Causebrook & Anor v Ryde City Council

[2007] NSWLEC 742

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:    Causebrook & Anor v Ryde City Council [2007]  NSWLEC 742

PARTIES:
APPLICANT
Darrel and Margaret Causebrook

RESPONDENT
Ryde City Council

FILE NUMBER(S):   10732  of        2007

CATCHWORDS:       Development Application :- Alterations, solar and privacy impacts on neighbouring properties

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Ryde Development Control Plan

CASES CITED:

CORAM:        Hussey C

DATES OF HEARING:        26/10/2007

EX TEMPORE DATE:           26 October 2007

LEGAL REPRESENTATIVES

APPLICANT
Ms K. Gerathy, solicitor
of Home Wilkinson Lowry

RESPONDENT
Mr J. Stratti, solicitor
for Ryde City Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

26 October 2007

10732 of 2007     Causebrook & Anor v Ryde City Council

This decision was given extemporaneously.  It has been revised and edited prior to publication.

JUDGMENT

1. The appeal was lodged against council refusal of a development application for alterations and additions to the ground floor and a rear first floor, together with pergola for a dwelling situated at 42 Trelawney Street, Eastwood.

1. The main reason for the refusal concerned inadequate provision for storm water disposal, considering the land is relatively steep and falls away from the street. The council controls do not allow pumped stormwater discharge systems, particularly in the geotechnical conditions that prevail at this site.

1. Consequently, the applicant has undertaken negotiations with a downstream owner regarding acquisition of a drainage easement for stormwater disposal via a 1m wide easement to incorporate a 150mm dia. pipe. Whilst the negotiations have not been successful, council engineers now support this method of stormwater disposal.

2. Accordingly, the parties have agreed that consent orders can be made subject to a deferred commencement condition which requires the acquisition of the drainage easement.             

1. This option has been assessed by Mr D. Bewsher - consulting engineer, who says that the proposal for the downstream piping through No. 35 Buena Vista could be drilled with little risk of damage to the property. As I noted, the council engineers support the proposal on this basis.

1. However, other objections were lodged by the neighbouring owner, Mr Wehbe of 44 Trelawney Street.  These objections concern possible overshadowing and privacy loss due to overlooking from the proposed balconies, into areas of his new building, which is under construction at 44 Trelawney Street.

1. This objection has been satisfied by way of revision of the privacy screens on the balconies and the parties agree that this is satisfactory and can be covered by conditions of consent.  I accept this agreement is reasonable.

1. The other objection concerns adverse solar impacts along the side boundary north-facing windows. 

1. Mr Wehbe explained that the steep topography of the site imposed constraints on the overall height of his new dwelling, due to the sloping ground levels and restrictions on height. Consequently, the design of his dwelling included placement of a series of windows along the northern side of the living room to access natural light.  He indicated windows designated 1, 2 and 3 in the living room were of particular concern because they would not receive sunlight during the nominated daylight hours and cause disamenity.

1. Submissions were made that the overshadowing impacts had not been adequately assessed previously despite a number of references to those in the council reports.

1. However, the parties agreed that the shadow diagrams in exhibit D were representative and that windows 1, 2 and 3 on the northern wall at No. 44 would be shadowed and not comply with the provisions of clause 3.2.2. of the DCP

1. These controls in section 3.2.2 of the DCP provide performance criteria that buildings are to be sited and designed to ensure daylight to habitable rooms in adjacent dwellings is not significantly reduced, overshadowing of neighbouring secluded open spaces or main living area windows is not significantly increased. It also provides a number of controls; A, B and C, together with the statement that windows to north-facing living areas receive at least 3 hours of sun between 9am and 5pm on 21 June over a proportion of their surface.

1. At the hearing, the applicant’s house designer, Ms Schultz, said that she had considered the sensitivity of the additions to the existing dwelling in the potential conservation area context and had tried to minimise impacts on the neighbouring property No 44, even though the final building design was not available at that time.  As such, the building complies with the overall council controls and it provides an additional side boundary along the common boundary, which is 3.1 m as against the minimum requirement of 1.5 m.

1. Mr C Young, council’s town planner, was involved in the assessment of the proposal and his evidence regarding the shadowing on the nominated windows 1, 2 and 3 is that it is not significant and he maintains his support for consent orders.  In particular, he says that due allowance has to be given to a number of points, which are:

   1.The east-west orientation of the land, which generally restricts solar access along side boundaries. 

   2.The topography of the land, which imposes constraints on the building. However, the subject proposal is a complying development and it satisfies the existing building zone criteria and height controls.

   3.Further, he considers that the subject living room is orientated to the east with its main windows and door focusing on the rear pool area.  As such, windows 1, 2 and 3 are side windows and even though they are shadowed, nevertheless this living room achieves reasonable solar access. Therefore he does not consider the shading is significant in the circumstances.

2. My assessment is that having considered the evidence, I initially accept Ms Schultz’s evidence that the proposed extensions have been carefully designed to complement the existing dwelling and to suit the steep site topography.  Accordingly, the first floor roof has been restricted to the height and ceiling controls which somewhat limits the amenity of these rooms.

1. However, the proposal still results in the complying development and it provides the additional side boundary set back along the common boundary with No 44.  Presumably, a further reduction in the roof/ceiling height would improve the shadowing impacts on windows 1, 2 and 3, but I consider this would significantly compromise the amenity of the proposal.

1. The only planning evidence presented to the court was from Mr Young who maintained his position that the proposal was reasonable in terms satisfying  the provisions of clause 3.2.2 of the DCP.

1. In the circumstances of the case, I accept Mr Young’s opinion that when due regard is given to the site topography and the east-west orientation of the lot, that the discretion can be exercised for non-compliance with the provisions of clause 3.2.2.

1. Importantly however, I consider that these windows 1, 2 and 3 are side secondary highlight windows and that this living room is primarily focused to the east, where it has satisfactory solar access. So that in the circumstance of this case I rely on Mr Young’s opinion that the shading of the highlight windows is not such to warrant significant modification or refusal.

1. Notwithstanding this, I have considered Mr Wehbe’s evidence that the solar access to these windows could be improved if the windows were permitted to be raised.  As the building progress would still allow this, I note that the applicant has indicated that they have no objections to this modification.

1. This appears to be a reasonable compromise and balance in the circumstances.  In the ultimate, I give determining weight to the proposals complying building envelope, relatively generous provision of side boundary setback and overall satisfaction of the planning controls, in granting the consent orders. 

1. I am also satisfied from the engineering evidence that the proposed stormwater control disposal via the 1m easement through No. 35 Buena Vista is consistent with council’s DCP and reasonably necessary for this development to proceed.

1. Therefore the court makes the orders by consent:

   1.The appeal under section 97 of the Environmental Planning and Assessment Act is upheld.

   2.Development Application number 583/2005 lodged with the respondent council of 1 July 2005, to demolish the garage and to carry out alterations and additions to the existing dwelling at lot 33 DP 16433B number 42 Trelawney Street, Eastwood, 2122, is approved subject to conditions part 1.12 part 2.42 in Annexure A.

   ___________________

   R. Hussey
   Commissioner of the Court

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