Clewley & Anor v Council of the City of Sydney

Land and Environment Court (NSW)|2011-09-27

Judgment 1COMMISSIONER: This is an appeal pursuant to s 97(1) of the Environmental Planning & Assessment Act 1979 (the Act) against the refusal by the City of Sydney Council (the council) of development application number D/2011/134 for alterations and additions to a building at 333 South Dowling Street Darlinghurst (the site). 2The Application for Development describes the proposal as: 'new indoor living space on existing roof top terrace comprising of living room, study and shower room'. The proposed development comprises:

Demolition of an existing addition at the rear of the ground floor shop and its replacement with a larger extension to provide new change rooms;
A replacement extension on the first floor above the shop extension to provide a new bathroom and ensuite;
Formation of two new Juliet balconies to the Taylor Street elevation of the building;
Refurbishment of an existing balcony;
Internal alterations to change existing room uses on the first floor;
A modification to the roof and roof space to create a new part floor with open plan living room, kitchen and dining room with access to the existing roof deck. 3The roof top extension extends the existing terrace slab to the west. The extension is setback 3m from the South Dowling Street frontage and 1m from the Taylor Street frontage. 4Council does not oppose the replacement extensions to the ground floor shop and first floor bathroom nor the refurbishment of the existing balcony however, the roof top extension and Juliet balconies are opposed. 5In December 1998, development application U98-00848 was approved for the demolition of an existing metal roof and its replacement with a roof deck garden. In July 2010, DA D/2010/1041 was approved for the formation of a staircase and enclosure from the first floor dwelling to the roof terrace and an extension of the terrace over the bathroom below. Work to implement this consent has not commenced.

The site and locality 6The site is a part two, part three storey Victorian building (circa 1876) on the corner of South Dowling Street and Taylor Street Darlinghurst; the primary street frontage is South Dowling Street. A shop occupies the ground floor and residential dwellings occupy the lower ground floor and the first floor levels. The roof is a trafficable deck for the dwelling. 7The site is zoned No. 2 Residential (Medium Density) under the South Sydney Local Environmental Plan 1998 (SSLEP), and B4 Mixed Use under the Draft Sydney Local Environmental Plan (DSLEP). The site is rectangular in shape with an area of 75.9m 2 . 8The site is not a heritage item but is located within the Paddington Urban Conservation Area (CA39) under SSLEP. The heritage status is not changed in DSLEP. The City of Sydney Heritage Development Control Plan 2006 (CoSHDCP) identifies the site as a 'contributory building'. 9Buildings in the locality are typically two to three storeys of traditional construction; with some one and four storey buildings. Surrounding land uses are residential, commercial and retail.

Contentions 10The council's contentions are summarised as follows:

The proposed rooftop addition will detract from the character of the building and conservation area.
The proposed height and floor space ratios do not comply with the controls in South Sydney Development Control Plan 1997 (SSDCP) or the DSLEP.
The rooftop addition is not sympathetic to, or in character with, the setting and therefore does not satisfy the relevant clauses in SSLEP and CoSHDCP.
The proposed Juliet balconies are uncharacteristic and will detract from the architectural style of the building. They will also compete with the existing balcony and replace original windows.
The proposal is not in the public interest.

The assessment framework 11The site is zoned No 2(b) - Residential (Medium Density) in the SSLEP. The relevant objectives are given in cl 12(1). The objectives of Zone No 2 (b) are: (a)To enhance the amenity of existing medium density residential areas, and (b)To nominate those localities which are primarily residential and where future residential development is likely to occur, and (c)To ensure that building form including alterations and additions, is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment, and (d)To provide limited opportunities for non-residential development which provides goods, services or employment for residents and is of a type and scale that is compatible with existing or planned residential development and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment, and (e)To facilitate a higher density and diverse forms of residential development on appropriate sites, and (f)To facilitate opportunities for small scale local business activity which is compatible with existing residential area. 12The applicants contend that their proposal meets all of the zone objectives. The council's position is that the development is contrary to cl 12(1)(c). 13Clause 22 of SSLEP concerns heritage conservation. The site is located within the Paddington Urban Conservation Area. The following aims are relevant: 22 Heritage aims The consent authority must not grant consent to the carrying out of development on the site of a heritage item, or within a heritage conservation area or heritage streetscape area, unless it is of the opinion that the proposal is consistent with the following aims and objectives: (e) to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of heritage items, of heritage conservation areas and their setting, and of streetscapes within heritage streetscape areas and their setting, and (f) to ensure that any development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of distinctive streetscapes, landscapes and architectural styles which define the character of heritage conservation areas or streetscapes within heritage streetscape areas, 14Clause 28 of SSLEP deals with 'Built environment design principles and masterplans. The council presses the following clauses. (1) The Council, in determining an application for consent to the carrying out of any development on land to which this plan applies, must take into consideration whether the development: (a) has been designed to reinforce and protect the local topography and setting, (b) reinforces and enhances the streetscape and character of the locality, and (c) is compatible with the scale and design of neighbouring development, 15South Sydney Development Control Plan 1997 (SSDCP) applies. Part E control 2.2 permits a maximum floor space ratio (FSR) of 1:1. The existing FSR is 1.8:1 and the development proposes an FSR of 2.6:1. 16SSDCP Part E cl 2.3 concerns height and scale. The objectives are to ensure buildings: Are appropriate in scale, compatible and complementary with areas of township significance, the site and its context Do not dominate and overshadow the Public Domain. Achieve high environmental amenity. Performance criteria The height of new buildings: Adopts the predominant height and scale of adjoining buildings and has a similar bulk and mass to the neighbours... Building height for infill development maintains appropriate proportions in relation to street width. To reinforce street corners, corner buildings may be higher than adjoining buildings only where the additional height will not be detrimental to the streetscape. Controls Building height is no greater than the height specified in the Height Control Map -[in this case 6m] not including an attic as defined in the DCP 17The City of Sydney Heritage Development Control Plan 2006 (CoSHDCP) applies. The site is listed as a contributory building. Clause 4.3 states: 4.3 Contributory buildings make a significant contribution to the character of heritage conservation areas and heritage streetscapes. They are normally intact or with reversible alterations, and date from key development periods. They are defined as buildings which are from a: (i) significant historical period layer, highly or substantially intact; or (ii) significant historical period layer, altered yet recognisable and reversible. The appearance of a principal or significant frontage should generally be conserved, however alterations and additions may be possible to the rear of contributory buildings. (1) Contributory buildings are to be retained. (2) Alterations and additions should not significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements. (3) Alterations to contributory buildings must: (relevantly) (a) respect significant original or characteristic built form; (c) retain significant fabric; (d) retain, and where possible reinstate, significant features and building elements, including original balconies and verandahs, fences, chimneys, joinery, shop front detailing etc; (g)Respect the pattern, style and dimensions of original windows and doors. 18Clause 6.7 of CoSHDCP covers ' additional storeys'. Upper floor addiotns to the rear that retain the main form of a building and do not exceed the main roof ridge height are generally more acceptable than changes that alter the height, scale or form of the original building. (1) Additional storeys to the main building or street frontage are generally not supported where: (a) a building is part of an intact group or streetscape; (b) the existing building is comparable to a consistent or predominant building height in the streetscape; (d) the diversity of an area is part of its heritage significance and the additional storey would reduce or compromise that diversity. (2) Additional storeys should respect the parapet or ridge line of immediately adjoining buildings. (3) Additional storeys located behind parapets to buildings with flat or skillion roofs are only appropriate where there will be no visible impact upon the view from the surrounding streets and lanes and the addition would not have an adverse impact upon the uniformity of group, row or semi-pair. 19Clause 8.2.3 concerns 'Ensuring sympathetic roof alterations and additions. ....Roof additions should be designed to permit the original roof form, slope and ridge of the building to be easily discerned and should not overwhelm the integrity of the existing building. (1) Roof alterations and additions are: (a) to complement the details and materials of the original roof; (b) not to detract from the architectural integrity of the principal elevation of a heritage item, contributory building, or a group of buildings in a heritage conservation area or heritage streetscape; and (c) respect the form, pitch, eaves and ridge heights of the original building. (5) Roof additions are not supported on buildings with front or side parapets where the addition will adversely affect the silhouette of the parapet line. 20Section 79C(1)(a)ii) requires consideration of any proposed instrument that has been the subject of public consultation under the Act. In this case, In this regard, the Draft Sydney Local Environmental Plan 2011 (DSLEP-2011) must be considered. Under DSLEP-2011, the site remains within a heritage conservation area. The DSLEP-2011 proposes a height limit of 9m measured from ground level to the top of the roof and an FSR of 1.75:1.

The hearing and evidence 21The hearing commenced with a statement from the convenor of the Paddington-Darlinghurst Community Working Group. The group objects to the proposed development and submits that the development should not be approved on the basis that it does not retain the character of the area but rather, it will detract from the character of the conservation zone. 22The paved roof top terrace was inspected. As the approved works for the construction of a staircase and enclosure have not yet commenced, access was via pull down steps. The height of the proposed addition was measured against a vent pipe. 23The applicants devised a walk through the nearby streets to observe the character of the conservation area and to note examples of rooftop additions. It was noted that the locality is characterised by many 2 storey attached terraces with pitched roofs, some 3, some 4 storey dwellings and commercial buildings, some single storey terraces, some new dwellings and some dwellings with new additions at the rear that included roof top extensions. Dormer windows in terraces with pitched roofs are not uncommon. Corner buildings were observed to be generally taller than adjoining buildings. 24To the north of the site is a row of attached two storey terraces with pitched roofs. The ridge line of the adjoining terrace is about 500mm above the height of the parapet wall of the applicants' property. On the opposite corner of Taylor Street and South Dowling Street is an original two storey masonry warehouse with a pitched roof in which there may be useable space. The ridgeline of this building is higher than the applicants' building. 25The South Dowling Street and Taylor Street facades were viewed from the opposite side of South Dowling Street and photomontages produced by the applicants showing the proposed additions were considered from the respective positions. 26The applicants rely quite heavily on approvals granted to developments at 122 Flinders Street Darlinghurst and 354 South Dowling Street Paddington. These two properties were viewed on the street walk. The former is The Local Taphouse, a hotel on the corner of Flinders Street and South Dowling Street. In November 2009, following a s 82(A) review, council approved a fake mansard roof with dormers above the original parapet to act as an acoustic barrier for a rooftop terrace for the use of patrons. 354 South Dowling Street is a corner building very similar in size and form to the applicants' property but without a verandah. In January 2003, the former South Sydney Council granted approval for 'alterations and additions including an addition of a residential unit and terraces on a new floor'. The applicants contend that the roof top extension they propose is less bulky and visually intrusive than that approved for 354.

Heritage evidence 27The heritage experts were Ms K Erdelyi for the applicants and Ms J Hill for the council. The experts prepared a joint report and an appendix to the report illustrating a range of buildings within the conservation area; a number of which were viewed on the street walk. 28The experts agree that: the Paddington Urban Conservation Area (CA39) in which the site is located has a high number of contributory buildings and a small number of detracting buildings; there are 15 listed heritage items in the vicinity of the site; the portion of South Dowling Street in which the site is located, Taylor Street and many nearby streets are listed as 'A grade' streetscapes in the Heritage Inventory for CA39; the A grade street rating for South Dowling Street reflects its primary streetscape character with the facades of the buildings being more important than rear facades to the lanes; and, the existing building is a cohesive component of the streetscape. The experts also agree on the applicability of the relevant controls and the extent to which the existing building and the proposed development contravene the current and draft planning controls. [Exhibit 6 shows marked up plans illustrating the non-compliance with the height controls.] 29The main areas of disagreement are the extent to which the proposed rooftop addition and the Juliet balconies will detract from the character of the building and the conservation area, including the streetscape, and the compliance or otherwise with the relevant controls.

Rooftop addition 30Ms Hill considers that, notwithstanding the existing non-compliance with the current height controls, the portion of the proposal that is most non-compliant with the height controls in both the current SSDCP and the draft SLEP-2011 is the most visible. She contends that while the approved staircase exceeds the proposed 9m height limit in the draft SLEP to a small extent, it is not a reason to extend the approval to an entire new storey. The staircase has a small footprint whereas the new storey does not. In her view, the staircase projection reads more as a 'chimney' element and an extension of the party wall between the site and the adjoining property to the north. She considers that the photomontages show the addition to be visible from both South Dowling and Taylor Streets; the setback from Taylor Street is only 1 m. Ms Hill contends this contravenes cl 6.7(3) of the CoSHDCP that states that there should be 'no visible impact' on the view from the streetscape. In her opinion, if the council had wanted to say 'minimum visual impact' it would have. In addition, the modern roof form is unsympathetic and will detract from the silhouette of the parapet line in contravention of cl 8.2.3 of CoSHDCP. In her view, the proposal also contradicts cl 4.3 of that DCP in respect to contributory buildings. 31With respect to the character of the area, Ms Hill does not see the area as wildly eclectic and considers it to have a high level of integrity consisting of mostly intact buildings of a variety of forms. This opinion is based on the fact that she prepared the heritage inventory sheets for council. In regards to 354 South Dowling Street, she states that this was approved prior to the introduction of the CoSHDCP. In her view, the proposal is not in the public interest and its approval could set an undesirable precedent. 32In response to a question from the applicants regarding 'book-ending' of streets and the common occurrence of corner buildings being taller than those between corners, Ms Hill does not believe the controls are actively encouraging this. Whilst cl 2.3 Part E of SSDCP states that corner buildings may be higher, this is only if the additional height is not detrimental to the streetscape. She contends that the building on the corner of South Dowling and Oxford Street is an original three-storey hotel and is quite different in its form to the applicants' property. 33Questions arose as to the relative importance of the use of the building as a shop. Ms Hill agreed that the site has a long history of use as a hotel and commercial premises but that the built form has more importance. Ms Hill opined that consideration should be given to reconfiguring the existing building to connect the lower ground floor living area with the first floor. [The applicants contend that this has been thoroughly considered and in their view is not practical or desirable.] She also stated that the reality of living in a heritage conservation area brings with it some restrictions. 34Ms Erdelyi contends that the proposed roof addition is a modern lightweight structure that will not be seen as part of the original building, (an important consideration in heritage matters). In her opinion, the control in 6.7(3) of CoSHDCP does not say that an addition behind a parapet wall can't be seen, but rather it goes to the visual impact. That is, it is allowed to be seen but that the impact should be acceptable. In her view, given the 3m setback from South Dowling Street, the visual impact is not significant. She also considers that should the site become a heritage item, the proposed structure could be removed and satisfies heritage conservation guidelines that consider an addition should be reversible. In her opinion, anyone walking down the street will see the 'street wall' rather than the top of the building. 35Ms Erdelyi states that the area is quite diverse and that the approved anomylous elements illustrated in the appendix to the joint report are simply part of the layering that occurs over time in any conservation area and that the proposed development will be simply another layer. In her view, this enables a conservation area to 'live and breathe'. In Ms Erdelyi's opinion, the fabric of the building is unaffected by the roof top addition and while the form of the building will change, the change is insignificant and therefore it does not offend clauses 4.3 and 8.2.3 of the CoSHDCP. Further, she contends that the retention of the mixed use of the building is a very important aspect of the heritage character of the site and the conservation area. 36With respect to the public interest, Ms Erdelyi considers it is in the public interest to allow sympathetic extensions without the rigid application of controls, particularly given the gentrification of the area since the early days of its establishment. In her view, the best way of retaining a heritage item is to make it useable to enure the life and longevity of a conservation area.

Juliet balconies 37Ms Hill considers that the proposed Juliet balconies will remove part of the original fabric of the building and compromise the pattern of the building; in this respect, the balconies cannot enhance the building's heritage values. She contends that the building has windows and not a verandah on the Taylor Street frontage. The existing verandah reflects the building's use as a hotel and is attached to a living room and not a bedroom. In her view, this proposal adds rather than removes detracting elements and is therefore counter to the heritage objectives in the CoSHDCP. 38Ms Erdelyi considers that whilst some original fabric will be removed, this is acceptable in this instance as the building is rendered, the works are reversible, there is no significant alteration of the appearance of the building, and in her opinion, the balconies will improve the appearance of the Taylor Street faade.

Submissions 39The applicants contend that their proposal meets all of the relevant zone objectives. They consider that an increase in living space will enable them to stay and have a family, which will have a positive impact on the vitality of the local area. They have considered the option of converting the shop to residential use and the option of connecting the two residential floors however they consider the latter option to be impractical and the former would be inconsistent with the building's long history of mixed commercial/residential use. The applicants consider that the corner site is an appropriate location to extend the residential component of the building in line with zone objectives (b) and (e) of SSLEP. 40They contend that there are many examples of roof extensions in the conservation area, in particular the building at 354 South Dowling Street, which they say is a mirror of their building. The applicants also press the recent approval of the roof structure at 122 Flinders Street. They consider these precedents should enable them to do the same. 41The applicants raised the planning principles on the assessment of the impact of a new development on the aesthetic and landmark significance of a heritage item elucidated in Anglican Church property Trust v Sydney City Council [2003] NSWLEC 353 at [34]. Relevantly this states: ...It seems to us that four main principles apply to such an assessment: First, a new development should not unreasonably reduce public views of the heritage item and its setting. This is because the pleasure people derive from a landmark heritage building is by viewing it. If one cannot see a landmark, it ceases to be one. Second new development should not visually dominate the heritage building. A dominant new building, even when it does not obscure the heritage building, will render the experience of seeing the heritage building more complex and less delightful. Third, new development should not unreasonably overshadow the heritage building. Fourth, new development should relate to the character and form of the heritage item. This does not require imitating style or using the same materials. It requires only that new development should sit comfortably in a view that embraces both the old and the new. 42The applicants contend that the proposed development follows this planning principle. Their position is that the rooftop addition is simply another layer which is light weight and contemporary in its form, which will be submissive to the strong masonry fabric of the building and will not be visually intrusive or detract from the character of the area. They press the point that the extension will not create overshadowing of any nearby living area nor are there concerns about overlooking. Therefore as the amenity of nearby buildings is not compromised, the development is acceptable. They submit that the visual impact is not significant and therefore acceptable. 43The applicants contend that the current building exceeds the height and FSR controls of the current LEP and the draft SLEP and that as the council has approved a further non-compliant element, the staircase, then as long as the proposal achieves the aims and objectives of the various plans, then the further non-compliance of the roof extension should be discounted. 44With respect to the Juliet balconies, they would have preferred to extend the existing balcony however, as the building did not originally have a wrap around balcony, the Juliet balconies were a compromise. They contend that the balconies do not project into the air space of the public domain and are within their property line. 45Mr Singh for the council contends that the applicants own a large building capable of being used as a residence or for mixed use. The site is a contributory building in a largely intact heritage conservation are, and not surprisingly, the area contains a mix of building sizes and styles. The examples of council approved developments observed on the site view are generally not relevant as they are not comparable to the site or, in the case of 354 South Dowling Street, predate the CoSHDCP. With respect to 122 Flinders Street, the council contends that the circumstances of that development, being a hotel on a busy corner, are quite different to the applicants' proposal. 46The council does not oppose the rear extensions to the shop and the first floor, nor does it dispute the existing significant departures from the height and floor space controls. However, the council contends that the visual impact of the roof top addition and the construction of the Juliet balconies contravene the provisions of the CoSHDCP. It does not consider the corner location of the site to be adequate justification for a further increase in height. In council's view, the public interest is best served by keeping buildings such as the site intact as far as possible.

Roof top addition 47The applicants contend that the proposal complies with the zone objectives in SSLEP in that this development will enhance the amenity of the area, is a site for future higher density residential development and does not detract from the character and amenity of the area. The council's view is that it will detract from the character of the conservation area in which it is located. The question to be answered is whether the additions are in character with the surrounding built environment and whether they detract from the amenity of the nearby residents or the existing quality of the environment. In this regard, absent overshadowing, the amenity is visual amenity. 48In granting consent, the council, or in this case the Court, apart from ensuring that development must be consistent with the zone objectives, must not grant consent unless it is of the opinion that the proposal is sympathetic to and not detract from a heritage conservation area or heritage streetscape in accordance with cl 22 of SSLEP. 49Key to determining consistency with the aims and objectives of the relevant clauses of SSLEP are the controls in CoSHDCP. In this regard I accept the council's argument that the applicants' reliance on any precedent set by the development at 354 South Dowling Street is misplaced as this approval was determined on 31 January 2003 (Exhibit D) prior to the City of Sydney Heritage DCP, which came into effect on 2 January 2006. 50The applicants also rely on the approval granted for 122 Flinders Street. Consent was granted on 25 November 2009 (Exhibit E). This exhibit contains a report by Ron Howard & Associates (prepared for the applicant in that matter) in response to the heritage reasons for the initial refusal of the proposal as part of a s 82A review. On page 3 of this report is a photograph of 354 South Dowling Street with the caption: Recently completed roof addition at 354 South Dowling Street, the appearance of which is visually inconsistent with the original nineteenth century building below it. Another photograph of the same building on page 6 has the caption: Looking south along South Dowling Street towards Flinders Street. The predominant two storey character is interrupted by the two buildings near Albion Place, one of which features a recent roof addition [No 354]. It would seem that this report supports the council's contention that such developments often precipitate a new control. I also agree with council in that the roof addition to 122 Flinders Street is distinctly different in its style and purpose to that proposed by the applicants. As such, I do not propose to give any weight to the applicants' submissions on the precedent value of these two developments. 51I also note that the planning principle in Anglican Church predates the CoSHDCP. To quote from the Court's web site [http://infolink/lawlink/lec/ll_lec.nsf/pages/LEC_planningprinciples]: While planning principles are stated in general terms, they may be applied to particular cases to promote consistency. Planning principles are not legally binding and they do not prevail over councils' plans and policies. Therefore, while the applicants may consider their proposal is generally consistent with that planning principle, the CoS Heritage DCP must prevail. 52In Zhang v Canterbury City Council [2001] NSWCA 167 at [75], the Court of Appeal found that while a consent authority has a wide ranging discretion, especially in consideration of 'the public interest', that discretion is not unfettered and a DCP has to be considered as a 'fundamental element' or 'focal point' of the decision making process. 53In my view, CoSHDCP is clear on the contribution of contributory buildings to the character of heritage conservation areas and heritage streetscapes. It is common ground between the heritage experts that the surrounding streetscapes are 'A grade' reflecting the primary streetscape character with the facades of the buildings. Clause 4.3 of the DCP states that for contributory buildings the appearance of a principal or significant frontage should be generally conserved, however alterations and additions may be possible to the rear. Here the experts disagree on the significance of the roof top addition. Of particular relevance is cl 6.7(3) which states: Additional storeys located behind parapets to buildings with flat or skillion roof are only appropriate where there will be no visible impact upon the view from the surrounding streets and lanes... Further at 8.2.3(1) Roof additions and alterations are: (a) to complement the details and materials of the original roof; (b) not to detract from the architectural integrity of the principal elevation of a ...contributory building...or heritage streetscape; (c) respect the form, pitch, eaves and ridge height of the original building. And at 8.2.3(5) Roof additions are not supported on buildings with front or side parapets where the addition will adversely affect the silhouette of the parapet line. 54According to the applicants' Statement of Heritage Impact' prepared for them by CJM Heritage Pty Ltd, the original hipped corrugated iron roof behind the parapets was removed in 2000 and replaced with a hard-paved roof terrace. Therefore, while the original roof has been removed, the parapets remain. The evidence would suggest that the proposed new addition is very different to the original roof in that it is a rectilinear block with a concrete roof and large windows. In this regard I find that the proposed addition, whilst being clearly discernible as a contemporary layer, is so different in its form that it will detract from the architectural integrity of both the Taylor Street and the South Dowling Street elevations and will also adversely affect the silhouette of the parapet lines. I consider that the addition is clearly visible impact from the surrounding streets and will have an impact, in particular from the view to the northeast from South Dowling Street. 55While the existing building and the approved rooftop extension for the staircase exceed the current height and floor space controls, this should not create an expectation that further contravention of these controls is justifiable. Although the extent of non-compliance with the proposed 9m height controls in the draft SLEP will be much less, the draft SLEP is not imminent or certain and little weight can be afforded to it. Similarly, the existing building is of a greater bulk and scale than the intact row of terraces to the north, and in my view, there is no justification for further reinforcement of the street corner. The applicants' 'bookend' argument relies on buildings of quite different form and function (warehouse on opposite side of Taylor Street and hotel on Oxford Street) and has little merit in the circumstances. 56With respect to the applicants' argument that creating additional residential capacity for their future family is in the public interest I agree with the council that the applicants own a large building capable of being used in many ways, and purchasing a building in a heritage conservation area comes with constraints. The site view clearly showed a wide range of residential options in the vicinity. In this regard, I consider the private interests of the applicants do not outweigh public interest in retaining the integrity of the conservation area and the streetscape. 57As a consequence of the forgoing, I find that the proposed roof addition does not satisfy the provisions of the CoS Heritage DCP and in that regard does not satisfy cl 22 of SSLEP as the proposal is not sympathetic to and will detract from the heritage conservation area and heritage streetscape. Therefore, the roof top addition is refused.

Juliet balconies 58The proposed Juliet balconies off the bedroom will require the removal of the original windows. In my opinion, this is at odds with clauses 4.3(2) and (3) of the CoSHDCP. These clauses go to the removal of detracting elements and retaining, reinstating, or at the very least, not significantly altering facades. Clause 4.3(3)(g) states that alterations to contributory buildings must: respect the pattern, style, dimensions of original windows and doors. It would seem that contributory buildings are so nominated as they retain many original features; to remove the original windows and replace them with new elements, although potentially reversible, would seem counter to the intent of that clause. The Juliet balconies are off a bedroom and not a living room, the living room has access to the existing original balcony; therefore, there is no argument that the balconies would enhance the amenity of a living area in the absence of any other access. 59While the applicants and Ms Erdelyi consider that the addition of the balconies will enhance the appearance of the Taylor Street faade, I do not consider this to be a sufficient reason to justify deviating from the intent of the CoSHDCP as it relates to contributory buildings. 60Therefore, as a consequence, the Juliet balconies are refused. 61As the principal components of the development are refused, the Orders of the Court are: (1)Appeal 10574 of 2011 is dismissed. (2)Development application D/2011/134 for extensions and alterations to 333 South Dowling Street Darlinghurst is determined by refusal. (3)All exhibits except exhibits 1,3 and 4 are returned.

J Fakes 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: 24 October 2011

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