Simpson v Council of the City of Sydney

[2016] NSWLEC 1106

Land and Environment Court

New South Wales

Medium Neutral Citation:	Simpson v Council of the City of Sydney [2016] NSWLEC 1106
Hearing dates:	15 March 2016
Date of orders:	30 March 2016
Decision date:	30 March 2016
Jurisdiction:	Class 1
Before:	Smithson AC
Decision:	1. The Appeal is dismissed. 2. Development Application D/204/1516 for a new dormer window at 67 Victoria Street, Potts Point is refused. 3. The exhibits are returned with the exception of Exhibits 1, 2 and C.
Catchwords:	DEVELOPMENT APPLICATION: replacement of dormer window, heritage item, conservation area, contributory building, amenity of attic
Legislation Cited:	Environmental Planning and Assessment Act 1979 City of Sydney Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Roger Simpson (Applicant) Council of the City of Sydney (Respondent)
Representation:	Counsel: Ms J Reid (Respondent)   Solicitors: Mr Perkins, Project Lawyers (Applicant) Mr Canning, Council of the City of Sydney (Respondent)
File Number(s):	10601 of 2015
Publication restriction:	No

Judgment

1. ACTING COMMISSIONER: This is an appeal under s 97 (1) of the Environmental Planning and Assessment Act against refusal by the City of Sydney Council (the Council) of Development Application D/2014/1516 for alterations and additions to an existing terrace situated at 67 Victoria Street, Potts Point (the site).

2. The proposal initially involved alterations at the rear roof of the terrace, namely demolition of an existing rear dormer window at the fourth (top) level of the terrace and its replacement with a rear roof terrace and new skylight. The applicant proposed the works to increase solar access and ventilation to an office situated in an attic on the fourth level.

3. The appeal was subject to a conciliation conference under s34 which was terminated. Arising from the conference, the applicant prepared an amended proposal and was granted leave by the Court to rely on the amended plans for the hearing. The amendments propose deletion of the skylight and deck and creation of a new ‘eyelid dormer’ window with vertically proportioned casement windows situated under the existing ridge line.

4. The site is zoned General Residential R1 under the LEP 2012 and the proposed use is permissible in the zone.

5. The site is located in the Potts Point locality area as delineated in the City of Sydney Development Control Plan 2012 (the DCP). Part 2.4.4 of the DCP contains a locality statement for the Potts Point locality which has a requirement for buildings to the west of Macleay Street (which includes the subject site) to be maintained and respected. One of the principles of the locality statement is that development is to respond to and compliment heritage items and contributory buildings within the heritage conservation area.

6. The Council refused the application primarily on heritage grounds arguing that the proposal failed to comply not only with the locality character statement and design principles of part 2.4.4 of the DCP but with the objectives and / or controls of:

• LEP clause 5.10 Heritage conservation

• LEP clause 6.21 Design excellence

• DCP part 3.9 of section 3 Heritage

• DCP part 4.1.4 of section 4 Additions and alterations

• DCP part 4.1.5 of section 4 Roof alterations and additions.

7. In essence, the Council argued that the terrace group in which the terrace is situated is an important heritage item and the proposed works would significantly and adversely impact that item. The Council also raised concerns with potential for privacy impacts and non-compliances in terms of design excellence provisions, height and FSR, but these were minor matters relative to the heritage considerations.

8. The applicant argued that heritage conservation did not preclude change and that the change was warranted due to the circumstances of the case, namely the amenity for occupants of the terrace.

9. Expert evidence on heritage matters was provided to the Court by Mr James Phillips for the applicant and Ms Jennifer Hill for the Council.

The site in context

10. The subject terrace is one of a series of five adjoining historic terraces known as Hortonbridge Terrace extending from 61 to 69 Victoria Street. Hortonbridge Terrace is listed as a group in the City of Sydney Local Environmental Plan 2012 (the LEP) as a local heritage item, and it is located within the Potts Point heritage conservation area (HCA). Hortonbridge Terrace is specifically identified as a contributory building within the HCA.

11. Contributory buildings are defined in the DCP at section 3, part 3.9.7 as buildings that make an important and significant contribution to a HCA being, in this instance, a building from a significant historical period which is highly or substantially intact.

12. To the rear of the site is a residential flat building at 71 Victoria Street constructed in the mid-1980s with 10-20 storey towers.

Heritage Considerations

13. One of the aims of the LEP at clause 1.2 (k) and repeated at clause 5.10(1)(a) is to conserve the environmental heritage of the City of Sydney. At 5.10(1)(b) a further objective is to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views.

14. The Court's attention was drawn by the Council to the requirements of the LEP at cl 5.10(4) that the Court must, before granting consent in respect of a heritage item or within a heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned.

15. In the Heritage Experts Joint Report (the Joint Report), Ms Hill outlines the historic significance of the Hortonbridge Terrace building which, in part, is as follows:

Speculatively built in 1885, Hortonbridge Terrace has the ability to demonstrate the early development of Potts Point through the building of terrace houses for the middle and working classes from the 1880s. Proposed for demolition in 1971,… , the terrace group also has historic significance as the subject of the 1970s green bans, and representative of the twentieth century history of resident activism and the heritage conservation movement. The Victoria Street terraces have a special historical association with the local resident action group mobilised by Juanita Nielsen whose efforts prevented their demolition in the 1970s. The Victoria Street group are aesthetically significant as a fine and substantial group of late Victorian Italianate terrace. The terrace group is prominently sited on Darlinghurst Ridge….

16. The proposed development demolishes a Victorian period roof feature (a rear circular dormer window) which is a feature across the five terraces in the group and is consistent to front and rear elevations.

17. General provisions for heritage conservation are found in the DCP in section 3 at 3.9 Heritage where it is stated that heritage planning aims to ensure that the significant elements of the past are appropriately managed and respected by new development.

18. The introduction to this section of the DCP states as follows:

These provisions are based on the underlying principles that:

● Change should be based on an understanding of heritage significance; and

● The level of change should respect the heritage significance of the item or

area.

The intention of these provisions is to ensure that decisions about change are made with due regard to heritage significance, and that opportunities to improve the understanding and appreciation of this significance are taken.

19. The heritage experts agreed that the existing building presents a consistent and strongly cohesive Victorian streetscape. Also that all terraces in the row contain matching front and rear dormer windows, which appear to be an original / early feature of the row and that the proposal replaces a traditional dormer that is a consistent feature of the group.

20. The experts disagreed on whether the proposal impacted the heritage significance of the building to the extent warranting refusal.

21. The Council’s DCP contains an Inventory Sheet for Hortonbridge Terrace referred to in the Joint Report and an extract from the listings sheet of the NSW Office of Environment and Heritage (OEH) which notes that the Potts Point HCA is characterised by terraces of late nineteenth and early twentieth century interspaced with early to mid twentieth century apartment housing and several surviving grand houses. Together with adjoining Elizabeth Bay and Rushcutters Bay, nowhere else in Australia were apartments built to this height or level of density. This creates streetscapes of strong urban form and Victorian, Federation and inter war character...Despite the intrusive nature of high rise towers, ... the area provides a highly cohesive character.

22. The Inventory Sheet includes recommended management policies. Relevant to this appeal are the following extracts from this document for Hortonbridge Terrace:

The building should be retained and conserved.

A Heritage Assessment and Heritage Impact Statement or a Conservation Management Plan should be prepared for the building prior to any major works being undertaken.

There shall be no vertical additions to the building 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.

23. Ms Hill argued that the proposal presents an incongruous addition to the rear roof that does not respect or respond to the heritage significance of the building and heritage row. She was strongly of the view that the proposed eyelid dormer will interrupt the consistent roof form contrary to the objectives of cl 5.10 of the LEP in that the proposal does not conserve the heritage significance of the heritage item or the heritage conservation area including associated fabric, settings and views.

24. In particular, Ms Hill was concerned that the proposed window did not respect and protect the traditional character and heritage significance of the item and the area and of a contributory building, in terms of minimising alteration of the original building, respecting the uniformity of a relatively intact row of buildings and conserving what remains.

25. The Council argued that, at section 4, part 4.1.5 dealing with roof alterations, the DCP requires roof alterations and additions which ensure that works minimise interference to the original form of buildings and their elements, whereas the proposal was removing one such element and introducing a foreign element to the roof form. This was compounded by the fact that the proposed window was wider than the existing window, three times wider than the recommended width in the controls and would disrupt the repetitive form of the existing row of dormers. In her view, there were other, better ways that the occupant’s amenity could be improved.

26. Mr Phillips argued that the key element of the building was its front façade and streetscape presentation to Victoria Street and that this was not being altered by the development. Further, that the rear elevation had already been compromised by past alterations and the amenity of the occupants of the terrace was non-existent with a rear garden in the basement and the overwhelming nature of the close towers at the rear.

27. The applicant further claimed that the proposal minimised the extent of change to the building and didn’t change the roof form, slope or pitch noting that part 4.1.5 emphasises there must be a ‘significant’ impact – ie. consider ‘significant’ views to and from the property and changes to ‘significant’ fabric, elements or spaces, arguing the proposal did not meet the ‘significant’ impact test.

28. Mr Phillips also considered that the alternative options proposed by the Council which retained the curved dormer form would result in a narrow and cumbersome outcome impacting lower levels of the terrace.

29. As part 4.1.5 was referred to extensively by both the applicant and the Council, relevant sections of the provision are reproduced below:

4.1.5 Roof alterations and additions

Roof additions include rear roof extensions and dormer windows. Roof additions should be designed to permit the original roof form, slope and ridge of the building to be easily discerned, and should not overwhelm the integrity of a contributory building.

Objectives

(a) Minimise the impact of dormers and skylights on the form, appearance and fabric of the principal roof form.

(b) Ensure dormers to Victorian and Federation period terraces are traditional in form, proportions, scale and material.

(c) Minimise interference to the original form of the building.

(d) Minimise the impact on original and existing building elements.

(e) Retain original roofing materials on heritage items and contributory and neutral buildings in heritage conservation areas.

4.1.5.1 Ensuring sympathetic roof alterations and additions

(1) Roof alterations and additions must:

(a) complement the details and materials of the original roof;

(b) not detract from the architectural integrity of the principal elevation of a heritage item, contributory building, or an intact group of buildings in a heritage conservation area; and

(c) respect the form, pitch, eaves and ridge heights of the original building.

(2) Roof additions are to be set below the ridge line to allow the original form of the main roof to be clearly discerned.

4.1.5.2 Roof features

(1) On heritage buildings and contributory and neutral buildings in heritage conservation areas:

(a) chimneys, and chimney detailing, are to be retained, even where fireplaces are no longer working;

(b) significant or original roof features, such as gables and finials, are to be retained; and

(c) missing significant or original roof features are to be reinstated when major works to the roof are proposed.

4.1.5.4 Traditional front dormers

Dormer windows are vertically proportioned windows providing natural light and ventilation to an attic room. Due to their limited size and traditional detailing they may be appropriate on the front plane of the roof in very limited circumstances. If the primary function of the dormer is to provide additional headroom, it will be considered under the provisions for roof extensions, and is only appropriate for the rear of the building.

30. The applicant considered the proposed dormer was a ‘sympathetic’ alteration as required by part 4.5.1.1 which wouldn’t detract from the appearance of the principal elevation further arguing that the proposed dormer must be an acceptable form for a roof addition to a terrace as it is precisely what is contemplated and promoted by the DCP at Figure 4.10 of part 4.1.5 as follows:

31. Ms Hill argued that Figure 4.10 was indicative only of appropriate works involving a new dormer, not replacement of an original dormer where all of the original dormers remain of a circular form discordant from the form in Figure 4.10. The proposed window treatment is not in a traditional form or of a similar proportion, scale or materials relative to the original dormers. In her opinion, although the proposed works are set below the ridge line of the terrace, the bulk and scale of the new work on the angle of viewing would also obscure the original form of the main roof in views from the west.

32. The applicant drew the Court’s attention to the detailed provisions for front dormers in part 4.1.5.4; agreeing the provisions were totally appropriate for preserving the front façade of the building to Victoria Street but contrasting this with the absence of such controls for rear dormers thus they must be less significant; a view it was claimed which was supported by the OEH recommended management for the property which indicates that any additions and alterations should be confined to the rear in areas of less significance, should not be visibility prominent and shall be in accordance with the relevant planning controls.

33. In response, the Council indicated that the proposal failed the relevant planning controls, principally the heritage planning controls.

34. The Council was also critical of the Heritage Impact Statement (HIS) lodged with the DA as it was not prepared by a heritage expert and did not demonstrate any understanding or knowledge of the significance of the building. This was considered critical information by the Council in order to assess how the development responded to the numerous heritage provisions of the LEP and DCP.

35. At section 3.9 part 3.9.2, the DCP states that the consent authority may not grant consent to a development application that proposes substantial demolition or major alterations to a building older than 50 years until it has considered a HIS, so as to enable it to fully consider the heritage significance of a building and the impact that the proposed development has on the building and it's setting.

36. The applicant argued that the proposal did not constitute either substantial demolition or major alterations.

37. In this regard, whilst it was agreed that some internal works or replacing a weathered opening could be considered minor alterations there was no agreement as to whether major alterations would include replacing an original dormer window or altering a roofline. The experts did agree that it would depend on the circumstances, the context and the heritage significance, and, at least in Mr Phillips view, on the location of the works.

38. It was the applicant’s argument that the HIS submitted was adequate for the purpose of justifying the works proposed being commensurate with the minor nature of the proposal, emphasising that the application was only one window albeit the window was of a different shape and size to the existing window. Nevertheless, Mr Phillips advised that a further HIS could be submitted if required.

39. The Council did not consider that Mr Phillips could conclude that the works were minor in the absence of a HIS outlining what the significance of the item and its elements were.

40. The parties were also in disagreement as to whether or not the dormer windows of the terraces could be readily seen from the public domain and the relevance of this.

41. Ms Hill argued that the rear elevation was designed to be viewed from across the Woolloomooloo basin and tendered a newspaper advertisement from 1885 when the terraces were advertised for lease referencing these views. The proposal to demolish one of the original five rear dormer windows was in her view in part unacceptable as it would alter the character and pattern of the original form of the terraces and reduce the integrity of the individual terrace and the group when viewed from various vantage points in the public domain. In any event Ms Hill argued that seeing the dormer window from the public domain was not the only basis for requiring its retention.

42. Mr Phillips argued that the rear elevation was never designed to be viewed from across the Woolloomooloo basin and that typically the rear of terraces was utilitarian. Furthermore the rear of the terraces had already been severely compromised by removal of the parapets and the skillion roof. However, if Ms Hill was correct, replacing the dormer with a larger opening would again open up views from the rear. He reiterated that the primary significance of the terraces lay in their presentation to Victoria Street complimenting and enhancing that streetscape and that, on their elevation to Victoria Street, the terraces were, and would remain, substantially intact.

43. In the Joint Report, Mr Phillips states that the rear roof is hardly visible from public spaces, with only distant views from the Domain and other buildings, particularly the adjacent tower of Victoria Point, overwhelming the terrace roof. He considered it difficult to read the row of dormers from the public domain, which he considered to be streets and parks not office buildings. In any case, he had formed a view that a different dormer form would not impact the significance of the terraces in that, although only four of the original curved dormers would remain, the roof form would not change and is already not intact.

31. Furthermore, Mr Phillips reiterated that the tower construction at the rear of the terrace resulted in reduced amenity to the private open spaces of the terraces which the proposed development would redress.

32. The Council considered that restoring the amenity for the residents of the terrace resulting from the high rise development at the rear was not a substantiated argument as the occupants had purchased the terrace in recent times in full knowledge of the impact of the adjoining residential flat building.

33. Finally, the Council noted that the proposal at 4.4 m in width exceeded the DCP maximum width of 4 m. Mr Phillips considered this exceedence minor and the form appropriate. Mr Phillips further noted that the proposal complied with the DCP in terms of the required setbacks from side walls and the rear.

34. In summary Mr Phillips argument was that the loss of the traditional dormer was warranted as it would provide amenity for the existing ‘highly compromised’ terrace and this was acceptable because:

1. the design of the replacement dormer follows the DCP guidelines for additions to the less significant rear portion of the terrace,

2. the dormer is not readily visible from the public domain,

3. the proposal does not impact on the principal significance of the item being its presentation to Victoria Street, and

4. the roof form has already been compromised including with the removal of parapets on the rear wing and the skillion roof.

48. Whilst acknowledging that an original dormer is being removed, Mr Phillips nevertheless concluded that the reduction of the heritage significance of the item would be minor and acceptable as the proposal respected the heritage significance of the item while adding significant amenity for the occupants of the terrace.

49. He also argued that approval to the proposal would assist others in the row of terraces to seek a similar level of amenity by replacing their dormer windows, stating the proposal forms a desirable precedent in that it will allow adjoining terraces, similarly disadvantaged by the unsympathetic treatment of the rear elevations and lack of private open space, to also benefit in an orderly manner from an appropriate proposal.

50. Rather than assisting to persuade the Council of the merits of the application, this suggestion was in fact viewed by the Council as an area of concern as it would set a precedent for all of the remaining original dormers being potentially removed and replaced further compromising the heritage integrity and intactness of the heritage item.

51. In summary, Ms Hill contended that the proposal introduces an unsympathetic element to the heritage item which does not respond to its heritage significance and would substantially adversely impact the heritage integrity of an important heritage listed building. In this regard, she considered the heritage item relies on the consistency of the group and integrity of the roof form for its listing. She noted that the building has survived since 1885 through the 1970s and 1980s redevelopment period and any alterations that have been undertaken have occurred consistently across the group in that time For this reason, and in her view, the proposal was unacceptable and would set an undesirable precedent for the other terraces within the group. Specifically, removal of the original dormer window does not comply with the provisions of 3.9.5 Heritage Impact of section 3 of the DCP as it:

1. would reduce the heritage significance of the item and is not reversible;

2. does not respect the pattern of the existing windows; and

3. cannot be said to enhance the heritage item by removing unsympathetic alterations and additions and reinstating missing details required by the controls, rather it degrades the heritage item by removing distinctive original fabric that contributes to the integrity and consistency of the group replacing this original fabric with unsympathetic additions.

Design Excellence

52. Design excellence provisions are found at cl 6.21 of the LEP and apply to development including external alterations to existing buildings. The LEP requires that a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved. The consent authority is also required to consider how the proposed development addresses any heritage issues and streetscape constraints.

53. The Council's main concern repeated throughout the hearing was that the existing dormer is part of an intact and likely original row of five dormers. Removing one dormer will detrimentally impact on the heritage significance of not only the individual terrace but on all of the terraces in the row comprising the heritage listed building. The proposal must, in the Council’s view, therefore fail to display design excellence as required by the LEP.

Height and FSR Non Compliances

54. The Council also contended that the proposal breached both height and floor space ratio (FSR) provisions of the LEP and this was not disputed by the applicant, albeit the applicant believed both breaches were minor.

55. Specifically however, the Council noted that the Court could not grant consent to these non-compliances without a clause 4.6 written request and justification, to vary the relevant standards, which the applicant accepted.

56. A written clause 4.6 ‘objection’ to the height control standard, rather than a request to vary it, was lodged with the original DA. The applicant argued in that request that a variation to the height standard should be supported as the proposal is set within the roof line of an existing heritage item the height of which was determined long before Council controls were introduced and that the 800 mm non-compliance was minor given the four level height of the existing terrace noting also that the building is bound to the west by a building considerably higher being the residential flat building at the rear.

57. The Council contended that the cl 4.6 request to vary the height standard had not adequately demonstrated that compliance with the standard was unreasonable and unnecessary in the circumstances of the case as is required by the LEP nor that there was sufficient planning grounds to justify contravening the standard as the LEP also requires. In the Council’s view, the non-compliance to height will detrimentally impact on the heritage significance of the building and is not in the public interest and there were therefore insufficient environmental grounds to justify the proposed variation as the applicant had not demonstrated that the non-compliance was appropriate to the condition of the site and its context as is required by cl 4.3(1)(a) of the LEP.

58. The applicant offered that, should the balance of the proposal be acceptable to the Court, a cl 4.6 request addressing the amended proposal in terms of both the height and FSR non-compliances could and would be lodged under the Amber Light process available to the Court and would presumably therefore be acceptable to the Court if the proposal overall was acceptable to the Court.

Visual Privacy

59. Finally the Council raised a concern that the proposal had the potential to increase overlooking and therefore have adverse impacts on the residential apartments at the site to the rear at 71 Victoria Street. Whilst acknowledging that the existing dormer window provide some views to the rear, the Council considered that the amended design would increase the opportunity for overlooking which was not desirable. Furthermore, opaque glazing to address overlooking was not considered appropriate for a heritage item by either of the experts.

60. The applicant argued that the adjoining building was already overlooked and was constructed after the terraces which overlooked it, that the apartments were oriented away from the site, and that the closest apartments had blinds which presumably the terrace could also have. The applicant also noted that there had been no objections from adjoining residents to the proposal.

Findings

61. This appeal was argued primarily on the acceptability or otherwise of the proposed works on a heritage item which is also a contributory building in a heritage conservation area.

62. Having heard the competing views of the heritage experts and the arguments of both parties, I cannot conclude that the removal of an original external feature, which is one of a row of original features, on a significant heritage building is warranted to provide improved amenity to a fourth level attic.

63. Whilst I accept that the new dormer may not be visible from a significant portion of the public domain and is at the rear of the building, it is apparent to me that, where it could be viewed, the proposed dormer would be discordant with the remaining four original dormers.

64. Aside from the loss of an original heritage feature, I agree with Ms Hill that the new dormer would introduce an unsympathetic element to the heritage item and does not meet or respond to the intent of the heritage controls.

65. Not at dispute between the parties was that the building is a listed heritage item in a heritage conservation area and a specifically identified contributory element in that conservation area. Also that the dormer to be removed and replaced is one of five readily identifiable if not identical remaining and likely original rear roof top curved dormers. Its removal and replacement with a window of substantially different form and appearance would in my view set an undesirable precedent.

66. I have difficulty accepting the conclusion of the applicant’s heritage expert that approval to this proposal would in fact set a desirable precedent by facilitating the removal of the remaining four original dormers in the other four terraces that make up the heritage building, or that it is justified in order to improve the amenity of what are in essence attic spaces of reasonably substantial four storey terraces.

67. Whilst I accept the proposed new dormer is not located in the principal elevation of the heritage item / contributory building, is at the rear, and is set below the ridge line, I still consider it to be a roof alteration or addition which will impact the integrity of one façade of a contributory building against the objectives of the DCP at section 4, cl 4.1.5. I also do not conclude that the form of window proposed will minimise the impact on the form, appearance and fabric of the principal roof form, minimise the impact on original and existing building elements nor complement the details and materials of the original roof as clause 4.1.5 requires.

68. I also do not consider the amenity of the occupants of the terrace to be so undesirable as to warrant the impact on the heritage item proposed. The terrace has living space and exterior openings at numerous levels, the work is only to improve the amenity of an attic / office, and that amenity, on the evidence before me, has not altered since the current owners purchased the property.

69. Furthermore, the Council offered during the hearing for the applicant to consider an alternative form of development to widen the window opening to improve amenity. Key to the Council’s offer was retention of the circular form of the existing dormer.

70. I agree with the Council’s argument that the proposal should have been accompanied by a Heritage Impact Statement prepared by a heritage expert as the Council controls require particularly given the significance of the item, notwithstanding the applicant’s claim that ‘it is only one window’. The DCP requirement for a HIS is for any heritage item or item within a heritage conservation area, and the building is both. This is irrespective of whether proposed works are minor or major. The HIS is required to address a range of matters which the HIS document submitted with the application did not address, including options considered when arriving at the form of development proposed.

71. Whilst the applicant can claim that the replacement window took on the form of an acceptable rear extension to a terrace indicated by the DCP this fails to consider the appropriateness of that form in the context of what exists. This is not a new dormer where no dormers exist – in fact it is a dormer completely at odds with the form of dormers that do exist. A Heritage Impact Statement could have established why the dormers were there in the first place and why they were or were not important aside from the fact that they remain today relatively intact. In the absence of this Statement, the experts were left to form different views on the basis for these terrace roof features and their significance. I found the Council’s argument more persuasive in this regard on the basis of the material provided to the Court but it reinforces why the controls require a Heritage Impact Statement in the first place. I therefore can’t accept the applicant’s claim that the work did not warrant a detailed Statement, or it could be provided retrospective to the approval, given the heritage significance of the item.

72. This is not simply the construction of a new dormer in a single terrace where one might otherwise refer for guidance to the provisions of the DCP for roof extensions. It is replacement of a dormer in a row of similar dormers on the fourth floor roof of a terrace which the experts agree are likely to be original features of a heritage listed building. Consideration of the impact of the development is not confined to the impact on one terrace but also to its immediate neighbours in terms of the appearance and heritage significance of those terraces, albeit the development is at the rear. Its removal therefore does not only impact on one terrace, it impacts on the group.

73. Whilst I accept the applicant’s argument that modifications to the front of the building would have substantially more impact including to the front streetscape than this proposal, it is highly doubtful that any such modifications would be supportable and it does not make the proposed modifications to the rear acceptable even if they would have a lesser impact.

74. In terms of the non-compliant height and FSR issues the Council raised I do not consider these non-compliances to be of themselves so significant as to be grounds for refusal of the application if the heritage impacts were found to be acceptable. They would however, need to be the subject of written requests to vary the respective standards under cl 4.6 of the LEP, as both parties acknowledged.

75. Similarly, any proposal which demonstrated acceptable heritage impacts would likely but not conclusively demonstrate design excellence. Given I find the proposed design does not meet the heritage requirements of the Council’s controls, I must similarly conclude it does not meet the design excellence controls.

76. Finally, I do not consider the visual privacy impacts of the proposal, in terms of the potential for increased overlooking of adjacent apartments, to be a valid ground for refusal. These apartments are already overlooked by the terrace at the level of the proposed development and were constructed in close proximity to the building in the knowledge that there were terrace openings at various levels. I note the apartments are oriented away from the terraces and have the capacity to reduce overlooking through interior fittings.

Orders

77. The orders of the Court are:

1. The Appeal is dismissed.

2. Development Application D/204/1516 for a new dormer window at 67 Victoria Street, Potts Point is refused.

3. The exhibits are returned with the exception of Exhibits 1, 2 and C.

________________________

Jenny Smithson

Acting Commissioner

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Decision last updated: 30 March 2016