is in dispute.

103. I accept that the relevant jurisdictional test may usefully be limited to the matters identified at cl 6.21C(2) which remain in dispute, specifically the following:

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

…

(d) how the proposed development addresses the following matters—

(iii) any heritage issues and streetscape constraints,

…

(v) the bulk, massing and modulation of buildings,

…

(vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity,

…

104. I find that of these disputed matters, the final amended DA falls short of exhibiting design excellence primarily for the reason of its unacceptable heritage impact, which would diminish the heritage values of the Barcom Avenue HCA. This is discussed at [72]-[87] above and reflects the test at cl 6.21C(2)(d)(iii) of the SLEP.

105. The final amended DA also falls short of the test at cl 6.21C(2)(d)(v), given that it is the bulk, form and siting of the proposed roof deck that gives rise to both heritage impacts and also the amenity impacts discussed at [93]-[95] above.

Disposing of the matter

106. I now move to dispose of the matter.

107. In doing so, I briefly remark that having carefully considered the issues in this dispute, it strikes me that the Applicant’s ambition for a secondary private open space is not inherently unrealistic.

108. The issue of heritage impacts might be characterised as one of degree, and I have found that the final amended DA - although reduced in size and impacts - still sought to go too far.

106. Noting the central tension in this dispute, and ultimately the determinative factor, has been the form, scale and location of the proposed deck, I suspect that a more modest, shallow ‘Juliet balcony’, sited within the approved roof extension (D/2022/731) might have been an acceptable compromise.

107. Of course, in the context of a contested hearing, compromise is not readily available to the parties and I have no way on knowing whether such a compromise might be attractive to either the Applicant or the Respondent. Rather, I offer these remarks from the neutral position of an independent decision maker.

108. In disposing of the appeal, I note this decision involves the Court exercising the function under s 4.16(1)(a) of the EPA Act to determine the final amended DA by way of refusal.

Orders

112. The Court orders that:

1. The appeal is dismissed.

2. The exhibits, other than 2, 3, and B, are returned.

M Pullinger

Acting Commissioner of the Court

**********

Amendments

20 November 2024 - Amendments made to paragraph formatting at [99] and [103].

Decision last updated: 20 November 2024