Geotone Pty Limited v North Sydney Council

[2015] NSWLEC 1138

Land and Environment Court

New South Wales

Medium Neutral Citation:	Geotone Pty Limited v North Sydney Council [2015] NSWLEC 1138
Hearing dates:	16-17 April 2015
Decision date:	12 May 2015
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION: residential flat building; non-compliance with development standard for building height; impact on views and solar access
Legislation Cited:	North Sydney Local Environmental Plan 2013; State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development; Environmental Planning and Assessment Act 1979;
Cases Cited:	Wehbe v Pittwater Council [2007] NSWLEC 827
Texts Cited:	North Sydney Development Control Plan 2013; Residential Flat Design Code
Category:	Principal judgment
Parties:	Geotone Pty Limited (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: Ms S Duggan SC (Applicant) Mr S Nash (Respondent) Solicitors: Mr M Sonter, Gadens (Applicant) Ms C Morton, Sparke Helmore Lawyers
File Number(s):	10725 of 2014

Judgment

1. Geotone Pty Ltd lodged Development Application DA/192/14 with North Sydney Council on 16 June 2014 seeking consent to demolish two existing dwellings and construct a residential flat building at No 3 Raymond Road and No 3 Anderson Street, Neutral Bay.

2. The council had not determined the application within the prescribed period and Geotone is appealing its deemed refusal.

3. The issues in the case relate to building height, solar access/overshadowing, view loss, visual impact and landscape area.

The site and locality

4. The site comprises two adjoining allotments, the lower one in terms of topography having a frontage of 28.09m to Raymond Road and the higher lot, a frontage of 7.745m to Anderson Street. Total area is approximately 1,157sqm and the site is wedge-shaped. The land falls from north (Anderson Street) to south with a level difference of around 8.3m.

5. The western boundary, which adjoins a pedestrian path that links the two streets, is 45.84m and the eastern boundary is 50.62m.

6. Detached dwellings are located on each lot with a garage at the Anderson Street frontage of the site.

7. Residential flat buildings adjoin the site to the east (No 1 Anderson Street) and west beyond the laneway (No 5 Anderson Street) with both buildings constructed towards the Raymond Road section of the site to take advantage of the views to Sydney Harbour and the area adjacent to Anderson Street used for vehicle access and at grade parking. Other residential flat buildings (RFBs) are located to the west along Anderson Street with four detached dwellings to the north east of No 1 Anderson Street. These dwellings front Wycombe Road and enjoy pedestrian access from Anderson Street.

8. The Neutral Bay Club, a registered club that includes tennis and bowling facilities is located opposite the site in Anderson Street and Ilbery Reserve is located to the north of the club premises. A mix of dwelling houses and RFBs are located along Raymond Road.

Background and the proposal

9. Since the appeal was lodged, a conciliation conference was facilitated by another Commissioner of this Court. As a result of discussions held during that process, the applicant prepared and was granted leave by the Court to rely on amended plans. Those plans, Exhibit A provide for:

• Construction of a five level residential flat building over two basement levels of carparking, both of which are accessed separately off Raymond Road;

• Basement level 2 – 11 car parking spaces, garbage store and bicycle parking area;

• Basement level 1 – 13 car parking spaces, bicycle parking area, WC, garden store and rainwater tanks/pump room.

• Level 1 – 1 x 3 bedroom and 1 x 1 bedroom unit with associated terraces and individual storage areas for each unit;

• Level 2 – 2 x 1 bedroom and 1 x 3 bedroom units;

• Level 3 – 2 x 1 bedroom, 1 x 2 bedroom and 1 x 3 bedroom units;

• Levels 4 and 5 – 1 x 3 bedroom and 1 x 2 bedroom units;

10. All levels would be connected by a lift and stairway. The building would be setback 1.5m from the adjoining laneway with varying setbacks from 1.66m to 2.9m from closest sections of the building and the common boundary with No 1 Anderson Street. A minimum setback of 8.19m is provided to Anderson Street.

11. The lower three residential levels extend to within 6.073m of Raymond Road increasing to 16.885m at the western boundary due to the irregular alignment of the front boundary with the centrally located balcony of the front unit extending 3.6m into that setback. The upper two levels are setback a further 6.6m however a balcony reduces that setback to 3m across the eastern section of the building.

12. A development consent has been issued for the construction of a RFB on No 3 Raymond Road (existing consent). According to the evidence the approved built form would sit forward of and higher than the proposed building on that lot.

The planning controls

13. The site is zoned R4 High density residential pursuant to North Sydney Local Environmental Plan 2013 (LEP). RFBs are permitted with consent in that zone. Clause 1.2 of the LEP contains the aims of the plan and clause 2.3 requires the consent authority to have regard to the objectives of the zone when determining a development application. The objectives of the R4 zone are:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To encourage the development of sites for high density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.

• To ensure that a reasonably high level of residential amenity is achieved and maintained.

14. Part 4 of the LEP contains principal development standards with clause 4.3 Height of Building relevant to the contentions of the case. The Height of Buildings Map provides a 12m height limit for the site.

15. Clause 4.6 of the LEP provides for exceptions to development standard and the applicant relies on these provisions as the height of building exceeds 12m.

16. The site is not a Heritage Item or within a Heritage Conservation Area. The issue of whether the dwelling on No 3 Anderson Street should be listed as an item of environmental heritage has been raised in the submissions received by the council in response to exhibition of the proposed development however the council does not raise it as a contention in the case. The council had imposed an Interim Heritage Order on the site however that Order was revoked on 27 June 2014.

17. It is in the vicinity of two listed items, one at the corner of Raymond Road and Thrupp Street (No 22 Thrupp) and No 82 Wycombe Road, one of the four detached dwellings to the north of the site. Those four dwellings are also located within the Cremorne Heritage Conservation Area (CHCA), at its western extent. Accordingly, the provisions of clause 5.10(5) of the LEP apply. That clause is in the following form:

The consent authority may, before granting consent to any development:

(a) on land on which a heritage item is located, or

(b) on land that is within a heritage conservation area, or

(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

18. The council has not raised any contention in relation to the impact of the development on either item or the CHCA.

19. North Sydney Development Control Plan 2013 (DCP) applies to the site and the relevant sections are Part A Introduction. Part B Section 1 Residential Development. Clause 1.7.2 provides for a written justification to accompany an application that proposes to vary key built form controls. Key built form controls are listed in clause 1.8 and include setback, site coverage and landscaped area/unbuilt upon area controls. The means of determining whether consent should be granted where a development seeks to vary the controls aligns closely with the provisions of clause 4.6 of the LEP. The applicant has prepared a written submission in terms of the key controls for landscaped area and unbuilt upon area in ss1.5.6 and 3.4.5 and to the setback controls in ss1.4.6, 1.4.3 and 3.3.6 (Exhibit H).

20. Other controls relevant to the contentions are contained in State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP65) and the associated Residential Flat Design Code (RFDC).

The issues

21. The contentions in the case are the exceedance of the building height development standard and associated impacts on overshadowing and visual impact, in particular overshadowing of units 1 and 4, No 5 Anderson Street; view loss; non-compliance with DCP control for building height plane (BHP) and associated visual impacts; non-compliance with the landscaped area control; inadequate solar access provided to proposed units 5 and 8.

The evidence

22. The hearing commenced onsite with evidence heard from a number of objectors to the development. The view included inspection of the interior of some of the units within the adjoining site No 1 Anderson Street to assess the impact of the proposed building on views enjoyed from those properties. The following is a summary of issues raised:

• View loss;

• Building is too large, exceeds height controls, has inadequate setbacks and will adversely affect amenity of adjoining properties through loss of visual and acoustic privacy and overshadowing;

• The proximity of the western wall to the side boundary and its solid form is uncharacteristic of the streetscape and inappropriate in form and does not address crime prevention/safety to users of the adjoining laneway;

• No 3 Anderson Street should be retained due to its heritage significance;

• Concerned the extent of excavation will impact adjoining properties;

• Traffic and parking;

• Development would create a wind tunnel, affect ground water and trees on the site;

• Development will impact on solar access to sunroom (unit 4/5 Anderson Street).

23. At the commencement of the hearing, the applicant proposed further amended plans that deleted the balcony that protruded across the front of levels 4 and 5 and recessed that balcony within the main building envelope through a reduction in depth of the living area of units 11 and 13. The effect of that change is to reduce the length of building at the top two levels by 3.6m. The applicant sought and was granted leave to rely on these amended plans (Exhibit L) subject to the payment of costs pursuant to s97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

24. Expert planning evidence was heard from Mr A Darroch for the applicant and Mr B Brown for the council. They prepared a Joint Report (Exhibit 2) and a Supplementary Joint Report (Exhibit 3) that addressed issues raised on site and the amended plans. They agree that the view sharing achieved by the amended plans is now acceptable and this contention is resolved.

Solar access

No 5 Anderson Street

25. The contentions in relation to solar access are whether the impacts of the development on solar access enjoyed by adjoining properties, specifically units 1 and 4 at No 5 Anderson Street. The council did not press the other units as it was agreed they either received the 2 hours midwinter solar access required under the DCP or already received less and the development would not alter that situation.

26. The relevant controls are found in the Rule of Thumb for Daylight Access under the RFDC which provides:

Living rooms and private open spaces for at least 70 percent of apartments in a development should receive a minimum of three hours direct sunlight between 9am and 3pm in mid winter. In dense urban areas a minimum of two hours may be acceptable.

27. Provisions 1 and 2 of Control 1.3.7 of the DCP provide:

P1   Developments should be designed and sited such that solar access at the winter solstice (21st June) provides a minimum of 3 hours between the hours of 9.00am and 3.00pm to:

(a) any solar panels;

(b) the windows of main internal living areas;

(c) principal private open space areas; and

(d) any communal open space areas

Located on the subject property and any adjoining residential properties.

P2   Despite P1 above, living rooms and private open spaces for at least 70% of dwellings within a residential flat building should receive a minimum of 2 hours of solar access between the hours of 9.00am and 3.00pm at the winter solstice (21st June).

28. The experts agreed that the living room/balcony of unit 1 (the lowest level southern unit) currently receives 3 hours sunlight to its living area and 0 to its balcony on 21 June but disagreed on the extent of loss to living areas. Unit 4 (central level, north) receives 2 hours to its living area and 3 to its balcony and this would also reduce to 1.25 and 2.5 hours respectively.

29. Further amendments were proposed to the plan that reduced the ceiling height above the centralised stairway by 600mm in an attempt to reduce the shadow impact. The applicant provided a draft condition that could be imposed if the changes were deemed appropriate by the Court. Those plans and condition (Exhibits J and K) were considered by the experts and it was agreed that the living room of unit 4 would receive sun from 9.15am to 10.30 with the sun first hitting the window at 9am. Mr Brown considered the quantum of sunlight was not sufficient to include in the calculations and that the change proposed, whilst beneficial, did not alter his position that the living room would only receive 1.25 hours sunlight, which was unacceptable and non-compliant with the controls.

30. Mr Darroch says the living room window would receive sunlight from 9am to around 11.15am and if the sunroom, (a room off the main bedroom according to evidence provided on site by the owner of the unit) were to be included, that room would begin to receive sun around 9am and get more than 4 hours solar access. He considered that would be satisfactory and consistent with the controls.

31. In relation to Unit 1, Mr Darroch says the living area receives sun some time before 10.45am until after 12.30pm as he has regard to the sun also hitting the western window whereas Mr Brown says that it is from 10.45am to 12noon as he does not include that window and considers that it is appropriate to consider both the quality and quantity of sun available. Whichever figure is adopted, 2 hours sunlight would not be achieved.

32. It is common ground that the solar access to units 2, 3, 5 and 6 in 5 Anderson Street is satisfactory. There will be no change to units 5 and 6. Only units 2 and 4 receive at least 2 hours solar access to both the living and balcony areas. Unit 2 will receive 2 hours to both the living and balcony areas (currently 3 to each) with unit 3 receiving 2 hours to its living area whereas it is currently 3.5 hours. Its balcony does not receive any sunlight and this does not change.

33. The disagreement between the experts also arose from how many units within No 5 were required to meet the controls. There are 6 units in that building. 70% of 6 equates to 4.2 units. Mr Brown says 5 need to be compliant whereas Mr Darroch says only 4. That is because Mr Brown says that 4 units represent only 66.66% and not 70% whereas Mr Darroch rounds down the number. Mr Brown did agree that the inclusion of the sunroom to unit 4 would result in a reasonable amount of sunlight to that unit however he says the area should not be included as living areas are more important.

Within the development

34. The experts agree that 9 of the 13 units are required to achieve the 70% solar access controls in the RFDC and DCP and that units 3, 6, 7, 9, 10, 11, 12 and 13 achieve those controls and units 1 and 2 do not. Where they disagree is whether units 4, 5 and 8 achieve the required 2 hours solar access. Unit 5 is the southern unit on level 2 and units 4 and 8 are one of two east facing centre units on levels 2 and 3. The experts agree that 4 and 8 achieve similar solar access.

35. Mr Darroch says that in the case of unit 5 which faces the view to the south it is provided with a north-facing window to the living room which is in sun in midwinter from 11am through to 1pm and as such would achieve the 2 hours of solar access. The window has an area of 5sqm and is in unobstructed sun from 11.30am to 12.30pm. Where the apartment enjoys iconic views to the south and is overlooked by its eastern neighbour he considers it is quite reasonable to locate the private open space to the south where the amenity is greatest. The unit design achieves the RFDC objective of providing 2 hours of sun in mid-winter to the occupants of the unit in their living space. It is not considered that the rule of thumb is conjunctive and requires the solar access to both living room and private open space but quite reasonably to one or the other so that the occupant can choose to enjoy the sunshine where available.

36. Mr Brown says for unit 5 that adequate solar access is provided to the living room window between 11.15am and 12.45pm and either side of that time only small areas of the window receive sun that would not be enough to reasonably sit and enjoy it with the open space area receiving no sun so not meeting the DCP requirements.

37. In regard to unit 8 Mr Darroch says the unit has a north facing balcony to take advantage of the solar access and the sun is on the balcony and the living room glazing at 10.30am and remains on the glazing until 12noon. The sun then remains on the balcony until after 1pm. This is more than 2.5 hours on the balcony as well as 1.5 hours on the living room glazing so achieves the RFDC objective of providing 2 hours of sun in mid-winter to the occupants of the unit in their living space.

38. Mr Brown says that adequate solar access is provided to the private open space area of unit 8 between 10.45am and 12.45pm and at no time is there a reasonable amount of light hitting the living room window so this apartment does not meet the DCP requirements. He acknowledges the difficulty in complying with solar access requirements on this site which has a south facing slope with views and a narrow northern aspect however notes that because the proposal is excessive having regard to other relevant controls and impacts neighbours and the public domain he is of the view that a reduction in floor space and an amended design could result in achievement of the required solar access standards.

Visual Impact

39. The experts disagree as to whether the objectives of the Height, BHP and RFDC building separation have been met and whether the visual impact of the proposal is acceptable.

40. Mr Darroch says that the breach to the building height control arises from a reallocation of the massing in a more skilful design in order to reduce the view impacts of a complying scheme on the occupants of the neighbouring properties. He says the consideration of views and resultant solar access has shown that on balance the height non-compliant proposal is a better planning outcome. Consideration of the context within the R4 zone shows that none of the existing buildings satisfy the RFDC building separation or the BHP envelope controls and the site is the last remaining in-fill development site in this part of the R4 zone. He also notes the existing consent for No 3 Raymond Road includes 1500mm setbacks to the western boundary and extends for more than two thirds of that boundary or 16m.

41. The proposal amalgamates two sites and steps up the site and Mr Darroch says that this fact and the much increased front (southern) and rear (northern) setback are consistent with the siting and orientation of the surrounding buildings in the R4 High Density zone. The proposal is articulated on the western elevation through the plan, stepped elevation, choice of materials and then screened on the boundary. The public laneway provides additional separation along this frontage with boundary planting on both sides of the walkway. He concludes that the proposal is not only consistent with its context but a more considered and superior design outcome to its neighbours and near neighbours in terms of visual impact on the western facade.

39. In regard to the eastern elevation, Mr Darroch says it is resolved in a similar manner but with a significantly greater level of setback and articulation in the same manner as the surrounding buildings in the R4 zone, and, as the neighbouring buildings, is stepped on one elevation and flat on the other. The proposal consolidates the landscaped area and planting in the front and rear setback consistent with the surrounding neighbours and where the greatest advantage is achieved in terms of streetscape and view retention. He considers the large setback of other buildings in Anderson Street will, in the future, be utilised for further development and therefore, the setback proposed would be consistent with those sites when the development potential is realised.

40. Mr Brown says the proposed design has unacceptable visual impact because the length of the building wall on the western elevation is around 45m and the vast majority of that wall is setback 1.5m from the western boundary, the minimum permitted under the DCP but also subject to the BHP control. The only articulation is the additional 600mm setback on the lift/stair core and the stepping of the building at the southern end. Whilst the proposed privacy louvres and landscaping provide some visual relief they do not adequately break down the bulk and scale of the form when viewed form the adjoining properties to the west or the public domain of Anderson Street and the pedestrian path along the western boundary.

41. The objectives of the LEP height control and the DCP BHP control are not met according to Mr Brown who says this broadly relates to two issues, compatibility with character and the relationship with adjoining properties. He says the land visible from Anderson Street in the vicinity of the site is the visual catchment and that is the area of concern. The area has an open character complemented by the substantial street trees and planting on the site. The block contained by Anderson Street, Phillips Street, Raymond Road and Wycombe Road is predominantly zoned R4 with the exception being to the north of No 1 Anderson where there are four R2 zoned parcels which contain substantial dwelling houses. On the remaining land there are 8 apartment buildings. Of these the building at the corner of Wycombe Road (No 88) to the north of the site and the buildings at 7 and 9 Anderson Street could be characterised as ‘tower’ buildings. These are buildings that have a height of 7 – 9 storeys, have little façade articulation or stepping in height and more generous setbacks. The other buildings are 2 – 4 storeys and are more articulated and tend to step with the topography. In all but one case (No 5 Anderson) the side setbacks appear greater than 3m and provide for planting between buildings. The setbacks to Anderson Street are variable however the two buildings adjoining the site have very large setbacks. This increases the prominence of the subject building which has a considerably lesser setback.

42. Mr Brown says the desired future character (DFC) is also a relevant consideration and, whilst the DCP provisions do not provide much assistance in the consideration of the contention, it does state that development should be carefully designed to follow the topography of the land, with buildings on sloping sites. Whilst the proposed building does step down the slope there is only one step above ground level and this is a contributing factor to the unacceptable visual impact of the proposal. Compliance with the LEP height control would result in an additional ‘step’ in the building at the upper level of the southern part of the building. He says the two adjoining buildings provide the best guidance to the assessment of an appropriate building form.

43. The proposal has a much greater footprint, considerably less setback to Anderson Street and because the adjoining buildings have at grade carparking, Mr Brown says the majority of the proposed building bulk comprises GFA. He concludes the building is much larger and out of keeping with the character of its neighbours, is an overdevelopment of the site and will have unacceptable visual impacts on the neighbouring properties and the public domain.

Landscaped Area

47. The experts agree that the required landscape area is 40% or 464.79sqm and the proposed landscaped area comprises 37.35% or 434.03sqm.

48. Mr Darroch says the area provided is the result of the building being pushed back, northwards on the site to minimise view impacts for the occupants of adjoining buildings, the existing consent provided for a building much closer to the Raymond Road frontage. He notes that the area above the ramps to the garage areas cannot be technically be considered as landscaped area despite it being treated and read as such with a soil depth of 600mm to 800mm which can support the required planting (DCP excludes landscaping located above a basement or on the roof of a building). If that area was included, given its function and purpose it would provide a further 107sqm of landscaped area and increase the provision to 46.6% or 541.61sqm which is comfortably in excess of the required 40%.

49. Mr Brown says the non-compliance with the area standard is further indication that the proposal is an overdevelopment of the site. He also says there is an issue with the nature in which the landscaped area has been distributed on the site, with the majority of the area provided at the southern end of the building where it does little to provide a buffer between the building and its neighbours and therefore does not meet the objectives of the control.

Conclusion and findings

50. For consent to be granted, I must be satisfied that the applicant’s written request that seeks to vary the height of buildings development standard meets the requirements of clause 4.6(3) of the LEP and the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. I must also have regard to those matters the Director General would consider in determining whether to grant concurrence to the exception. Clause 4.6(3) is in the following form:

(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

51. Preston CJ, in Wehbe v Pittwater Council [2007] NSWLEC 827, established a number of ways of determining whether compliance with a development standard is unreasonable or unnecessary in the circumstances of the case. The most common approach is to establish that compliance with the objectives of the control is achieved notwithstanding non-compliance with the particular standard.

52. The objectives of the height of buildings development standard are:

(a) to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient,

(b) to promote the retention and, if appropriate, sharing of existing views,

(c) to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development,

(d) to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings,

(e) to ensure compatibility between development, particularly at zone boundaries,

(f) to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area.

53. The amended plans reduce the extent of breach of the building height development standard however a part of the building would still exceed the control. That is the section of the building from the southern wall of level 5 to the northern wall where the height standard is met. The extent of variation is a maximum of approximately 1.5m to the top of roof with the lift overrun around 2.5m maximum. The top of roof would be constructed at RL 85.37 and top of lift overrun at RL86.35. The area forward of the southern wall of level 5 is compliant and between 3 – 4.5m below the 12m development standard.

54. Mr Darroch prepared a written submission as required under clause 4.6 of the LEP and this forms Appendix 5 to Exhibit 2. It argues the development steps down the site however to ensure view sharing, the height is breached by pushing the bulk of the building further back into the site to retain existing views from adjoining development. I accept the submission that the proposal is consistent with objectives a and b.

55. In relation to objective c, the submission acknowledges that the increase in height has a shadow impact on 5 Anderson Street, particularly units 1 and 4 as discussed above. Mr Darroch says that the proposal minimises any overshadowing for the neighbouring property and that the public areas will continue to receive satisfactory exposure to sky and sunlight therefore meeting the objective.

56. When assessing whether the objective is met, I must be satisfied that the development is consistent with the objective that requires solar access to existing dwellings to be maintained (emphasis added) despite the non-compliance with the height control.

57. It is clear from the evidence that solar access to the balconies and living areas of the adjoining development at No 5 Anderson Street will be reduced as a result of the development. What is therefore important is ascertaining the extent of the overshadowing caused by the additional building height. View from the sun diagrams (Exhibit C) have been referenced by the experts and additional detail provided through Exhibit J with the changes proposed to the stair roof. It is clear that the additional building height above the 12m height development standard reduces the solar access available to the adjoining dwellings. Therefore the solar access is not maintained to those dwellings and the objective is not met. For access to be maintained, solar access would have to be kept to the same level as is currently received. Not only is the access reduced, it is reduced below the standard that the council’s planning controls establish as a minimum requirement.

58. I do not accept Mr Darroch’s opinion that the terms of P2 in clause 1.3.7 of the DCP and the RFDC provisions for daylight access are not conjunctive. Both clearly require solar access to habitable rooms and principal private open spaces achieve a minimum of two hours direct sunlight if the area is in a dense urban area. I accept the site is within a dense urban area and therefore the lesser provision would apply than the three hours also referenced.

59. Because the additional building height results in a diminution rather than maintaining solar access to units at No 5 Anderson Street as discussed above and that loss results in less than two hours sunlight being available, objective c of the development standard is not met.

60. Objective d requires the maintenance of privacy and I am satisfied that the design of the proposed building adequately addresses privacy to existing dwellings and those that would be contained within the building.

61. The development, whilst not at a zone boundary is in close proximity to the zone boundary with an R2 zone that applies to four lots to the east. A 5 storey RFB separates the site from the dwelling houses in that zone and a four storey RFB (No 5) adjoins the site to the west. Whilst the adjoining buildings are setback from Anderson Street, I am satisfied that the proposed development, presenting as a 4 storey building to that street, would be capable of sitting in harmony with the development in Anderson Street. In relation to the development in Raymond Road, the building would present as a part 3 and part 5 storey building with setbacks that are also compatible with the streetscape. The scale and density of the development is also consistent with the character of the area which is mixed in terms of building height, density and scale. Accordingly, I am satisfied that objectives e and f are met.

62. The clause 4.6 written objection relies on the improved view impacts comparing the development to that approved under the existing consent for No 3 Raymond Street and the better planning outcome for the occupants and neighbours said to arise in terms of view loss. For that reason, Mr Darroch concludes the building form, bulk and scale is consistent with the DFC so compliance with the standard would be unreasonable and unnecessary in the circumstances of the case. Failure to set aside the standard would, he says, give rise to an inappropriate building form.

63. For the reasons that I have stated above, I do not consider that the objectives of the zone are met and accordingly, the first test in Wehbe is not met. I am not in that instance satisfied that compliance with the development standard for building height is unreasonable or unnecessary as it does not satisfy the objectives of the control nor does it proffer an alternative means of achieving the objective.

64. Having regard to the zone objectives, I am satisfied that the first two are met, the third is not relevant to assessment of this application and, because of my findings in relation to solar impact, I am not satisfied that the amenity of the surrounding area is not compromised nor will a reasonably high level of amenity be maintained to the adjoining property.

65. In relation to the other tests in Wehbe, I have no evidence and am also not satisfied that the underlying objective or purpose of the development standard is not relevant to the development, nor would the underlying objective or purpose be defeated or thwarted if compliance was required. There is no reason to establish the zoning of the land is unreasonable or inappropriate. Accordingly, having regard to the written request I am not satisfied that it has established that compliance with the development standard for building height is unreasonable or unnecessary in the circumstances of the case.

66. For that reason, the application must fail.

67. If I am wrong in the conclusion that I have reached on the jurisdictional test arising under clause 4.6(3)(a), I should proceed to consider the cumulative provisions of clause 4.6(3)(b) as both must be satisfied. I should also and conduct a merit assessment of the relevant matters under s79C of the Environmental Planning and Assessment Act 1979. This would ensure that if there were to be a successful appeal on my jurisdictional assessment, the parties could consider the outcome of that merit assessment to assist in ensuring that there could be a just, quick and cheap resolution of the matters as might arise on the remitter so as to facilitate achievement of the objectives of s 56 of the Civil Procedure Act 2005.

68. There is considerable merit in the design of the building that has placed its bulk towards the north of the site thereby satisfying the council’s contention on view loss. Other than for the failure to maintain solar access to the adjoining property, there would be sufficient environmental planning grounds to justify contravening the development standard. A development of similar footprint, bulk and scale would be appropriate if it could be redesigned to maintain the solar access to the adjoining property without any consequential adverse impacts arising by way of redesign.

69. Whilst this Court on occasions entertains the “amber light” approach, I do not consider that this would be an appropriate path in this case. Maintenance of 2 hours solar access to the adjoining property may be achieved in a number of manners and some may not be acceptable for a range of reasons. Alternately, the height of the building could be further reduced so as to be compliant with the development standard and different considerations would arise, those being the DCP controls.

70. Having regard to the two remaining contentions in the case and the evidence before me, I am satisfied that there are no adverse visual impacts arising from the proposed development and that adequate provision has been made for the landscaping of the site.

71. As the precondition to the grant of consent has not been met, the Orders of the Court are:

1. The applicant is granted leave to rely on amended plans, the Exhibit L plans, subject to payment of the respondent’s costs pursuant to the provisions of s97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

2. The appeal is dismissed;

3. Development Application DA/192/14 for demolition of two existing dwellings and construction of a residential flat building at No 3 Raymond Road and No 3 Anderson Street, Neutral Bay is refused consent.

4. The exhibits, other that exhibits A, F and L, are returned.

______________

Sue Morris

Commissioner of the Court

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Decision last updated: 12 May 2015