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. 1. 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. 2. 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. 3. Expert evidence on heritage matters was provided to the Court by Mr James Phillips for the applicant and Ms Jennifer Hill for the Council.