Knudsen v Randwick City Council

Case •

[2006] NSWLEC 193

•

21 April 2006

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:    Knudsen v Randwick City Council [2006]  NSWLEC 193

PARTIES:
APPLICANT
Russell Knudsen and Anne Knudsen

RESPONDENT
Randwick City Council

CASE NUMBER:      10502  of        2005

CATCH WORDS:      Development Application

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Randwick Local Environmental Plan 1998

CORAM:        Brown C

DATES OF HEARING:        01/02/06, written submissions 12/04/06

DECISION DATE:    21/04/2006

LEGAL REPRESENTATIVES

APPLICANT
Mr K Webber, solicitor
SOLICITORS
Wilshire Webb

RESPONDENT
Mr A Pickles, barrister
Ms T Litt, solicitor
SOLICITORS
Bowen & Gerathy

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

21 April 2006

10502 of 2005    Russell Knudsen and Anne Knudsen v Randwick City Council

JUDGMENT

  1. COMMISSIONER:  This is an appeal the refusal of Development Application 1096/04 by Randwick City Council (the council) for alterations and additions to an existing dwelling at 29 Park Avenue Randwick (the site). 

  1. The proceedings were heard as an On Site Hearing on 1 February 2006 however an adjournment was granted for the preparation of amended plans and new shadow diagrams.  These plans were filed on 31 March 2006 and are marked Exhibit E.  The parties given until 12 April 2006 to make any further submissions, including amended draft conditions.  The amended draft conditions were filed on 12 April 2006 and are marked Exhibit 7. 

    The site

  2. The site is Lot 1 in DP 219956.  It has an approximate frontage of 9.215 metres and an approximate depth of 40.75 metres.  The survey plan shows a total site area of 389.3 square metres.  There is a fall from the rear towards the street frontage with the dwelling located above footpath level. The existing dwelling is single storey with an outbuilding in the rear yard. 

  1. The surrounding development contains a mixture of dwellings including large mansion style dwellings, single and two-storey terrace freestanding and semi-detached dwellings, attached terrace style dwellings and multi-unit housing development.

    The proposal

  2. The proposed alterations and additions provide for a first floor addition comprising three bedrooms and two bathrooms within additional area of 95 square metres.  Some minor additions to existing windows are proposed to the existing dwelling at ground level.

  1. The amended proposal still provides for three bedrooms and amenities on the first floor level but adjusts the floor plan and removes a section of the first floor adjoining 31 Park Ave.  Some minor amendments are also made to the ground floor area.

    Relevant planning controls

  2. The site is zoned 2A (Residential A Zone) under Randwick Local Environmental Plan 1998 (LEP 1998).  The proposed use is permissible within this zone.

  1. Development Control Plan - Dwelling Houses and Attached Dual Occupancies (the DCP) also applies. The relevant clauses are Part 3.1 - Solar Access, Part 4.2 - Floor Area, Part 4.3 - Height, Form and Materials and Part 4.4 - Building Setbacks.

    The issues

  2. The council filed a Statement of Issues containing 4 issues.  These can be grouped into the following main areas:

    1) whether the proposed additions will have an unacceptable impact on 31 Park Avenue in relation to overshadowing and bulk brought about by breaches of the DCP (Issues 1, 2, 3 and 4) and,

    2) whether the proposed development will have an unacceptable impact on the streetscape (Issues 1 and 2).

    The evidence

  3. The parties agreed to the appointment of Mr Stuart McDonald as the Court appointed town planning expert.  In his assessment of overshadowing, Mr McDonald relied on an Overshadowing and Solar Access Evaluation Report by Mr Stephen King for the applicant.

  1. Local resident Mr Robin Gandevia of 31 Park Avenue provided evidence on site and an inspection was made of his property.  The adjoining property at 33 Park Avenue was also inspected.

    Impact on 31 Park Avenue

    The original proposal

  2. The most significant impact on 31 Park Avenue is the overshadowing from the proposed additions onto the dwelling.  The windows are affected by the overshadowing are along the northern elevation and relate to a living room, a dining room, a bathroom and kitchen.

  1. The DCP provides an objective at cl 3.1.1 "to protect solar access enjoyed by neighbours".  Performance Requirement P9 states, in part, that alterations and additions to existing buildings "minimises loss of solar access to neighbouring properties”.  Solar access is to be maximised to north facing windows of living areas …."  The DCP contains Preferred Solutions to the issue of solar access and S9 states:

    North facing windows to living areas of neighbouring dwellings receive at least 3 hours of sunlight over at least part of the surface between the 9.00 am and 3.00 p.m. on 21 June.  If less than three hours is available under current conditions, access to sunlight is not reduced.

  2. Mr King’s report shows overshadowing of all windows in the northern elevation of 31 Park Avenue on 21 June although the additional overshadowing attributable to the proposed extension occurs in the middle of the day when it affects the top portion of the kitchen window.  Mr King estimates that the existing sunlight patch is approximately 30% of the windows surface area. The living room window will also suffer a reduction in sunlight with both windows below the DCP requirement of 3 hours.

  1. Pt 4.2.1 of the DCP provides a Performance Requirement for a floor space ratio (FSR) of 0.6:1 based on the lot size.  The proposal provides an FSR in the order of 0.66:1. 

  1. Pt 4.3.3 of the DCP provides a Performance Requirement for an external wall height that does not exceed 7 metres (S1), an external wall height to the rear that does not exceed 3.5 metres (S1) and a length of a second storey portion that is no greater than 12 metres at less than 1.5 metres from a southern boundary. The proposal provides for a maximum wall height of 7.13 metres above ground, the length of the second storey portion is 12.63 metres, with approximately 50% of this being setback below 1.03 metres or less, along the western section.

  1. Mr McDonald concludes that the proposed development results in an unacceptable impact on 31 Park Avenue because of the bulk, scale and height and the overbearing appearance.  Even though the height is not a substantial departure, Mr McDonald expresses the concerned that the height, combined with the setback below 1.5 metres for approximately 6.3 metres, stretching approximately 20 metres along the length of the smaller boundary at 31 Park Avenue has a considerable and unacceptable impact in terms of bulk and scale.

  2. The proposal also fails to comply, either wholly or in part, with the solar access requirement to the north facing windows of 31 Park Avenue.  Even though the individual breaches to the DCP are relatively small, the unusual physical and built relationship between the site and 31 Park Avenue make the cumulative impacts of the breaches significant. 

    The amended proposal

  3. The amended proposal provides for a similar wall height above ground but the length of the second storey portion has been reduced to 9.0 metres with a setback around 1 metre (or the setback of the existing dwelling) along the western section adjoining the dwelling at 31 Park Avenue.  The remaining length of 8.5 metres of the second storey portion is set back around 5.5 metres from the boundary.

  1. At the On Site Hearing it was agreed that the existing dwelling casts shadows over the windows in the north facing elevation of 31 Park Avenue at midwinter and did not satisfy the requirements in S9 of the DCP for solar access.  The Court directed that the amended plans were to address S9 in that, if less than three hours is available under current conditions, access to sunlight is not reduced.

  1. The amended plans provide detailed shadow diagrams showing the effect on the north facing elevation of the dwelling at 31 Park Ave at 30 minute intervals between the 9 a.m. and 3 p.m.  As a result of the amended proposal sunlight access to the adjoining property is marginally increased over the existing situation although sunlight has been reduced at certain times but increased at other times.  I accept that S9 is satisfied, as access to sunlight is not reduced.

  1. In response to the amended plans Mr Gandevia accepted that he would probably be no worse off at midwinter however there would be additional shadow cast between March and September.  To support this conclusion Mr Gandevia provides details from an architect showing the additional shadow cast at midday at the equinox, 14 April and 31 August.

  1. Even though Mr Gandevia’s shadow diagrams show increased level of overshadowing on the northern elevation of his dwelling, I am not convinced that the increased area of overshadowing is significant, at this time of the year, to warrant the refusal of the development application.  Importantly, the DCP requires any assessment of overshadowing to be undertaken on 21 June.  This logically reflects a time when solar access is most desirable, that is, at midwinter.  There was no dispute that the proposed additions create a marginally improved situation at this time.

  1. I also accept that the amended proposal satisfactorily addresses the concerns of Mr McDonald in relation to bulk and scale because of the reduction in length of the two-storey component adjoining the boundary with 31 Park Ave.

    Streetscape

  2. Pt 4.3 contains the following the relevant objectives:

to ensure developments are not excessive in height and scale but are compatible with the existing character of locality,
two ensure buildings enhance the predominant neighbourhood and street character.

  1. The area has a range of dwelling types and forms.  The two-storey street elevation would not be out of character in this context, particularly considering the general compliance with the height requirement and the similar form of development to the north.  I accept that the proposed development is consistent with the relevant streetscape objectives

    Conditions

  2. As I understand, the applicant raised no concerns with the councils draft conditions of approval.  I accept that the amended plans principally address the issue of loss of solar access to the adjoining property because this was the principal issue raised in proceedings however the amended plans do not provide dimensions or details normally expected for the additions proposed in this application.  It is appropriate that these detailed plans should be provided and form part of the approval.  I have amended condition 1 to reflect the need for the more detailed plans.

    Orders

  3. The Orders of the Court are:

    1) The appeal is upheld.

    2) Development Application 1096/04 for alterations and additions to an existing dwelling at 29 Park Avenue Randwick is approved subject to conditions in Annexure A.

    3) The exhibits are returned with the exception of the exhibits 7 and E.

    ____________
    G T Brown

Commissioner of the Court

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

2