Moore v Northern Beaches Council

[2023] NSWLEC 1379

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moore v Northern Beaches Council [2023] NSWLEC 1379

Hearing dates:

26 June 2023

Date of orders:

19 July 2023

Decision date:

19 July 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development consent is granted to Development Application No. DA2021/1991 for demolition works and construction of a dual occupancy development including strata subdivision at 12 Birkley Road, Manly being Lot 5 Sec 12 in DP 2428, subject to the conditions of consent in Annexure A.

(3)   The exhibits are returned with the exception of the following exhibits which are retained 1, A and B.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy – overshadowing solar panels – overshadowing – visual privacy – visual bulk – heritage impact – streetscape – view loss – tree removal

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Manly Local Environmental Plan 2013

Cases Cited:

The Benevolent Society v Waverley Council [2010] NSWLEC 1082

Texts Cited:

Manly Development Control Plan 2013

Category:

Principal judgment

Parties:

Daniel Alexander Moore (First Applicant)
Susan Margaret Moore (Second Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
A Gough (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Storey and Gough (Respondent)

File Number(s):

2022/256714

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Northern Beaches Council’s Local Planning Panel of Development Application DA2019/1991 (DA). Northern Beaches Council (Council) is the respondent in the proceedings by virtue of s 8.15(4) of the EPA Act.

2. The DA seeks consent for demolition works and construction of a dual occupancy (attached) including strata subdivision at 12 Birkley Road Manly, legally described as Lot 5 Sec 12 in DP 2428 (site).

Site and setting

3. The site is rectangular in shape and has a double frontage. The frontages to both Birkley Road (to the west of the site) and Park Avenue (east) are some 12.19m in width. The site depth is some 38.55m. The total site area is indicated as 469.4m². The site slopes some 4.42m from its Birkley Road frontage to its Park Avenue frontage. There is also a crossfall of up to 0.86m from north to south.

4. Existing development on the site comprises a single storey dwelling house and a detached garage. Vehicular access to the site is via a driveway from Birkley Road. Nonetheless, in a sense, the site frontage is to the east and Park Avenue which enjoys an outlook over Ivanhoe Park to the east.

5. The surrounding locality is characterised by a mix of detached and semi-detached dwellings and residential flat buildings. A semi-detached dwelling is located to the immediate south of the site. An older style residential flat building is located to the immediate north. There are taller, what I might call, “tower-style” residential flat buildings further to the north and south.

6. Heritage items in the vicinity of the site include Item I85 (“Group of Dwellings, 1-25 Birkley Road”), located across Birkley Road to the west and Item I162 (“Ivanhoe Park”) to the east.

Proposal

7. The proposal involves:

• Demolition of all the existing improvements on the site and certain nominated tree removal.

• Construction of a two and three-storey attached dual occupancy. Each of the dwellings would have four bedrooms. Dwelling 1 would located on the western side of the site and include driveway access to Birkley Road and a double garage. Dwelling 2 would be located to the east and include driveway access to Park Avenue and a double garage.

• The proposal includes nominated landscaping, stormwater management infrastructure and other associated work.

Planning controls

8. The site and the nearby residential lands are zoned R1 General Residential under Manly Local Environmental Plan 2013 (MLEP). There is no dispute that the proposed development is permissible with development consent in the zone. The zone objectives are:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

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

9. It is also agreed that the proposal does not contravene MLEP development standards, in particular in relation to floor space ratio, or building height.

10. Manly Development Control Plan 2013 (MDCP) applies to the site. There are certain contraventions of numerical standards in MDCP which are considerations in evidence.

Proceedings

11. Proceedings commenced with a site inspection. The opportunity was taken to hear from a number of objectors. There was also the chance to undertake a view from within the adjoining properties to the north and south.

12. I also note the experts giving evidence in the proceedings were as follows:

Expertise	Engaged by
G Boston	Town planning	Applicant
B Inwood	Heritage	Applicant
B McDonald	Town planning, design and heritage architecture	Council
R Waterman	Solar panels	Applicant

13. While the tendering and examination of evidence was completed in person, closing submissions from the parties were provided in writing. The applicant’s outline of closing submissions was handed up to the court on 26 June 2023. Council’s closing submissions were filed on 27 June 2023 (CCS) and the applicants closing reply submissions were filed on 30 June 2023.

Issues

14. The proposal has been subject to amendments. I note the advice of the parties that Council, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, has agreed to certain changes to plans and documents as embodied in Ex B. A report prepared jointly by the heritage and planning experts was tendered as Ex 3 which took account of the amendments. Following this joint report’s preparation, Council filed an amended statement of facts and contentions (Ex 1). Ex 1 identified two reasons for refusal of the application. These were (CCS p 1):

• The impact of the proposed development on solar collectors that are present on the adjoining dwelling to the immediate south.

• The proposed development would facilitate unacceptable overlooking of the dwelling to the immediate north.

15. A supplementary report prepared by Mr Boston and Mr McDonald was tendered as Ex 5, which included an approach to managing overlooking to the property to the immediate north. On this point the experts recommended a consent condition requiring certain agreed screening. With this agreement on the part of the experts, Council accepted that there was no longer a reason for refusal of the application based on visual privacy impact.

16. This left the single contested issue between the parties as that relating to impact on solar collectors at No 10 Birkley Road. There were also a number of issues raised by lay objectors. Below I commence with consideration of the matter between the parties. Then I turn to objector considerations.

Impact of the proposal on existing solar panels on adjacent property to the south

Setting

17. The northern dwelling in the semi-detached pair to the immediate south has a row of seven photovoltaic solar panels on the roof, oriented to the north. The solar panels are located quite low on the roof line, some relatively small distance above the gutter line. It seemed to be accepted that the seven panels comprise a “string installation”. It also was not contested that with this form of panel installation there is not a linear relationship between shading of panels and panel performance. That is to say, significant shading of one or more panels can affect the performance of the remaining panels with a substantial impact on performance of the entire system (Ex 3 par 5.17).

Policy

18. There are a number of controls with some relationship to solar panels in MDCP. Clause 3.4 is concerned with “amenity”, with clause 3.4.1 focusing on the topic of “Sunlight Access and Overshadowing”. The objective of this subclause relevant to the issue at hand is:

“To provide equitable access to light and sunshine.”

19. A “note” follows which indicates:

“The winter solstice on the 21st June is the most critical time to assess solar access. …”

20. Clause 3.4.1.3 is then directly concerned with “Overshadowing Solar Collector Systems”. It provides that:

“A minimum of 6 hours solar access be retained to solar collectors on neighbouring properties.”

21. Clause 3.5 of MDCP is concerned with “Sustainability” with clause 3.5.1 focusing on “solar access”. In turn, clause 3.5.2 deals with “Energy Sources and Systems” and clause 3.5.2.1 is concerned with “Photovoltaic solar cells”. This provision notes the environmental credentials of such systems (e.g compared to electricity produced by coal fired power stations). A notable provision is as follows:

“The use, location and placement of photovoltaic solar panels should take into account the potential permissible building form of adjacent properties.”

Evidence

22. Mr McDonald provided a calculation of proportion of the combined area of solar panel receiving solar access at the winter solstice (Ex 3 par 5.14), with which Mr Boston agreed. This is reproduced at Figure 1, below.

Figure 1: Mr McDonald's calculation of proportion of solar panels receiving solar access at the winter solstice (Ex 3 par 5.14).

23. The experts agreed that the aspects of the proposal which breached the numerical standard in MDCP (relating to side setback) were not critical in regard to the overshadowing of the solar panels (eg Ex 3 par 5.9 and par 6.2).

24. Mr McDonald noted that relevant MDCP provisions did not specify what proportion of affected solar panels might be reasonably overshadowed. While he noted it did not reference solar panels, Mr McDonald referenced the Court planning principle on access to sunlight from The Benevolent Society v Waverley Council [2010] NSWLEC 1082 (at [144]), which did deal with proportionality. I did not find Mr McDonald’s reference to this case as conclusive, however it did point to three factors of some significance. The first was in relation to prevailing densities; and that in lower densities “there is a reasonable expectation of retaining existing sunlight” (Ex 3 par 5.8). In the witness box Mr McDonald acknowledged that higher density housing forms (eg residential flat buildings and the like) were permissible in the applicable R1 zone. The second concerned the quality of design. Mr McDonald had acknowledged that breaches of MDCP had no significant adverse effect on the shading of the solar panels but here he did question whether there was sufficient analysis of the potential to overshadow the solar collectors in the design development. The third was Mr McDonald’s acknowledgement that the local area was undergoing change.

25. Mr McDonald concluded that (Ex 3 par 5.20):

“…by my calculations the Revision 4 shadow diagrams do not provide 6 hours of direct sunlight, only 4 hours over a substantial proportion of the surface area and five hours over more than 50% of the surface area. I do not count a small area in sunlight, such as 1%.”

26. Mr Boston saw it as unreasonably constraining on the design of permissible development of the site to require complete access to the solar panels during the winter solstice. He argued that MDCP lause 3.5.2.1 anticipates the situation arising in this case and that placement of the solar panels on the adjoining property did not “take into account the potential permissible building form of adjacent properties” (Ex 3 par 5.22).

27. Mr Waterman’s evidence addressed a concern raised in objector submissions relating to “hot-spotting” (responding to evidence from a consultant engaged by the owners of the subject solar panels). Hot-spotting was suggested to be a form of permanent damage to solar panels associated with shading. Mr Waterman advised that he did not see hot-spotting as a concern in this instance as the shading of panels was seasonal and subject to change through the day rather than more permanent.

Consideration

28. Council contended that the shadow cast by the proposed development over the solar panels present on the dwelling to the immediate south was unacceptable and would have an impact on the amenity of this property. Emphasis was given to clause 3.4.1 of MDCP; in particular its “note” which states “The winter solstice on the 21st June is the most critical time to assess solar access”. Council argued the result of the proposed development: “[would] be a complete loss of useability for 3 of the 6 hours (which was) not fair, just, right or reasonable”. Council also argued that any reliance on clause 3.5.2.1 of MDCP was misplaced because its focus was on guiding the location of solar panels on proposed buildings and there is no evidence that this control applied at the time the solar panels were installed.

29. I am generally more persuaded by the applicant’s position on this issue. Firstly, and having considered submissions and evidence, it is not clear to me how to “take” the wording of the MDCP provision at clause 3.4.1.3 (“6 hours solar access be retained to solar collectors on neighbouring properties”). Mr McDonald did a professional job in trying to find a path to the interpretation of the provision (and in particular its non-reference to any “proportionality”) but he too, I believe, did not find great clarity. In oral evidence Mr McDonald acknowledged that the provision could have been written more definitively.

30. In the face of many other sunlight access controls which do include qualifying provisions, clause 3.4.1.3 does not do so. My tendency is to think the plain reading of the provision would have it that a minimum of six hours solar access be retained to solar collectors on neighbouring properties at all times (Emphasis added.). However, there seems to be a disconnect between this interpretation and the object which provides the foundation for the control (relating to equitable access to sunshine).

31. It is well-known that consideration of development control plan provisions is directed by s 4.15(3A)(b) of the EPA Act, which provides relevantly:

(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

…

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

32. In my opinion, the object of the standard at clause 3.4.1.3 of MDCP (“to provide equitable access to light and sunshine”) is not met by imposing a requirement to retain six hours solar access to all of the solar panels, sitting low along the roof line of the adjoining property to the south in the winter solstice.

33. Mr Boston raised the provisions of clause 3.5 of MDCP and thus the general question of sustainability, a line of questioning explored by Council in the examination of experts. Home solar photovoltaic cells have become an important part of electricity generation in Australia. However, it is not the only factor in the mix in relation to ecologically sustainable development in this State. The cited provisions at lause 3.5.2.1 of MDCP (at [21]), concerned itself with sustainability, give some acknowledgement of this.

34. If the issue is limited to the question of equitable access, the proposed development would retain a very considerable amount of sun access to the solar panels throughout the year. The proposal seems to me to provide reasonable and equitable access to these solar panels.

Objecting submissions

35. I have considered objecting submissions concerned about the proposal’s impacts on heritage conservation values in the local area, including in regard to streetscape. Of particular concern was potential impacts on the listed properties to the immediate west, across Birkley Road. Here I have noted the report prepared by Weir Phillips heritage and planning specialists (Ex 2 p 83 et seq), which raised concerns including in regard to streetscape considerations and view loss.

36. In regard to these topics, I accept the evidence of the parties’ heritage experts who together formed the view that the amended proposal responds reasonably to the relevant heritage-related considerations and provisions at clause 3.2 of MDCP (Ex 3 par 3.1). The experts also found that with amended setbacks (notably at the upper level), architectural detailing and façade treatments (including replacement of horizontal windows on the western façade with vertically proportioned windows), the proposal responded satisfactorily and would “not have an adverse impact on the streetscapes of Berkely Road and Park Avenue” (Ex 3 par 4.1). It was further found that the proposal did not give rise to unacceptable view loss impacts with the increased setbacks and lowering of height on both sides of the dwelling, reducing view impact from the west (Ex 3 par 5.1 and Ex 5 par 2).

37. I now turn to the objecting submissions from the immediate neighbours. Beyond the contested topic of impact on solar panels, the neighbours to the south were concerned about lost sunlight (and light generally), privacy impacts and what was seen to be the imposing visual massing of the proposal, including in regard to side setback contraventions. The neighbours provided detailed submissions with photographic evidence and I note here that I have given consideration to a specialist report prepared by town planners James Lovell and Associates (Ex 2 p 27 et seq) on behalf of the owners to the south.

38. A particular concern was the loss of solar access to the front (eastern) veranda area in winter to this property to the south. The experts agreed that this veranda shading is caused by compliant elements of the proposed built form (Ex 5 par 3). I had the opportunity to view from this veranda area, and coincidentally on a sunny morning near to the winter solstice (26 June). I need to point out that the parties’ experts had possession of view from the sun diagrams of the amended proposal (which were not in the possession of the objectors or their planner). It was their agreed conclusion that the proposal would provide for a reasonable sunlight access result, meeting relevant controls. My observations generally coincided with the views expressed by the experts that a reasonable outcome could be expected from the proposal in regard to solar access. Of note here was that there was self-shadowing “deep” into the veranda (to the seating spaces) at the time of the inspection and that when one stood on the veranda edge, it could be expected that existing solar access would be significantly retained. Here I was satisfied with the agreed explanation of the amended plans and proposed built form, after some considerable questioning on my part. When one turned to the rear open space area, I note the agreed condition that future landscaping be limited in height to provide for afternoon sun in winter.

39. The topics of visual privacy, bulk and setbacks can be considered together. While I note that there are some contraventions of the numerical side setback standard (Drawing 26 Rev 4 in Ex B), the experts observe that there is compliance in critical areas, and as indicated above, parts of the proposed building that contribute to overshadowing are compliant (Ex 3 par 6.2). For me, the building height compliance, and the variations in setbacks which break up the building massing, adequately address visual bulk concerns.

40. As indicated above, during the site inspection the residents of the property to the immediate north raised some particular privacy concerns which the experts believed were already adequately addressed by way of screens to eliminate overlooking. But in one instance the concerns raised resulted in a condition to bring about a more effective visual screening to the living areas of the neighbour (Condition 21A).

35. There was general agreement between the planning experts that the proposed building envelope responds reasonably to the envelope controls in MDCP.

36. In regard to concerns about tree removal, I note the advice of Council’s specialists accepting the proposal in that regard (Ex 2 p 125).

Conclusion

43. Noting the amendments undertaken, the proposal, as now before the Court, adequately responds to the planning controls and concerns raised by Council and objectors. On the basis of the findings outlined above, the proposal warrants approval in accordance with agreed draft conditions provided by the parties (without prejudice).

44. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. DA2021/1991 for demolition works and construction of a dual occupancy development including strata subdivision at 12 Birkley Road, Manly being Lot 5 Sec 12 in DP 2428, subject to the conditions of consent in Annexure A.

3. The exhibits are returned with the exception of the following exhibits which are retained 1, A and B.

P Walsh

Commissioner of the Court

Annexure A

Decision last updated: 19 July 2023