In a recent decision where Dentons represented the Applicant, Blainey North and Associates Pty Ltd v Council of the City of Sydney [2024] NSWLEC 1684, the Court had to consider whether an addition to the top of a contributory heritage item terrace in Surry Hills, was an attic or a storey and whether the addition, together with other alterations, was appropriate having regard to heritage and design excellence.

Significantly, the Council argued that the proposed “upper addition” could not be characterised as an “attic” and was rather an additional “storey”, resulting in 3 storeys in breach of the 2-storey control in the Sydney Development Control Plan. The Applicant successfully defended this argument and was also successful on a merits assessment of the proposal on heritage and design excellence grounds.

Background

The proposal was for a number of alterations and additions to the subject terrace house, including, significantly the creation of a “small attic style addition” with a new skillion roof setback from Goodlet Street. Council disagreed with this characterisation of the attic and considered it to be a “second floor addition over the original front portion of the building”.

The significance of whether the addition was an attic or storey was that if it was an additional storey, the proposal would result in 3 storeys in breach of the Sydney Development Control Plan 2012 (SDCP) which required 2 storeys. Acting Commissioner Byrne identified the issues before the Court as follows:

1. Whether the Upper Addition was an attic, as characterised by the Applicant, or a storey, as argued by Council, - the Commissioner identified this as being a question of fact;
2. The proposed development’s compliance with the heritage impact provisions in the SDCP and the Sydney Local Environmental Plan (SLEP), and whether, if there was a heritage impact, the development consent should be refused; and
3. Whether the proposed development exhibited design excellence within the meaning of clause 6.21C of the SLEP such that the Court had the power to grant development consent.

Attic v Storey

The definitions of “attic” and “storey” are set out in the dictionary to the SLEP 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.”

Council argued that an attic needed to be contained “wholly within the roof space”, rather than comprising a partly new roof above. The Applicant’s proposal included alterations to replace the roof with a partly new skillion roof above the attic style addition.

The Court found that the addition was an “attic”, rather than a storey for the following reasons:

1. Reading the two definitions together, it was open to conclude that an attic is a smaller habitable space than a storey because of the express exclusion of “attic” in paragraph (c) in the definition of “storey”. The “inclusion of minor elements such as dormer windows and the like is of a broad compass and the proposed Upper Addition fixtures and fittings fits within this broad description”: at [23].
2. The Upper Addition was “creating habitable space with minor fittings and fixtures – a partly rebuilt roof does not necessarily detract from that”: at [29].
3. The Court concluded that clause 4.1.4.6(3) of the SDCP only applied if the Upper Addition was characterised as a storey, rather than an attic. The clause does not apply to attics: at [27].

The Commissioner considered that even if she were wrong and the Upper Addition should be characterised as an additional storey, she would still grant development consent having regard to the “guideline requirements” contained within clause 4.1.4.6(3) of the SDCP. The Court concluded the Council had adopted a “rigid approach” to the SDCP, rather than permitting flexibility and reasonable alternative solutions: at [33].

Heritage

The Court stressed that the heritage issue, pursuant to the heritage conservation clause 5.10(1) of the SLEP, rather than the storey issue, was determinative of the appeal.. The Court preferred the Applicant’s evidence concluding 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” : at [40].

The Court was satisfied that rather than adversely impacting the heritage conservation area as the Council contended, the proposed restoration and repair works would “enhance and conserve the twin terrace houses’… existing positive contribution to the streetscape”: at [41].

Design excellence

In considering whether the proposed development exhibited design excellence, the Court had regard to the jurisdictional precondition contained in clause 6.21C(2) of the SLEP.

The Court observed that the Council’s heritage evidence focused exclusively on whether the Upper Addition exhibited design excellence (and that it could not achieve design excellence because it was a three-storey building), rather than assessing whether the development as a whole exhibited design excellence which would have been of assistance to the Court: at [50].

The Court preferred the evidence of the Applicant’s heritage expert in finding that the “form and external appearance of the proposal will improve the quality and amenity of the public domain”. The Court observed that since its construction in the 1890s, the terrace had unsympathetic alterations which the proposal sought to remove. As a contributory item in a heritage conservation area, the Court observed the Applicant is limited in the changes it can make. The Court concluded the changes proposed exhibit design excellence by responding to the site opportunities and constraints.

Key points

• The creation of a habitable space with minor fittings and fixtures, even if it results in a partly rebuilt roof, may be characterised as an attic rather than a storey.
• Development control plans should be applied flexibly to allow reasonable alternative solutions.
• Design excellence of a whole proposal, rather than an individual part of the proposal, should be considered and assessed. Where the characterisation of a proposal is contested, as was the case here, the better approach is to consider the design excellence of both positions.