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Parsonage v Ku-ring-gai

Parsonage v Ku-ring-gai

Case [2004] NSWLEC 347 30 June 2004

Development Application

Adverse Possession

Easements & Covenants

Native Title

Planning & Development Law

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NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Parsonage v Ku-ring-gai [2004] NSWLEC 347

PARTIES:
Applicant:
Stephen Parsonage

Respondent:
Ku-ring-gai Council

CASE NUMBER: 10225 of 2004

CATCH WORDS: Development Application; Development Standards

LEGISLATION CITED:

CORAM: Roseth SC

DATES OF HEARING: 15/06/2004

DECISION DATE: 30/06/2004

LEGAL REPRESENTATIVES

Mr S Kondilios, solicitor
Mr R Graham, solicitor

JUDGMENT:

- 5 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Roseth SC
30 June 2004
10225 of 2004 Stephen Parsonage v Ku-ring-gai Council
JUDGMENT

SENIOR COMMISSIONER: This is an appeal against the refusal by Ku-ring-gai Council (the council) of a development application to demolish the existing dwelling and erect a detached dual occupancy on lot 37 DP 810909, known as 192 Bannockburn Road, Turramurra.
The parties have come to an agreement and seek consent orders from the Court. An objector, Mr Richard Hall, who lives at 190 Bannockburn Road adjoining the subject land to the south, maintains his objection, principally because it overshadows his living area and courtyard until 11am at the-winter solstice. In order to reduce the overshadowing, the applicant has accepted a condition reducing the pitch of the roof from 27o to 22o. Mr Hall, who is represented by a town planner, Mr N Juradowitch acknowledges that the lowering of the roof pitch improves his situation. Mr Hall nevertheless asks the Court to impose an additional condition requiring a section of the proposed two-storey house to be set further back from the common boundary by 800mm. The applicant does not accept the condition, arguing that the overshadowing impact is acceptable (and was acceptable even before the lowering of the roof pitch). The council agrees with the applicant’s position.
Mr Hall argues that his house was built to capture sunlight and that it has gained an award for solar design. It now receives sunlight all day and any loss of sunlight would reduce its passive solar performance. Thus the Court has before it a proposal on which there is only one issue, namely the impact on the sunlight access of No 190. The issue is not between the council and the applicant, but between the objector, on the one hand, and the council and the applicant, on the other.
The application is made under State Environmental Planning Policy 53 (SEPP 53), which includes only the qualitative requirement that there should be adequate sunlight to the main living areas of neighbours. The Policy refers to AMCORD for quantitative assessment. The proposal more than satisfies AMCORD, yet there remains a lingering doubt in my mind whether the impact on No 190 could be mitigated without significant detriment to the proposal?
Since the impact on the sunlight access of adjoining property is the only issue, it is appropriate for the Court to set down the principles on which the impact on sunlight can be assessed.
Planning principle: impact on solar access of neighbours
The Australia-wide resource document for residential development, AMCORD, suggests that a development should not reduce the sunlight received by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Parsonage v Ku-ring-gai

Details

AGLC: Parsonage v Ku-ring-gai [2004] NSWLEC 347
Case: [2004] NSWLEC 347
Decision Date: 30 June 2004

CaseChat Overview and Summary

In the matter of Parsonage v Ku-ring-gai, Stephen Parsonage sought approval from the Ku-ring-gai Council for a development application to demolish an existing dwelling and erect a detached dual occupancy on a property located at 192 Bannockburn Road, Turramurra. The application faced objection from Mr Richard Hall, a resident of an adjoining property at 190 Bannockburn Road, who was concerned about the overshadowing of his living area and courtyard, particularly during the morning hours in winter. The primary legal issue before the court was the impact of the proposed development on the sunlight access of Mr Hall's property, despite the applicant's modification to the roof pitch from 27 degrees to 22 degrees to mitigate the overshadowing.

The court addressed this issue by considering the principles for assessing the impact on sunlight access, including the applicability of numerical guidelines such as those from AMCORD and the NSW Residential Flat Design Code. The court emphasised the importance of applying these guidelines judiciously, taking into account factors such as the density of development, the design quality of the proposal, and the reasonable expectations of neighbouring properties. The court also highlighted the need to balance the loss of sunlight against the financial burden and the overall impact on the proposed development.

After examining the evidence and submissions, the court concluded that while the proposed development would result in some loss of sunlight to Mr Hall's property, the impact was not significant enough to warrant imposing an additional condition requiring a further setback of the proposed building. The court noted that the proposed design already met the required sunlight thresholds and that the additional condition would impose an undue financial burden on the applicant without providing substantial benefit to Mr Hall's property. Consequently, the court granted the development application subject to the condition that the roof pitch be lowered to 22 degrees, a condition that the applicant had already accepted.

Orders