Land and Environment Court New South Wales Medium Neutral Citation: Benjamin v Sydney City Council No. 2 [2016] NSWLEC 1027 Hearing dates: 26 November 2015 with final submissions filed on 27 January 2016 Date of orders: 02 February 2016 Decision date: 02 February 2016 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION: rooftop terrace, height of retractable awning Cases Cited: Benjamin v Sydney City Council NSWLEC 1568; R v Lowe (1954) 19 LGR 348 Category: Principal judgment Parties: Anthony Benjamin (Applicant) Sydney City Council (Respondent) Representation: Solicitors: A Whealy, Gadens (Applicant) A Simpson, Sydney City Council (Respondent) File Number(s): 10760 of 2015 Judgment 1. On 2 December 2015 judgement was delivered on the substantive matter, an appeal against Sydney City Council's refusal of a development application for a new roof terrace to the roof and new stairs to connect the existing living room of an apartment at 15 Billyard Avenue Elizabeth Bay (see Benjamin v Sydney City Council NSWLEC 1568). 2. Directions for the applicant to prepare, file and serve amended plans that reflect the findings in [61-62] of that judgement within 14 days and for the council to prepare and file conditions of consent seven days after receipt of those plans were made. 3. The parties failed to meet the timeframe set however the plans and conditions have now been filed with the Court. Draft condition 4 (a) is in dispute. 4. That condition relates to the retractable awning discussed in the judgement and the council seeks to impose a restriction on the height of that awning. Proposed condition 4(a) is as follows: When extended, no part of the retractable awning or its associated structure shall exceed RL 38.280. 1. As there was a dispute between the parties, in accordance with a just cheap and quick resolution of the matter, written submissions were requested. Council's submission 1. The Council is of the view that it was the intent to not permit any structures above the RL of the existing ridge of the roof (RL 38.280), hence the reason for condition 4(a). 2. The Council contends the retractable awning is considered to be a 'structure', in particular, as being something that is "built up of component parts" (see R v Lowe (1954) 19 LGR 348). Applicant's submission 1. The applicant contends that paragraph 63 of the judgement provides that the retractable awning structure itself, which is to be affixed to the building, should not exceed RL 38.280, which is the height of the existing ridge line. In the applicant's submission, the "structure" referred to in the judgement is the awning fixing point and not the ephemeral sunshade device (awning). The applicant submits that the awning should be allowed to extend to RL 39.075 (when extended), which is the maximum height of the original fixed roof projection. 2. The issue of the retractable awning arose from the alternate design approach offered by the applicant's senior Counsel, Sandra Duggan, SC, and included the replacement of the fixed roof projection the on the roof ridge with a retractable awning, fixing point no higher than the roof ridge. The awning offered by the applicant was always proposed to be angled, albeit that it must be retracted when not in use. The angled awning provides additional head space, light and amenity, without creating any permanent external impacts given that it will be retracted when not in use. 3. Moreover it appears that the Court's intention was to accept the submission of the applicant in this regard in so holding that there is to be no "structure above the height of the existing ridge line" and that "there are to be no projections beyond that plane other than the 'ephemeral' sunshade device". (Para [63]). The decision made a specific exception for the sunshade device itself to exceed the RL now specified in Council draft condition 4. 4. Via its draft condition 4, the council is effectively seeking to challenge or revisit this substantive aspect of paragraph 63. The proposed retractable awning alternative design was not proposed or intended as a horizontal warning. This is why, in the applicant's submission, the judgement at para [64] requests Council to "prepare conditions of consent including a requirement that the shade structure is closed when the terrace is not in use." 5. If it was intended that the extendable warning of the sunshade structure be horizontal, the applicant submits that it would have proposed a further alternate design, which was a fixed horizontal roof form (rather than retractable). Further, the applicant submits that the Court would not have required this condition for the awning to be retracted when the terrace is not in use (as in that case, it would never be any higher than the ridge line of the roof). Conclusion and findings 1. The plans that were before the Court, Exhibit C, proposed the awning extend to a height of RL 39.075. That is to facilitate sufficient head room as that part of the covered space below the existing roof line would be minimal. This fact is recognised at [63] where I state that there is a need to ensure minimum door height. 2. The height from the floor (RL 36.085) to ridge (RL 38.280) is only 2.195m. Allowance must be made for the height of the awning structure and its supports and it is anticipated that such a structure would require a depth of somewhere between 150 to 250mm. That would further reduce the available head height to just over 2m should the council's condition be imposed. This is well below the acceptable floor to ceiling height for dwelling houses and residential flat buildings which vary from 2.4m to 2.7m. The maximum point of the awning provides for a height of 2.99m less the structural component of the awning. This is considered appropriate and consistent with my findings. This is also consistent with the plans filed on 12 January 2016 which will form part of the consent. 3. Accordingly, I accept the applicant's submissions and impose a maximum height for the awning when open at the northern face of RL 39.075. 4. The Orders of the Court are: 1. The appeal is upheld. 2. Development Application D/2015/843 is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits 1 and C, are returned. ______________ Sue Morris Commissioner of the Court ********** 10760 of 2015 (C) Morris (162 KB, pdf) 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: 02 February 2016