Sakoua v Parramatta City Council

[2004] NSWLEC 349

Land and Environment Court

of New South Wales

CITATION:	Sakoua and Anor v Parramatta City Council [2004] NSWLEC 349
PARTIES:	APPLICANTS R Sakoua and D Mousa RESPONDENT Parramatta City Council .
FILE NUMBER(S):	10987 of 2003
CORAM:	Moore C
KEY ISSUES:	Development Application :- Privacy Solar access .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 .
CASES CITED:	Super Studio v Waverley [2004] NSWLEC 91; Kawkab Nassif v Holroyd City Council [2004] NSWLEC 226; .
DATES OF HEARING:	1 April and 10 June 2004
EX TEMPORE JUDGMENT DATE :	06/10/2004
LEGAL REPRESENTATIVES:	First applicant in person RESPONDENT Mr C Gough, solicitor Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

10 June 2004

COUNCIL
JUDGMENT

1 COMMISSIONER: This was an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal on 8 August 2002 by Parramatta City Council (the council) of Development Application 00560 of 2000 for the demolition of existing dwellings and the construction of, on the amended plans, eleven villas at a number of sites in Pioneer Street Wentworthville, they being numbers 12a, 14 and 16 of the street.

2 During the course of the proceedings, I had the opportunity to inspect the site in company with the parties and their advisers and hear the evidence of a number of the resident objectors - including the immediate neighbours to the site. I have also received a bundle of written submissions that were provided by a number of those attending on site in response to the amended plans.

3 The applicant, in response to a number of matters raised in the course of the hearing on site and subsequent discussions between the expert witnesses and interaction with the Court, submitted amended plans which were considered by the council and went through a further advertising and public consultation process. It is on the basis of those amended plans that this stage of the proceedings comes to determination before the Court.

4 It is agreed by the parties that there are three potentially determinative matters in this appeal.

5 The first of them relates to the issue of stormwater disposal and the interaction of the proposed stormwater disposal plan with the sewer main owned and operated by Sydney Water which runs, essentially, in a straight transverse of the rear of the site and may be significantly impacted on by the proposed stormwater detention tank. That matter has not been resolved between the applicant and Sydney Water and is not before me for determination this morning. The proceedings have continued on the basis that I would deal with the remaining two matters and if I determined them favourably to the applicant the proceedings would then be referred to the Registrar for a further hearing date to deal with outstanding Sydney Water issues.

6 However, on the other side of the coin, if I were to be satisfied that either or both of the other determinative issues warranted refusal then the applicant would be spared the time and expense of seeking those further negotiations with Sydney Water.

7 I am therefore this morning giving a decision with respect to those two outstanding determinative issues. They are firstly whether the streetscape presentation of the proposed development and the reliance on landscaping for privacy to the private open space of units 1, 2 and 3 is acceptable and, secondly, whether there is an adequate level of solar access to the private open space areas of all of the dwellings.

8 As part of this latter issue, I am invited to determine which is the preferable solar access standard to be applied in light of the consideration of three options contained in the joint planning report of the two planning experts retained by the parties.

9 All other issues such as privacy, traffic and the like are in my view either not determinative or are capable of being resolved by condition if I am satisfied that the development should otherwise proceed.

10 I turn first to the issue of the presentation to the streetscape and the private open space of units 1, 2 and 3. The revised plans provide some modest alteration to the private open space of these units but nonetheless the dominant area of the private open space to unit 1 faces Pioneer Street and the totality of the private open spaces to units 2 and 3 also face that street.

11 It is proposed that the private open space of each of these three units will be shielded from passers-by in Pioneer Street in three separate fashions. The first is that there will be retained the vegetation that is contained within the public domain facing Pioneer Street along the frontage of the site; secondly, there will be extensive landscaping within the setback to the fences of the three units which are staggered across the frontage - with the easternmost of the three units, unit 3, being the closest to the street and, thirdly, there will be visual protection provided by the erection of a wall again staggered following the boundary of these private open spaces that will be in a form set out in the north front fence detail in the revised plans that are before the Court. Essentially that revised front fence is proposed to be constructed to 1600 mm high with 1200 mm of that being solid masonry in varying forms with the 400 mm above that being a picket fence between brick piers.

12 The issue that I am obliged to consider is whether this provides an appropriate degree of privacy protection for the future residents of units 1, 2 and 3 and secondly whether it is an acceptable issue of presentation to the public domain.

13 With respect to the presentation to the public domain, it was the evidence of Mr Jones, the town planner for the council, that the presentation of these walled or fenced areas to the street was inconsistent with the general streetscape and out of character with other dwellings in the area. That position was reinforced by what was able to be seen on the view. However I am satisfied that, if it is appropriate to permit the applicant to rely on landscaping to screen the private open spaces of units 1, 2 and 3, the screening of the private open spaces by such landscaping will also necessarily result in the screening of the fence to those areas to at least a significant degree, although there is a pathway leading to and across the face of the wall at the front of the private open space of unit 2.

14 If it were appropriate to grant consent on the basis of reliance on the landscaping for screening and the like, I would be satisfied that the presentation of those private open space areas and their surrounding walls to the street would not be such as to warrant refusal of the application.

15 In this regard, the town planning consultant retained by the applicant, Mr Tillett, says on page 4 of the joint expert planners’ report supplement that was tendered in the proceedings today, that he is of the opinion that it is wrong to ignore, totally, the effect of the existing and proposed landscaping. He says,

The existing landscaping being outside the front courtyard wall will provide an immediate privacy shield. This combined with the proposed landscaping will afford the residents of dwellings 1, 2 and 3 with good levels of privacy.

16 He also posits that the most likely form of activity is passive recreation probably consisting of sitting at a table or sunbaking on a lounge. Even accepting those recreational uses (which is to some extent a statement contrary to the interests of the applicant when I consider the issues of solar amenity to those courtyards), I am not satisfied that the approach taken by Mr Tillett in this joint statement of evidence is the appropriate one.

17 I was referred by Mr Gough, solicitor for the council, to a decision of Roseth SC in Super Studio v Waverley [2004] NSWLEC 91 in which the Senior Commissioner sets out a number of planning principles relating to private open space and landscaping. The second of those principles states as follows:

The second principle is that, where proposed landscaping is the main safeguard against overlooking, it should be given minor weight. The effectiveness of landscaping as a privacy screen depends on continued maintenance, good climatic conditions and good luck. Whilst it is theoretically possible for a council to compel an applicant to maintain landscaping to achieve the height and density proposed in an application in practice this rarely occurs.

18 I adopt the sentiments expressed by the Senior Commissioner in that decision. I am satisfied that the combination of the design of the fence, the presentation of the fence to the street, the height of the fence (which is lower than that which would normally be expected in such circumstances as a consequence of not increasing the adverse solar impact of the height of that fence), renders the presentation of the private open space for units 1, 2 and 3 unacceptable on privacy and streetscape bases. I am therefore not prepared to uphold the appeal on the basis of that issue alone.

19 With respect to the issue of solar amenity, there is disagreement between the expert witnesses as to what should be the appropriate standard for my consideration.

20 The three bases which are advanced and are subject to analytical tables setting out the degree of compliance in each instance contained on pp 7, 8 and 9 of the joint expert report supplement tendered today.

21 The first basis, which is advocated by Mr Jones, is that I ought have regard to the solar access available to the courtyards based on the areas of the courtyards actually provided. That is the detail set out in table 1 of the town planning report. It is clear from a consideration of table 1 that the solar access could not even be regarded as going close to satisfying a minimum acceptable level if I adopted that basis.

22 Table 2 is based on ignoring the areas of private open space actually to be provided and basing it on the minimum area that would be required pursuant to the provisions of AMCORD if I were to assess this application as being for dwellings with a site density of forty dwellings per hectare or less, that being the actual density that is reflected by the development proposed.

23 If I were to apply the assumptions in table 2, I would still not possibly be satisfied that there was an appropriate degree of solar access provided to sufficient of the units in the proposed development to warrant the granting of consent.

24 However, Mr Tillett advocates the proposition that, no matter what the actual density, I should have regard to the theoretical yield based on the area of the site, the zoning controls presently applying and the like and that, as a consequence, because that density would permit forty two and a fraction dwellings per hectare, I should deal with it on the basis that it is not the 55.5 square metre private open space requirement that would meet the AMCORD provisions but the thirty-five square metre private open space requirement on a notional density in excess of forty dwellings per hectare. That is set out in table 3.

25 Table 3, it would seem to me, is the appropriate commencing point for my consideration of this issue.

26 If I am not satisfied that the proposed development satisfies an appropriate level of amenity to the private open space for solar access on the basis of table 3, it, as a matter of logical necessity, could not satisfy either table 2 or table 1.

27 Table 3 shows that for six of the units at three points in time as a minimum on the winter solstice, there is sunlight to more than thirty-five square metres of private open space. With respect to three of those units, being units 1, 4 and 7, I am unable to establish the totality of time because of the transitions of the sun as to whether or not they would achieve three hours’ solar access. It is probable, with respect to unit 7, that this is achieved because in the hour measuring time prior to the first compliant time, there is a 49.4 percentage requirement. I am therefore prepared to assume that unit 7 would comply with a three-hour solar access test.

28 With respect to unit 4, a similar position applies with the measuring time immediately after the three compliant measuring times where there is a 46.6 per cent compliance. I am therefore prepared to assume that that transition is also likely to result in three hours or close to it. A similar position applies with respect to unit 1. Therefore I am prepared to assume that for the purposes of this consideration six of the eleven units will satisfy the solar access requirement.

29 As a consequence, it would seem to me that the position is that table 3, if I were to accept that as the appropriate basis for assessment, would marginally satisfy the provisions of AMCORD.

30 I then turn to consider, as a consequence of that hurdle being passed by the applicant, the question of whether or not that is the appropriate standard to apply. I am satisfied that it is not.

31 I am satisfied that to adopt a notional density rather than having regard to the actual yield that is to be taken from the site would be an entirely artificial construction of the provisions of AMCORD.

32 I am therefore satisfied that the most favourable position available to the applicant is the position which is set out in table 2 and that is an AMCORD courtyard private open space area requirement of fifty-five square metres.

33 I am prepared to assess the present application on the basis of table 2, that being the next most favourable position to the applicant as possibly being acceptable.

34 As I indicated earlier, at the very best the construction of that table would have two of the units, units 2 and 5, satisfying the AMCORD requirements. I am asked by the applicant to have regard to the patio area to the courtyard of unit 3 as being an area that ought to be taken in aid of adequacy of solar access. Even if I am prepared to do so, given that the area of private open space for unit 3 only has as its maximum, on a 55.5 square metre basis, 25.8 per cent compliance, even if unit 3 with consideration of its patio were to be taken as being somewhat close to a fifty per cent compliance during relevant periods (which is a consideration with which I would have some considerable doubt), even giving the applicant that indulgence, there would still only be three of eleven units that could be regarded as possibly compliant. That would not provide an appropriate basis for granting consent to this application. Having reached that conclusion it is not necessary to consider whether table 2 or table 1 ought to be applied as table 2 does not yeild an acceptable result.

35 There is one further matter with respect to solar access that I should address. The applicant took me to a case of Kawkab Nassif v Holroyd City Council [2004] NSWLEC 226 where Mr Gough, solicitor on behalf of the council, is faced with the irony of having his own words on behalf of an applicant put back to him. In paragraphs 77 and onwards of that decision, Watts C dealt with the issue of solar access. He did so, however, in the context that there appeared to be a greater degree of compliance and he was prepared to accept the proposition, in that case, that an appropriate place of measurement for solar access might be for persons sitting or standing in a private open space.

36 On further consideration I think it appropriate, to be consistent with AMCORD and to provide certainty in these matters, that private open space solar access should be measured at ground level rather than at some other point. I therefore do not consider that the position that I have reached with the private open space solar access issue in this case is in any way inconsistent with the position adopted by Watts C in that case - that case being determined on its own circumstances.

37 The final matter that I should deal with is the submission that was made to me by Mr Gough that, because the planning instruments that apply to the area within which this site is located have changed, with future development of the nature sought by the applicant prohibited, this application should be assessed on the basis that it will in effect be a one of a kind application and therefore ought be of a greater degree of excellence.

38 As I indicated in an exchange with him, the converse of that proposition could also be argued, namely that because there would be no other development of this nature, if it were marginally unacceptable it might otherwise be acceptable because it could not create a precedent for future development.

39 I do not consider either of those propositions has any acceptability within the legislative framework pursuant to which I am obliged to deal with this appeal. I am obliged to deal with the appeal on its merits and the acceptability or otherwise of the current proposal as a design. The fact that it might only be one of a kind, if permitted, is a matter which I do not consider has any proper foundation for a decision in this matter. Having said that I have concluded that on the two bases set out above, the appeal should be dismissed.

40 The orders of the Court therefore will be that:

1. The appeal is dismissed;
2. Development Application 00560 of 2000 for the construction of a villa development at 12a, 14 and 16 Pioneer Street Wentworthville is determined by the refusal of the development consent; and
3. The exhibits may be returned.

Tim Moore
Commissioner of the Court