Redfern Lynch Architects v Council of the City of Sydney

[2019] NSWLEC 1551

Land and Environment Court

New South Wales

Medium Neutral Citation:	Redfern Lynch Architects v Council of the City of Sydney [2019] NSWLEC 1551
Hearing dates:	4 November 2019
Date of orders:	14 November 2019
Decision date:	14 November 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1) The appeal is dismissed. (2) Development Application D/2018/1009 for alterations and additions to the existing dwelling including the construction of a second floor deck at 137 Riley Street, Darlinghurst, is refused. (3) The exhibits, other than Exhibits 1 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION – addition of a rear deck on the second floor of a terrace house – impact on the heritage significance of the heritage conservation area – impact on the amenity of the northern neighbour
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Local Environmental Plan 2012
Texts Cited:	Sydney Development Control Plan 2012
Category:	Principal judgment
Parties:	Redfern Lynch Architects (Applicant) Council of the City of Sydney (Respondent)
Representation:	Counsel: S Nash (Applicant) N Hammond (Respondent)   Solicitors: Bick & Steele (Applicant) Council of the City of Sydney (Respondent)
File Number(s):	2019/89595
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2018/1009 for alterations and additions to the existing dwelling including the construction of a second floor deck (the proposal) at 137 Riley Street, Darlinghurst (the site) by the Council of the City of Sydney (the Council).

2. Leave was granted by the Court on 30 July 2019 for the applicant to amend the application to rely on amended drawings.

Issues

3. The Council’s contentions can be summarised as:

• The proposed roof deck addition is unsympathetic to the built form of the existing terrace dwelling and is detrimental to the character and appearance of the terrace dwelling and the uniformity of the intact row of terraces adjacent with which it forms a group. The proposal is detrimental to the East Sydney Heritage Conservation Area.

• The proposal adversely impacts on the residential amenity of nearby dwelling as it increases the potential for overlooking and noise impacts, particularly to the rear outdoor living area and windows of 135 Riley Street to the north.

• The proposal does not demonstrate design excellence.

• The proposal is unwarranted.

• The solar diagrams do not illustrate existing and new shadows.

• The proposal is not in the public interest.

The site and its context

4. The site is on the western side of Riley Street, on the block bounded to the south by Seale Street and to the north by Francis Street.

5. The existing terrace house is an original two storey terrace with a first floor balcony between the party walls and a contemporary third storey partly concealed behind the parapet of the front façade, with a dormer window to the east and a shallow pitched roof to the west. The terrace house is the middle house in a group of three.

6. The terrace house has two storey secondary wing at the rear on the southern side of the site with a skillion roof falling to the north. The rear elevation of the secondary wing is a parapet with an intact chimney. The terrace house to the north has a similar secondary wing on the northern side of the site, creating the typical terrace light well between these two rear wings.

7. The terrace house has a deck at the rear of the secondary wing on the first floor and private open space in the rear yard.

The proposal

8. The proposal is to construct a deck 10.5sqm accessed from and to the rear of the contemporary third level, positioned over the skillion roof of the secondary wing. The deck is to have a 1.6m high privacy screen on the northern side. The deck floor sits above the skillion roof of the rear secondary wing and the new structure is to be integrated into the existing roof structure on posts projecting from the skillion roof below.

9. The purpose of the proposal is to create an outdoor area with solar access during the winter months.

Planning framework

10. The site is zoned R1 General Residential, pursuant to the Sydney Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the R1 zone, to which regard must be had, 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.

11. The site is within the East Sydney Heritage Conservation Area (East Sydney HCA) (Heritage Map - Sheet HER_015 of LEP 2012). The proposal requires consent pursuant to cl 5.10(2)(iii) and cl 5.10(4) requires the consent authority to consider the effect of the proposed development on the heritage significance of the area concerned, before granting consent under cl 5.10 in respect of a heritage conservation area.

12. The site is identified as “contributing” on the Buildings Contributions Map of the Sydney Development Control Plan 2012 (DCP 2012).

13. The site is within the area identified as “East Sydney” and DCP 2012 includes a Locality Statement for East Sydney. Development in East Sydney is to respond and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes. The remnant Victorian character of buildings is to be maintained and the uniformity of pairs and rows of consistent terraces is to be retained.

14. The objectives for Heritage at Section 3.9 of DCP 2012 are:

“(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.”

15. The relevant objective for balconies, verandas and decks at Section 4.1.8 of DCP 2012 is to ensure balconies, verandas and decks contribute to building design quality and respect the visual and acoustic privacy of neighbours.

Public submissions

16. One resident objector provided evidence at the commencement of the hearing onsite. As the adjoining neighbour, she is concerned that the proposal will compromise her visual and acoustic privacy and that the proposal adds bulk to the rear of the terrace house.

Expert evidence

17. The applicant relied on the expert evidence of Phillip Bull (planning), Paul Rappoport (heritage) and Carl Redfern (urban design). The Council relied on the expert evidence of Christopher Ashworth (planning), Tony Smith (heritage) and Julia Pressick (urban design). The experts were not required to give oral evidence. Their joint reports were admitted into evidence as Ex 3 (planning), Ex 4 (heritage) and Ex 5 (urban design).

Impact of the proposal on the heritage significance of the East Sydney HCA

18. The heritage experts agreed that the terrace house is correctly identified by DCP 2012 as contributing to the heritage significance of the East Sydney HCA.

19. According to Mr Rappoport, the rear of the row of terraces has already undergone significance change, thus making the rear of the row less cohesive than the front façades. Mr Rappoport notes that the rear of terraces undergoes a far greater rate of change compared with the front facade and the controls should not be so strict as to limit sundry innovative designs within a context of the heritage character of terraces. Mr Rappoport believes changes to the rear of terrace rows should be allowed especially where such changes are not visually apparent from street view. In his view, the proposal will not interfere with an understanding of its context and merely adds to the original historic form.

20. According to Mr Smith, some changes have occurred at the rear of the row, the first floor level and primary form of the rear skillion wings of the houses in the row is intact and should be conserved. The proposed deck requires the removal and replacement of the original roof fabric and structure as the existing structure cannot provide the necessary support. The proposed form of the deck and screens is above the existing roof and so changes the setting and views of the existing group of skillion wings. Continuing ad-hoc changes to surviving intact elements at the rear of terrace groups has a negative impact on their function, form and heritage significance. The rear wings comprise part of “the remnant Victorian character of the building” and so should be maintained. The repetition of uniform forms and features such as repeating rear, skillion-roofed wings and related rear chimneys derive from the original use of the buildings as naturally lit and ventilated buildings. When considering this row, it is reasonable to identify what original and significant fabric has survived and how best to conserve its character. The intrusion of the proposed deck into this intact area is a negative heritage impact and it is inconsistent with the controls.

21. In Mr Smith’s view, the proposal fails to complement the contributory building or the terrace row as it introduces a form that obscures the original rear form of the row and introduces a use that is inconsistent with the function and amenity of the row.

22. According to Mr Smith, the deck together with its privacy screening adds uncharacteristic bulk to the rear skillion wing of the building and reduces the prominence of the surviving rear chimney as it is of equal height to it. There are currently no decks of this type on the rear wings of any of the three houses in this row.

Consideration

23. The proposal has been designed solely to improve the amenity of the residents of the terrace house, to provide an outdoor deck area on the second floor leading from the main bedroom. The proposal has, however, had little regard to the established character and form of the terrace row.

24. I prefer and adopt Mr Smith’s evidence. The proposal is not a “change” to the rear of the terrace row. Instead it introduces an unsympathetic and uncharacteristic element that fails to respond to the constraints and opportunities created by the contributory terrace house and group of three. The form of the deck and its containment by the side screen has no relationship to the rear secondary wing, and sits uncomfortably over the wing on posts that protrude from the skillion roof. Changes already made to the rear secondary wings and the addition of the third level do not justify the addition of an uncharacteristic element that would detract from the overall form of the terrace house, including the deferential relationship of the rear secondary wing to the principal building form of the terrace house.

25. The floating box over the rear secondary wing will be readily apparent from the public domain when viewed from the lower section of Francis Street. The presence of the deck and screen over the rear secondary wing will detrimentally impact on the contribution made by the existing terrace house, including the rear secondary wing, to the heritage significance of the East Sydney HCA, because it is entirely contrary to the form and character of terraces and it will intrude on the established character of the East Sydney HCA.

Conclusion

26. I am satisfied that the Council’s contention that the proposed roof deck addition is unsympathetic to the built form of the existing terrace dwelling and is detrimental to the character and appearance of the terrace dwelling and the uniformity of the reasonably intact row of terraces adjacent with which it forms a group is made out by the evidence before me. The proposal will have a detrimental effect on the heritage significance of the East Sydney HCA and for this reason the appeal is dismissed. As this issue is determinative, there is no need to address the remainder of the Council’s contentions.

Orders

27. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application D/2018/1009 for alterations and additions to the existing dwelling including the construction of a second floor deck at 137 Riley Street, Darlinghurst, is refused.

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

____________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 15 November 2019