Land and Environment Court New South Wales Medium Neutral Citation: Harper v City of Sydney Council [2013] NSWLEC 1091 Hearing dates: 6,7 May 2013 Decision date: 07 May 2013 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. The application to modify conditions of consent to the approval by the City of Sydney Council on approval D/2010/2111/A for alterations and additions to an existing terrace house at 524 Bourke Street, Surry Hills is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 5 and W. Catchwords: MODIFICATION; conditions relating to relocation of external stairway, whether height of garage should be reduced, whether heritage interpretation study required and whether unacceptable heritage impact of new rear balcony Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 South Sydney Development Control Plan 2007 South Sydney Heritage Development Control Plan 2006 South Sydney Local Environmental Plan 1998 Sydney Local Environmental Plan 2012 Sydney Development Control Plan 2012 Category: Principal judgment Parties: Luke Harper and Suzanne Lemon (Applicants) City of Sydney Council (respondent) Representation: Mr Luke Harper, litigant in person, (Applicants) Mr A Simpson, solicitor (respondent) - (Applicants) City of Sydney Council (respondent) File Number(s): 10127 of 2013 Judgment 1COMMISSIONER: This is an appeal under s 96(2) to delete and modify a number of conditions imposed by the City of Sydney Council on approval D/2010/2111/A for alterations and additions to an existing terrace house at 524 Bourke Street, Surry Hills. 2The modification application seeks to delete conditions 2(a), 2(d), 2(e), 2(f), 2(g), 2(h), 2(i), 2(j) and 4(e) and to amend conditions 2(b), 2(c) and 4(d). The conditions address numerous issues but relate to: 1. the size, shape and screening for a rear balcony at the first floor; 2. the roof structure for the drying area on the second floor; 3. the roofing and height of the garage; 4. the location of the spiral staircase from the rear first floor deck; 5. the location of the internal lift; 6. the material for windows and doors on the lower ground and ground floors at the rear of the dwelling; 7. heritage interpretation strategy for an internal stair. 3The appeal was subject to mandatory conciliation and arbitration on 6 May 2013 under s 34AA of the Land and Environment Court Act 1979. As no agreement was reached the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(b)(ii). 4While the conciliation conference was terminated a number of the contentions were addressed to the satisfaction of both parties by amended plans, discussions during the conciliation and during the hearing. 5The remaining contentions were: 1. whether the spiral staircase should be relocated away from the boundary with 522 Bourke Street to protect privacy; 2. whether the height of the garage should be reduced by 250 mm; 3. whether the heritage interpretation strategy for the internal stairs should be required; and 4. whether the heritage impact of the first floor deck extension is acceptable. Relevant planning controls 6The site is currently zoned General Residential (R1) under Sydney Local Environmental Plan 2012 (LEP 2012). As the proposal was submitted prior to the coming into effect of LEP 2012 the savings and transitional provisions in cl 1.8A apply. These provisions require the application to be considered as if LEP 2012 had been "exhibited but not commenced." 7The planning instrument prior to the coming into effect of LEP 2012 was South Sydney Local Environmental Plan 1998 (LEP 1998) where the site was within Zone 2(b) - the Residential (Medium Density) Zone. Sydney Development Control Plan 2012 is to be read in conjunction with LEP 2012 and South Sydney Development Control Plan 2007 (DCP 2007) relates to LEP 1995. South Sydney Heritage Development Control Plan 2006 (DCP 2006) relates specifically to heritage matters. 8The outstanding contentions do not raise any issues in LEP 2012 or LEP 1995 beyond heritage considerations although the DCPs provide requirements for visual privacy, bulk and also further heritage conservation requirements. The spiral staircase 9The concerns over the location of the spiral staircase centres on the overlooking aspects from people using the staircase into the adjoining property at 522 Bourke Street. The owners of this property provided evidence on site and raised significant concern. Expert evidence was provided by Ms Kate Bartlett, from the council who proposed that the stair be located away from the boundary to provide a greater setback from the common boundary with 522 Bourke Street. 10Mr Anthony Betros provided expert evidence for the applicant and maintained that the location of the stair was appropriate given that it is in a similar location to a similar style of stair on 522 Bourke Street. The owners of this property have planted bamboo that already provides good screening and this can be supplemented with additional planting on the applicant's property. Mr Betros further states that the relocation of the stair away from the side boundary will adversely impact on the utility of the limited area already available as private open space on the applicants property. 11For visual privacy, DCP 2012 provides that balconies and decks above ground should "minimise overlooking of surrounding buildings" (cl 4.1.8.1(1)(a)) and DCP 2007 has similar requirements that provide that "direct overlooking of adjacent private open space and living rooms immediately abutting new development should be minimised." (cl 4.1). 12With the benefit of the site inspection, I agree with the conclusions of Mr Betros for a number of reasons. First, the stair is a transitory structure and is not normally capable of prolonged viewing. Second, the style of the staircase requires careful movements and normally a person using the staircase will be looking at the steps rather than across the boundary. Third, adequate screening is already provided by the bamboo on 522 Bourke Street. Fourth, additional landscaping area is to be provided on the site to supplement the existing bamboo screening. Fifth, the movement of the stair away from the common boundary will have little, if any, impact on the ability to overlook the adjoining property if there was no existing or proposed landscaping. Sixth, I agree that the utility of the private open space is a valid argument given that there are no reasons why the stairs should be relocated. Seventh, I see no unacceptable visual impact, including any heritage impact, of having two spiral staircases in close proximity to each other notwithstanding there are no examples elsewhere in the area. Eighth, the stair will provide secondary access only from the first floor level to the ground level as new stairs and a lift will be constructed within the new dwelling. 13Overall, I am satisfied that the location of the spiral staircase is not inconsistent with the objectives in DCP 2012 and DCP 2007. I am also satisfied that the stair has no impact on the heritage significance of the group of terraces. The height of the garage 14The contention over the height of the garage centres on bulk and scale but not from the rear lane but internally from the site and some adjoining terraces. Ms Bartlett maintains that a reduction in the height of the garage by 250 mm compensates, in terms of bulk, for the pop-up stair that provides access to and from the garage from the private open space area of the site. She states that the stairs by their solid construction unnecessarily add to the bulk of the garage when viewed from inside the site and from some adjoining terraces. 15Mr Betros states that the stairs are necessary for access and to provide privacy for the adjoining property. They do not occupy the full width of the garage and do not specifically add to the bulk of the garage. In his opinion, a reduction in height of the garage would be inappropriate as it is proposed at the same height as the adjoining garage and complies with the 5.4 m height requirement of the council. 16On this matter, I also agree with Mr Betros. In my view, the appearance from the rear lane is of greater importance and in any event, I do not accept that the stairs add any meaningful bulk to the garage when viewed from the site or adjoining sites. I note that Ms Bartlett accepts there was no impact on the garage or stairs from the rear lane or any other public space. 17I also understand that the stairs do not encroach into the 35 sq m of private open space required by cl 1.4 of DCP 1997. 18I accept that the height and bulk objectives in cl 2.5 of DCP 1997 are satisfied. The interpretation strategy 19On the question of the need for the interpretation strategy for the internal stair, expert evidence was provided by Mr Tony Smith for the council and Mr Steven Davies for the applicant. Mr Smith maintained it was a necessary requirement given the heritage listing of the properties while Mr Davies thought it was less necessary than Mr Smith. 20The site and the terrace is one of a group of prominent four storey terraces known as Olivia Terrace built circa 1875. The terrace group is listed as a heritage item under LEP 1998 and LEP 2012. Their significance is identified as "Terrace group including interiors". 21While cl 3.23 of DCP 2006 provides for the opportunity for interpretation of heritage elements, I see no reason for the interpretation strategy for the stairs, in this case. I note that most internal walls are to be removed and any understanding of the traditional layout of a 19th century terrace will be lost anyway, notwithstanding that the significance of the terrace includes its interior. Given the removal of most other elements from the interior of the dwelling, the suggestion that there is a need for an interpretation strategy for the stairs, in my view, is tokenistic at best. The extension of the deck 22Mr Smith also expresses concern over the extension of the deck at the first floor level. In his opinion, the deck will extend beyond the existing decks at 522 Bourke Street and the deck on the site. His concern also relates to the height of the screen although this was ultimately agreed between the parties at 2.1 m in height. 23Mr Davies notes that the southern part of the existing deck is to be removed and not replaced. The proposed deck is similar to the existing deck on its northern edge with an extension beyond this to provide access to the spiral staircase. Overall, he states that the new deck will have no heritage impact on the dwelling or the area. 24On the size of the deck, I agree with Mr Davies. While there is an extension to the deck, it is only for a small area of some I sq m and is located away from the common boundary with 522 Bourke Street. I note that Ms Bartlett has no objection to the size and configuration of the proposed deck. 25I am satisfied that the size and configuration of the proposed deck has no impact on the heritage impact of the terraces or the area. I also note that the deck will not be visible from any public area including the lane at the rear. Resident objections 26The owner of 522 Bourke Street raised additional items such as: 1. breaches of the floor space ratio (FSR), height and bulk of the building, 2. overlooking from other areas not previously addressed in the judgment and 3. the potential for structural damage to his property. 27In relation to FSR, height and bulk, the council report acknowledges the breaches to the height and FSR requirements although it also acknowledges that the existing dwelling is already in breach of these requirements and the additions do not add that significantly to the breaches to the point where it warrants the refusal of the application. I agree with this conclusion. 28The other potential sources of overlooking, apart from the spiral staircase, were addressed and with clarification of some omissions from the plans, the council accepted that there were no reasons to refuse the application on overlooking grounds to 522 Bourke Street. I also agree with this conclusion. 29I would also add, given the historic nature of the dwellings and the relatively dense nature of development in this area, total privacy is an unreasonable expectation. I note that the council planning objectives seek to "minimise overlooking". In my view, this is a reasonable and practical approach to overlooking. 30Concerns over potential structural problems are satisfactorily addressed by conditions of consent. Orders The orders of the Court are: 1. The appeal is upheld. 2. The application to modify conditions of consent to the approval by the City of Sydney Council on approval D/2010/2111/A for alterations and additions to an existing terrace house at 524 Bourke Street, Surry Hills is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 5 and W. ___________ G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2013