Patel v The Council of the City of Sydney [2019] NSWLEC 1080

Land and Environment Court New South Wales

Medium Neutral Citation: Patel v The Council of the City of Sydney [2019] NSWLEC 1080 Hearing dates: 14 February 2019 Date of orders: 10 April 2019 Decision date: 01 March 2019 Jurisdiction: Class 1 Before: Dickson C Decision: See directions at [75]

Final Orders: see Addendum at [77] below Catchwords: DEVELOPMENT APPLICATION: Internal alterations to terrace house – State heritage listed as part of a group – whether the development proposed has an heritage impact Legislation Cited: Environmental Planning and Assessment Act 1979 Heritage Act 1977 Sydney Local Environmental Plan 2012 Texts Cited: Australia ICOMOS Charter for Places of Cultural Significance, The Burra Charter, 2013 Sydney Development Control Plan 2012 Category: Principal judgment Parties: Nandini Patel (Applicant) The Council of the City of Sydney (First Respondent) Office of Environment and Heritage trading as Heritage Council of NSW (Second Respondent) Representation: Counsel: R White (Applicant) Submitting appearance (Second Respondent)

Solicitors: Lexes Lawyers (Applicant) A Singh, Council of the City of Sydney (First Respondent) Department of Planning and Environment (Second Respondent) File Number(s): 2018/120933 Publication restriction: No

Judgment

Nature of Proceedings and Outcome 1. COMMISSIONER: The applicant, Ms Nandini Patel, is appealing the consent conditions imposed by the Respondent Council on modification application D/2017/130/B. The building works proposed by the modification application are within an existing terrace house at 51 Lower Fort Street, Dawes Point. A number of alterations and additions have been approved for the terrace house. Within the conditions annexed to the approval of D/2017/130/B the following works were refused consent: 1. the creation of a new door opening between the bedroom and bathroom on the first floor; 2. the construction of a new 2.1m high internal partition within the approved bathroom to reduce the size of the bathroom, conceal the bathroom plumbing and services and create a new storage area; and 3. installation of a new maintenance hatch to the roof. 1. The applicant seeks the Court to remove the relevant conditions to allow the modification application to authorise these works to be undertaken. 2. The Court directed and facilitated a conciliation conference between the parties on October 10 2018. Agreement was unable to be reached between the parties and the matter has proceeded to hearing for determination. 3. The Council contends that the application should be refused on the following grounds: 1. The proposed works will have an unacceptable heritage impact and will diminish the heritage significance of the heritage item; 2. Given the adverse impacts on the heritage significance of the building, approval of the development is not in the public interest. 1. Following the joint conferencing of the heritage and planning experts engaged by the parties the design and installation of the roof hatch and the bathroom partition wall is agreed to be acceptable. Appropriate conditions of consent to effect the agreement of the experts have been prepared and agreed. The issue that remains in dispute is whether it is appropriate to grant consent to a new opening between the bedroom (Room 3.5) and the new bathroom (Room 3.4). 2. Following consideration of the evidence presented I find that the opening proposed between the bedroom (Room 3.5) and the new bathroom (Room 3.4) will impact the heritage significance of the four terraces collectively listed on the State Heritage Register (SHR) as Item 906. Further I am satisfied that such an impact on the significance of the item is not warranted in the circumstances of this application as the impact will result in the loss of significant fabric in a manner that is not adequately justified and other reasonable options for access to the bathroom exist. 3. At the close of the hearing I provided the applicant with an opportunity to tender an alternative design for the bathroom partition wall in the event that I determined the new opening proposed between the bedroom (Room 3.5) and the new bathroom (Room 3.4) was not acceptable. On 19 February 2019 a sketch was filed that provides an internal door in the proposed bathroom partition wall. This sketch is agreed between the experts as being acceptable and is annexed to this judgement. At par [75] I have provided directions to allow the Applicant, should they wish, to amend their modification application to reflect the appended sketch and this judgement.