Blainey North and Associates Pty Ltd v Council of the City of Sydney

Land and Environment Court (NSW)|2024-05-30

JudgmenT

COMMISSIONER: This is an appeal against the actual refusal of Development Application D/2023/184 (as amended during these proceedings) (the DA) being for alterations and additions to a two storey terrace house (proposed development) at 1 Goodlet Street, Surry Hills, NSW 2010, being Lot 1 in DP 527961 (the Site).
The subject terrace house is located in the Goodlet Street heritage conservation area (C63) (HCA) under the Sydney Local Environmental Plan 2012 (SLEP) and is a contributory item in the HCA. Along with the twin terrace house neighbour at 3 Goodlet Street, No 1 was built in the 1890s but the twin terraces are not listed as items of local heritage in the SLEP. Adjoining the twin terraces to the east along Goodlet Street are single storey cottages. The twin terraces at Nos 1 and 3 Goodlet street are the only two storey terraces in view at this part of Goodlet Street. Across the road on the northern side of Goodlet Street is a red brick residential flat building complex comprising social housing built in or about the 1970s. The northern side of Goodlet St is not part of the HCA. These facts are relevant to the heritage assessment as will become apparent.
The Site is irregularly shaped and adjoins Perry Street to the west and Goodlet Lane to the rear. The buildings to the west across Perry Street front Elizabeth Street so that the view to the west of the Site is of the rear of the existing shops. These properties being 502 - 514 Elizabeth St form a block that includes 272 - 276 Cleveland St approved by Council for demolition and rebuild. The subject site and the block to the west are visible on the following Figure 1 reproduced from the Council SOFAC. Figure 1: Site location plan

The Development Application

The alterations and additions to the subject terrace house can be described by paragraph [1] of the Respondent's Amended Statement of Facts and Contentions (Amended SOFAC), subject to the qualifications set out in the Applicant's Statement of Facts and Contentions in Reply (SOFAC in Reply) with respect to paragraphs 1(f) and 1(j) of the Amended SOFAC. Reading these two documents together, the proposed works the subject of the DA before the Court comprise: 1. Infill existing ground floor external door from the powder room to the courtyard, and create a new internal door to access the powder room. 2. Infill existing highlight window and create a new external opening to the ground floor lounge room for new double doors and external steps to access the courtyard. 3. Restore the existing enclosed first floor front balcony to bedroom 2, by removing the existing windows alcove and replacing with a traditional balustrade and installing new double doors within the existing opening. 4. Relocate existing A/C units on the first floor western facade to the ground floor internal courtyard. 5. New skylight over the first floor hallway. 6. Applicant's paragraph 1(f): "the proposal is more accurately described as a small attic style addition over part of the front portion of the terrace at 1 Goodlet Street, Surry Hills (Site), containing a new bedroom and ensuite with external dimensions of 4650mm x 3850mm, with two sky lights and rear windows". (underlining added) 7. Council's paragraph (f): "[s]econd floor addition over the original front portion of the building, including a new bedroom and ensuite, with two skylights and rear windows". (underlining added) 8. Remove the existing awning attached to the western façade, and replacement with new retractable awning in the same location. 9. Remove existing metal colorbond fence and gate to Perry St and the corner of Goodlet St, and replace with a new timber fence. 10. Repainting, remediation and general repair works to the building façade. 11. Relocate existing downpipes on the western wall to within the balcony/verandah (no material difference between the parties).
It can be seen from the versions of sub paragraph (f) where the dispute lies between the parties in respect of the upper level proposed works (Upper Addition) to the two storey terrace. The Respondent has no objection to the other works proposed listed in the preceding paragraph at (a) to (e), and (g) to (j). In respect of Contention 1 - design excellence, the Council has only objected to the Upper Addition.

Issues before the Court 1. Is the Upper Addition, an attic or a storey - question of fact; 2. On a merit assessment is the proposed development compliant or non-compliant with the heritage impact provisions in the Sydney Development Control Plan 2012 (SDCP) and SLEP and if the latter is the noncompliance and any heritage impact such that development consent should be refused; 3. Does the proposed development exhibit design excellence as that term is understood in cl 6.21C of the SLEP such that the Court has the power to grant development consent to the DA.

As mentioned, the DA was amended by way of amended drawings and supporting documents consisting of a schedule of conservation works, schedule of amendments, and photomontage. Council advised that the amended application was not notified, as the amendments are considered minor for the purposes of s 8.15(3) of the Environmental Planning and Assessment Act 1979 (EPA Act). There were no written objections to the DA and no persons sought to address the Court at the on site inspection.
The areas of dispute are reflected in Council's remaining Contentions 1 and 2. Contentions 3 and 4 having been resolved by agreed conditions prior to the hearing.

Position of Council - Contentions 1 and 2

Council contends that the Application must be refused for the following reasons (extracted from the Amended SOFAC): "CONTENTION 1: DESIGN EXCELLENCE 26. The Application does not exhibit design excellence as required by Clause 6.21C of the SLEP. Particulars 27.The proposal does not demonstrate a high standard of architectural design, materials and detailing appropriate to the building and location as required by Clause 6.21C(2)(a) of the SLEP. 28. The form and external appearance of the proposal will not improve the quality and amenity of the public domain, as required by Clause 6.21C(2)(b) of the SLEP. 29. The proposal has not adequately addressed the matters under Clause 6.21C(2)(d) of the SLEP, including: Part (d)(iii) - heritage issues and streetscape constraints; Part (d)(v) - the bulk, massing and modulation of buildings; Part (d)(vi) - street frontage heights; and … 30. Council contends that the Application should be refused for the following reasons. CONTENTION 2: BUILDING FORM, HERITAGE IMPACTS, AND CHARACTER 31. The proposed upper-level addition entirely projects above the existing flat roof plane and is not contained wholly within the existing roof, constituting an additional third storey in breach of Council's Building Height in Storeys control - s4.1.1(1) of the SDCP. 32. The inclusion of this noncompliant third storey results in detrimental heritage impacts to the existing contributory two-storey parapet terrace, to the Goodlet Street Heritage Conservation Area (C63), and the Surry Hills South locality and streetscapes. Particulars 33. The proposal fails to address Section 3.9.7 of the SDCP which states that alterations and additions to contributory buildings must "(3)(a) respect significant original or characteristic built form". 34. The non-compliant additional storey is unsympathetic in form and bulk and will visually impact the appreciation of the existing roofscape creating a bulk behind the large two chimneys that currently stand against the sky, adversely affecting the silhouette of the parapet and roof due to the site's high visibility from ground level from the public domain. This is contrary to Section 3.9.7(2) off the SDCP which states "Alterations and additions must not significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements". 35. The additional bulk of the unsympathetic third storey will disrupt the uniformity of the terrace pair and development along the southern side of Goodlet Street, as well as set an undesirable precedent for the adjoining property at No.3 Goodlet Street. 35A. The resulting three storey form is inconsistent with the Statement of Significance for the heritage conservation area, which identifies one and two storey Victorian terraces as having aesthetic significance. The proposed third storey addition is also inconsistent with the recommended management strategy for the heritage conservation area, which recommends the retention of the form of two storey Victorian terraces, and that additions to the rear are to retain the original roof form, as the proposal will require the demolition of the majority of the existing original roof in order to accommodate the new addition. The proposal is therefore contrary to Section 3.9.6 of the SDCP which states that "(1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing the heritage conservation area statement of significance", and "(4) Development within a heritage conservation area is to be consistent with policy guidelines contained in the Heritage Inventory Assessment Report for the individual conservation area". 36. The proposal fails to conserve the heritage significance of the Goodlet Street Heritage Conservation Area, as per DCP section 3.9.6 and it is contrary to the objectives of s5.10 of Sydney LEP 2012, and its aim to conserve the environmental heritage of the City of Sydney. 37. The additional storey is inconsistent with the objectives of the SDCP Building Height in storeys control, which are as follows: Ensure development reinforces the existing and desired neighbourhood character with an appropriate height in storeys and street frontage height in storeys. Ensure development in heritage conservation areas relate to the existing neighbourhood character in terms of height in storeys and street frontage height in storeys. Retain and conserve the principle building form and its relationship to the street for heritage items and contributory buildings in heritage conservation areas. 38. The proposal fails to give effect to cl 4.1.4.6 of the SDCP which states that "(3) Additional storeys located behind parapets to buildings with flat or skillion roofs are only appropriate where the addition: (a) will not be visible from the surrounding streets and lanes, and (b) will not have an adverse impact upon the uniformity of a group, row or semi-pair of buildings". 39. The proposal does not reinforce the existing and desired neighbourhood character, which is generally single storey terraces (with the occasional two storey rear addition) along the southern side of Goodlet Street. It does not retain and conserve the principle building form and its relationship to the street, as the upper addition will be highly visible from multiple street frontages and will disrupt the uniformity of the pair of terraces, and therefore does not comply with Section 4.1.4.6 of the DCP controls."
In summary, the Respondent submits that the Upper Addition is a storey not an attic and that 'the proposed roof addition should be refused as it does not exhibit design excellence as required by cl 6.21C of the SLEP. Further, its departure from the SDCP height in storeys control renders it an unsympathetic and inappropriate addition to the otherwise intact Heritage Conservation Area.'

Applicant's position

The Applicant submits the Respondent's expert's analysis that the proposal cannot exhibit the requisite design excellence because it is visible (from certain points) above the existing skillion roof and in her opinion comprises an additional storey, is a flawed approach to cl 6.21C of the SLEP. Rather, the Applicant further submits that the proposed Upper Addition, and the proposal in its entirety, does exhibit design excellence for the reasons set out in the SOFAC in Reply at [27] to [29], as supported by the opinions expressed, respectively, by Mr Chambers and Mr Browne in the joint report of their conclave at [50] - [59].
The Applicant also submits that the Upper Addition can be correctly described as an attic addition in keeping with the SLEP and SDCP but even if it is considered to be an additional storey, on a merit assessment, the Court would approve the proposed development because it is an attic style extension by reason of the degree to which it is contained within the existing roof space and is a modest well designed addition which has no adverse amenity impacts and is not unacceptable considered on its merits from either an urban design or heritage perspective.

Statutory and other Planning Controls

Contention 1 relies on cl 6.21C of the SLEP, is a jurisdictional provision and states relevantly as follows: 6.21C Design excellence "(1) Development consent must not be granted to development to which this Division applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. (2) In considering whether development to which this Division applies exhibits design excellence, the consent authority must have regard to the following matters - (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) … (d) how the proposed development addresses the following matters - (i) …… (ii) …... (iii) any heritage issues and streetscape constraints, (iv) ….. (v) the bulk, massing and modulation of buildings, (vi) street frontage heights,"
The statutory planning provisions arising under Contention 2 are cl 5.10 of the SLEP and the SDCP, chapters 3 and 4.
Clause 5.10 of the SLEP relevantly states as follows: 5.10 Heritage conservation (1) Objectives The objectives of this clause are as follows - (a) to conserve the environmental heritage of the City of Sydney, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) …. (d) …. (2) Requirement for consent Development consent is required for any of the following - (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance) - (i) … (ii) … (iii) a building, work, relic or tree within a heritage conservation area, … (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6)."
In support of Contention 2 the Council largely relies on clauses 3.9.6, 3.9.7, 4.1.1 and 4.1.4.6 of the SDCP and these clauses are reproduced in the Council's Contentions quoted above. In particular, the objectives of clause 4.1.1 - Building Height in Storeys - is set out above at para [9], particular 37.

Expert Evidence

The experts joint conferenced and prepared Joint Reports which were tendered without objection as follows: 1. Robert Chambers (RC) (town planner) for the applicant and Nick Reid (NR) (town planner) for the Respondent (Ex 4); 2. Tim Browne (TB) (architect) for the applicant and Erin Colgrave (EC) (urban designer) for the Respondent (Ex 4); 3. James Phillips (JP) (heritage architect) for the Applicant and Hui Wang (HW) (heritage (heritage specialist) (Ex 5) and (Ex 6).
The experts gave evidence and were cross examined concurrently. There was some overlap of opinions as regards the issues I have identified in the case.
Prior to the hearing the heritage experts JP and HW were directed by the Court to undertake further joint conferencing and prepare a supplementary joint report to address: "Paragraph 39 of the Applicant's SOFAC in Reply filed 10 April 2024 to address the heritage impacts of the approved development at 502-514 Elizabeth St and 272-276 Cleveland St, Surry Hills." (Ex 6, p 3)
The Supplementary Joint Report (heritage) was duly produced and tendered in evidence as Ex 6.

Consideration - Contention 2 - built form, heritage, character

I shall firstly consider the issues arising under Contention 2 because it requires a finding on a proposed building element that is relevant to my consideration of Contention 1 - Design Excellence.

Issue 1 - attic or storey

These terms are defined in the dictionary to the SLEP (adopted in clause 1.8 of the SDCP) as follows: "attic means any habitable space, but not a separate dwelling, contained wholly within a roof above the ceiling line of the storey immediately below, except for minor elements such as dormer windows and the like." "storey means a space within a building that is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above, but does not include - (a) a space that contains only a lift shaft, stairway or meter room, or (b) a mezzanine, or (c) an attic."
Reading those two definitions together, in my opinion, it is open to conclude that an 'attic' is a smaller habitable space than a storey because of the express exclusion of 'attic' in (c). The inclusion of minor elements such as dormer windows and 'and the like' is of a broad compass and the proposed Upper Edition fixtures and fittings fits within this broad description.
Clause 4.1.4.6 of the SDCP sets out controls for additional storeys and notes in the third paragraph: "Converting an existing roof space for a usable attic is not an additional storey."
Clause 4.1.4.6(3) of the SDCP states that: "(3) Additional storeys located behind parapets to buildings with flat or skillion roofs are only appropriate where the addition: (a) will not be visible from the surrounding streets and lanes, and (b) will not have an adverse impact upon the uniformity of a group, row or semi-pair of buildings."
The Respondent placed significant emphasis on the wording in the dictionary definition of attic "contained wholly within the roof space" read with the wording in the DCP, at clause 4.1.4.6 "…converting an existing roof space for a usable attic" to argue that the proposed Upper Addition is not an attic. The Respondent's reasoning being that as the existing skillion roof is being removed in part and replaced with a new roof in part to create useable space, the proposal cannot satisfy the DCP controls and should not be approved.
I make the following observations. Firstly, if I find the Upper Addition is not an additional storey but is an attic, then clause 4.1.4.6(3) does not apply. Secondly, if I find that it fits within the SLEP definition of 'storey', clause 4.1.4.6(3) permits the Upper Edition, being "behind a parapet to a building with a skillion roof" and I need to consider and assess on the merits the "visibility from the surrounding streets and lanes" (clause 4.1.4.6(3)(a)) and, "impact upon the uniformity of a group, row or semi-pair of buildings" (clause 4.1.4.6(3)(b)). Thirdly, clause 4.1.4.6 specifically contemplates additional structures to the upper level of a terrace house where the Upper Addition cannot be contained wholly within the roof space for the obvious reason the roof is flat or a skillion. Fourthly, it does not necessarily follow, that if you have a skillion roof, any structure at all that you seek to add to the upper level is an additional storey.
An interpretation of the planning controls considered above when read together do not impinge on a grant of consent to the proposed Upper Edition as part of the DA, whether an attic or a storey. I agree with the analysis and conclusions of Mr Chambers in his evidence concerning this issue of attic versus storey, specifically that the proposal is height compliant because it is less than 9.0 metres high. To quote from the Joint Report, Mr Chambers said the following: Ex 4, paras [90] - [92]: "[90] The Respondent's position appears to be that because the addition protrudes through the existing roof and sits under its own new independent roof, it is not contained wholly within a roof structure and thus cannot be considered to be an attic. [91] Relevantly, whilst there is a definition of a "storey" in the dictionary in the LEP, (a storey, is defined to exclude an attic) there is no "storey" control in the LEP: the height control in the LEP is solely that relating to building height measured in metres (i.e. 9.0m) with which the proposal complies. There is also no "attic" control in the LEP. Because there is no "storey" control in the LEP, whether or not an attic style addition is or is not an attic as defined in the dictionary of the LEP, does not give rise to any LEP compliance issue. From an LEP perspective, the proposal is height compliant because it is less than 9.0m high. [92] The control on storeys (in this case two storeys) is in the DCP. As the provisions of a DCP are not statutory requirements and as the DCP contains guidelines and is to permit flexibility and to allow reasonable alternative solutions, then there need not be (and, in my opinion, should not be) rigorous application of LEP terminology to DCP provisions. In my opinion, this is a case where the DCP provisions should be applied flexibly. As the proposed addition is an attic style addition and is within the 9.0m LEP height control and has an area of only some 15.4m2 it should not matter, in a determinative sense, whether it is a storey or an attic." (underlining added)
I find that the Upper Addition can be correctly described as an 'attic' for the following reasons: 1. Fits within definition of attic in the SLEP - as creating habitable space with minor fittings and fixtures - a partly rebuilt roof does not necessarily detract from that; 2. Is of a commensurate size (15.4 sq m) and form to be understood as an attic, not an additional storey - in any event there is no size specification for an attic in either the SLEP definition or SDCP controls; 3. Is located to the rear of the building, sits within the SLEP height limit for the Site and is designed to slope downwards at the location of the chimney to respect the existing western parapet silhouette; 4. In its final built and fitted out form and intended use, the space will be more correctly described in common parlance as an attic rather than a third storey; 5. The fact that the terrace house has an existing skillion roof not a gable roof does not necessarily preclude an attic conversion at the upper level of the building of the design proposed by the Applicant. 6. It is not visible from Goodlet Street when viewed directly in front, and when viewed from other parts where the experts agree it is visible it does not present as an additional storey and does not protrude above the chimney and curved front parapet abutting the neighbouring terrace as demonstrated in the following plan. Figure 2: plan DA_03 Elevation Goodlet Lane and Street
If I be wrong and the Upper Addition could only be described as an 'additional storey', I have considered the guideline requirements under SDCP clause 4.1.4.6(3) as to when an additional storey on a skillion or flat roof is appropriate, being where the addition: "(a) will not be visible from the surrounding streets and lanes, and (b) will not have an adverse impact upon the uniformity of a group, row or semi-pair of buildings" and find that these matters going to merit are met (see my findings above and following with respect to cl 5.10).
I do not agree with the Respondent's submission that: "….the presentation of the building to parts of Goodlet Street, Perry Street and Goodlet Lane is a presentation that is more reminiscent of a 3 storey structure than a 2 storey structure with an attic space contained within a roof". (para 19)
In my opinion, the Respondent has adopted a rigid approach to the SDCP controls and SLEP dictionary definitions in arguing that the proposed building can only be classified as three storeys and therefore is in breach of the SDCP, creates an impermissible impact, does not exhibit design excellence and should not be approved.
Development control plans contain guidelines to permit flexibility and allow reasonable alternative solutions, they are not mandatory requirements.
Whether described as an attic or a storey, it is permissible with consent and there is no difference to the final roof form such that I should refuse the proposal to create an additional habitable space for the sole reason that the existing terrace house has a skillion roof, not a pitched roof amenable to building habitable space wholly within the existing roof.

Issue 2 - heritage impact

The attic vs storey issue is not determinative of the appeal. What is determinative is whether the Court standing in the shoes of the Council as consent authority has considered the effect of the proposed development on the heritage significance of the Goodlet Street HCA pursuant to cl 5.10(4) SLEP, mindful of the objectives of the heritage conservation clause set out in cl 5.10(1) of the SLEP. The Council relied heavily on the provisions of the SDCP in the particulars to Contention 2, supported by their heritage expert, Mr Wang.
With respect to clause 3.9.7(3)(a) of the SDCP which states that alterations and additions to contributory buildings must "(3)(a) respect significant original or characteristic built form", I prefer the evidence of Mr Phillips as follows: "[28] The addition clearly respects the significant original characteristic built form of the terrace for the following reasons: ∙ The front elevation of the terrace is untouched by the proposal save for conservation work and the removal of an intrusive balcony infill from the first floor balcony. ∙ The side elevation is maintained and enhanced through conservation works and removal of unsightly additional elements. ∙ The side elevation is maintained including chimneys and the parapet line. ∙ The attic addition is simple in form, recessive in tone and clearly, where visible, a sympathetic later addition."
I do not agree with Mr Wang's opinion that contrary to clause 3.9.7(2) SDCP, the alterations and additions will significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements, with particular reference to the side façade which, in his opinion, makes a significant contribution to the conservation area.
I prefer the opinion of Mr Phillips as follows: "[35] The attic is sympathetic in terms of form and bulk and will have little impact visually on the appreciation of the existing roofscape, which is hidden behind the prominent side parapet. It will create some bulk behind the lesser of the two chimneys and along the lower part of the parapet. Although the lesser chimney currently stands out against the sky, the provision of a visually recessive structure behind it will have little impact on the silhouette of the parapet and roof due to the limited visibility from ground level from the public domain."
Mr Wang concluded that the proposed addition will have unacceptable heritage impact. I do not agree that this conclusion is open to be made on the evidence before me and observations on Site.
I accept the opinion of Mr Phillips that the proposal retains and conserves the principal built form and its relationship to the street as the attic addition will not be highly visible from Goodlet Street.
I do not agree with the Respondent's submissions that the Heritage Conservation Area exhibits a high level of intactness, and together with the departure from the controls, renders the proposal an untenable addition within the heritage Conservation Area (Respondent's Submissions, para 41). Firstly, I have described, above at [2], features of the area surrounding the Site which do not support the Respondent's submission. Secondly, the proposed development incorporates restoration and repair works which will enhance and conserve the twin terrace houses' (including the terrace at No 3 Goodlet Street) existing positive contribution to the streetscape in accordance with the Goodlet Street Heritage Conservation Area Statement of Significance: LEP #C63.
I have not attached any weight to the approved development to the west referred to above as it is not yet built and has different zoning.
I find that the Respondent has not made out the particulars of Contention 2 regarding heritage (reproduced above at [9] particulars 32 to 39) and the objectives of cl 5.10(1) SLEP are met. Accordingly having considered the effect of the proposed development on the heritage significance of the Goodlet Street HCA and the contributary item at 1 Goodlet Street I am satisfied that consent can be granted to the proposed development.

Issue 3 - design excellence

In considering whether the proposed development exhibits design excellence, under cl 6.21C(2) of the SLEP, I must have regard to, relevantly: "(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain,... (d) how the proposed development addresses the following matters - (iii) any heritage issues and streetscape constraints, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights,"
The Respondents particulars of Contention 1, reproduced above at [9], basically state that the development application fails to achieve all of the above, and therefore does not exhibit design excellence and the DA must be refused.
I have considered the competing expert evidence on this issue and examined the plans and documents of the DA, as amended. The Court and the parties carried out a thorough inspection of the Site and surrounding areas, assisted by the parties consultants, experts and Council officers. I find that the proposed development does exhibit design excellence for the following reasons.
In reaching that decision I have had regard to the matters listed at cl 6.21C(2)(a) and (b) and do not agree with the Respondent's particulars that the proposal doesn't demonstrate a high standard of architectural design and materials. In my opinion, the form and external appearance of the proposal will improve the quality and amenity of the public domain.
With regard to s 6.21C(d), the proposed development does address the heritage issues and streetscape constraints, and the Respondent has not made out any of the particulars 27, 28 and 29 of Contention 1 (see reproduced above).
I do not agree with the opinions expressed by Erin Colgrave in the Joint Report and consider her approach too narrow. Clause 6.21C refers to the 'proposed development' such that in my opinion the proposal as a whole needs to be considered for design excellence. The provision is jurisdictional and unless I am satisfied that the 'proposed development' exhibits design excellence, consent must not be granted to 'the development'.
Ms Colgrave's analysis focused exclusively on assessing whether the Upper Addition exhibited design excellence and that it could not possibly achieve design excellence because it was a three storey building. There was no analysis of design excellence of the 'proposed development', nor if the Upper Addition was found by the Court to be an attic addition, which although not Council's position, to assist the Court, could have been assessed and expert opinion provided.
I agree with Mr Browne's evidence in the Joint Report where he states: Ex 4, at [58] and [59]: [58] In my opinion the architectural design, materials and detailing are appropriate to the building type and its location - primarily improving the existing condition and presentation of the existing facades (as detailed in the architectural drawings and the Schedule of Conservation Works). The proposed roof alteration which forms part of the application, is located inboard of the existing parapet and external western wall and has been detailed in high quality recessive dark coloured standing seam metal cladding. The setbacks of the attic style roof addition comply with the DCP controls for roof alterations (SDCP 4.1.5.5), being a minimum 500mm from the side wails, minimum 200mm from the rear wall, and does not exceed 4000mm in overall width. [59] In relation to the roof alteration, it is further noted this has been carefully designed so as not to overwhelm the integrity of the contributory building (SDCP 4.1.5). The south facing windows in the roof alteration relate to the proportion and orientation of the original windows in the building. Roof features such as the chimney, chimney detailing, gables and parapet features are all maintained (SDCP 4.1.5.2). It is considered the above all demonstrate the design excellence by which the proposal has been prepared."
The proposed development is for alterations and additions to an existing terrace house built in the 1890s that has had significant unsympathetic alterations made to the building. It is not a new build, it is a contributory heritage item in a HCA and there is limited capability to introduce anything new that may be of a superior design. In my opinion, the architect for the proposal, Tim Browne has done his best and the plans and associated documents are of a high quality and the overall design of the alterations and additions to the existing terrace house meet the considerations of cl 6.21C of the SLEP, detailed above.

Conclusions and Orders

For reasons set out above, I find the Upper Addition element of the proposed development can be described as an 'attic'. I accept the Applicant's wording as to the description of the Upper Addition element as an 'attic style addition': Applicant's written submissions, at [25].
A principle point of difference between the parties is the approach that should be taken to the SDCP. The Respondent placed considerable emphasis on its argument that the proposed Upper Addition did not meet the SDCP height in storeys control and therefore should not be approved.
In my opinion, the correct approach to the SDCP is as set out in the Applicant's submissions that although the DCP is one of the mandatory considerations under s 4.15 of the EPA Act and, for that reason, is a 'focal point' for assessment: Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 and Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472, the provisions in the DCP must be applied flexibly: s 4.15(3A) EPA Act. Section 3.42 of the EPA Act makes it clear that the principal purpose of a DCP is to provide guidance, relevantly, to the consent authority.
Mr Howard SC took the Court through the amendments to the EPA Act in 2012 to correct the mischief they were directed to as set out in the second reading speech of the then Planning Minister, the Hon. B Hazzard MP: Second Reading Speech, Environmental Planning and Assessment Amendment Bill 2012, 24 October 2012: Ex D.
I have set out above my reasoning, adopting a flexible approach to the SDCP in the facts and circumstances of this case. The evidence demonstrates that the proposed development meets the relevant SDCP objectives and, on a merits assessment, warrants the grant of consent for those reasons not whether or not it is considered an attic or a storey. I agree with Mr Chambers that the proposed development is compliant with the SLEP height control of 9.0m. The proposed development, to the extent it might be considered (if it is not an attic) to not comply with clause 4.1.1 SDCP - Building height control, is a 'reasonable alternative solution' as per s 4.15(3A)(b) of the EPA Act because it is consistent with the objectives of that planning control: see Preston CJ in Saffioti v Kiama Municipal Council [2019] NSWLEC 57 at [27].
I have considered the effect of the proposed development on the heritage significance of the Goodlet Street HCA and find that the proposed development, being a contributary building in the HCA meets the objectives of the SDCP in that it retains and conserves the principal building form of its genre with its neighbouring attached two storey terrace house and its relationship to the street and existing neighbourhood character. The alterations and additions removing the non-compliant alterations to the terrace house improve and enhance the street and in doing so the works the subject of the development application, No D/2023/184, conserve the environmental heritage of the City of Sydney and the heritage significance of the HCA pursuant to cl 5.10 of the SLEP.
I also find that the proposed alterations and additions to the subject terrace house including the Upper Addition are designed to respond to the Site opportunities and constraints and the proposed development under D/2023/184, the subject of this appeal, exhibits design excellence in accordance with cl 6.21C of the SLEP.
It follows from my reasons and findings above that the appeal should be allowed and consent granted to the development application No D/2023/184, subject to the agreed conditions of consent attached and marked Annexure A.
The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to development application No D/2023/184 for alterations and additions, comprising an attic style addition, restoration of the front balcony, and changes to openings on the ground floor of the existing dwelling at 1 Goodlet Street, Surry Hills, NSW 2010, being Lot 1 DP 527961, subject to the conditions of consent in Annexure A.

Annexure A 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: 29 October 2024

(2004) 136 LGERA 254

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