Sale v Ku-ring-gai Council

[2004] NSWLEC 24

Pending Appeal:

Land and Environment Court

of New South Wales

CITATION:	Sale v Ku-ring-gai Council [2004] NSWLEC 24
PARTIES:	APPLICANT P Sale RESPONDENT Ku-ring-gai Council .
FILE NUMBER(S):	10618 of 2003
CORAM:	Moore C
KEY ISSUES:	Development Application :- Bushfire risk Traffic Amenity for adjacent properties Streetscape .
LEGISLATION CITED:	Rural Fires Act 1997 Freedom of information Act 1989 State Environmental Planning Policy No 5 Environmental Planning and Assessment Act 1979 .
CASES CITED:	Sale v Ku-ring-Gai Municipal Council [2001] 119 LGERA 31; NSWLEC 291; Manzie v Willoughby City Council 96 LEC 26; .
DATES OF HEARING:	22 and 23 January 2004
DATE OF JUDGMENT:	01/30/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J Hannaford, solicitor Hannaford Lawyers RESPONDENT Mr P Rigg, solicitor Deacons

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10618 of 2003

Moore C

30 January 2004

P SALE

Applicant

v

KU-RING-GAI MUNICIPAL COUNCIL

Respondent

Introduction

1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Ku-ring-gai Council (“the council”) of Development Application 401/02 for housing for older people or people with a disability pursuant to the provisions of State Environmental Planning Policy No 5—Housing for Older People or People with a Disability (“SEPP 5”).

2 The development is proposed on a site comprising two adjoining lots known as 43 Canoon Rd and 1 Tarook Ave, South Turramurra, being Lot 90 DP 16178 and Lot 35 DP1791 respectively (“the site”).

3 A different SEPP 5 application for the site has been before the Court in earlier Class 1 proceedings. These were heard by Bignold J with the assistance of Brown C: Sale v Ku-ring-Gai Municipal Council [2001] 119 LGERA 31; NSWLEC 291.

4 In those proceedings, His Honour dismissed the appeal saying:

My consideration of the competing cases, as expressed in the evidence of the expert witnesses and of a number of the objecting local residents, has led me to conclude that development consent should not be granted, in the present case, principally because the development proposal presents as a built form that is disharmonious with the existing residential streetscape and character of the surrounding residential area and imposes an unacceptable burden on the amenity of the three adjoining residential properties by virtue of the bulk and overbearing appearance and capacity for overlooking, of the proposed development.

5 His honour's conclusions in those proceedings related to the proposed built form of that application – an application substantially different from that involved in the present proceedings. His honour's conclusions, therefore, carry no weight in these proceedings.

The site

6 The site is located on the north-eastern corner of the intersection of Tarook Avenue and Canoon Road.

7 The site has a combined area of 2,267 square metres. The site has frontages of 20.118m to Tarook Avenue and 70.005m to Canoon Road. The site is “L” shaped and falls in a northerly direction away from Canoon Road. Along the Canoon Road boundary, the site is relatively level.

8 As was the case when Bignold J dealt with the earlier proposal for the site, I have had the benefit of a comprehensive view of the site, its environs, of the pedestrian route to the nearest bus stop, and of a number of adjoining residential properties. This view was undertaken in the company of the representatives of the parties and local residents who had objected to the proposal.

9 Bignold J described the present development on the site in terms which are still applicable. He did so in the following terms:

Each of the two allotments is currently developed by a single storey brick dwelling house. Each of the existing dwellings is situated in a garden setting with generous setbacks and is generally typical of the style of houses in this section of the suburb of South Turramurra which was first opened up for residential development some 30 to 35 years ago. The existing dwellings blend well with the overall streetscape of both Tarook Avenue and Canoon Road, although the side boundary fence along the Canoon Road boundary of the corner allotment is discordant with the character of properties fronting that road.

The proposed development

10 The applicant proposes to build a housing complex for residents over the age of 55 or residents who have a disability. It is proposed to construct 7 dwellings across four separate buildings. One of the dwellings will be an adaptable one. Three of the buildings have a frontage to Canoon Road and the fourth, containing unit 7, is in the northeastern corner of the site and is to be accessed by a driveway along the common boundary between the site and 41 Canoon Road. Unit 1, the adaptable unit, is proposed to be accessed from Tarook Ave and the remaining six residences are accessed from Canoon Road. The entrance to the driveway for units 2, 3 and 4 is to be via a 3 m driveway which is directly opposite the intersection of Chisholm Street and Canoon Road.

Planning controls

11 In the ordinary course of events, the relevant planning controls would be those derived from the Ku-ring-gai Planning Scheme Ordinance. However, because of the facultative and overriding provisions of SEPP 5, the provisions of the planning scheme ordinance and any other local controls are overridden and the only provisions which required consideration in the present appeal are those of SEPP 5.

Issues

12 Although the council filed a formal statement of issues in the proceedings on 25 July 2003, the contested issues which I need to address may be summarised into two categories.

13 The first of these relates to issues pressed by the council and the second is the range of issues raised by resident objectors.

14 The council issues essentially relate to:

• the bulk and scale of the proposed development – particularly as it presents to Canoon Road;
• Mr Smyth's opinion that the length and extent of the hard surface of the driveway to unit 7 – being adjacent to the common boundary with 41 Canoon Road – was excessive;
• concerns as to overlooking from units 3 and 4 to the adjacent property to the north (which is 3 Tarook Ave); and
• whether the solar access to the private open space areas of units 5 and 6 is acceptable.

15 In addition to adopting, generally, the council’s issues, the further issues raised by the resident objectors relate to:

• the bulk and scale of the development when viewed from 48 Parkinson Ave;
• whether the loss of the view of the existing vegetation at the rear of 43 Canoon Road (which vegetation is to be replaced by the construction of unit 7) is an acceptable impact on the views from the rear family and entertaining area of 48 Parkinson Ave and the deck at the rear of 41 Canoon Road;
• whether or not the deck area of 41 Canoon Road would be subject to unacceptable overlooking from elements in units 6 and 7;
• whether the traffic impacts on residents in the Canoon Road precinct would be unacceptable given existing traffic pressures – particularly during netball season; and
• whether the bushfire risk to the site was such that the site was inappropriate to be developed for elderly or disabled residents.

Access issues

16 In setting the context of the issues, I note that, following joint experts’ conferencing between Mr R Klinger, the access expert for the applicant, and Mr T Beardsmore, the access expert for the respondent, a number of changes to the plans were agreed and a number of conditional changes agreed which removed all access issues from contention in the proceedings.

The witnesses

17 Evidence was given on behalf of the council by:

• Mr R Smyth, a consultant town planner;
• Mr G Carmichael, an owner of the property at 41 Canoon Road to the east of the site;
• Mr R Capper, an owner of the property at 48 Parkinson Ave to the north of the site;
• Mr M Thompson, a resident of Field of Mars Ave, a street which is parallel to and one to the west of Tarook Ave;
• Mrs M Booth, an office bearer of the Kissing Point and South Turramurra progress association; and
• Mr G Bloomfield, a long term resident of South Turramurra and a member of the progress association.

18 Evidence was given on behalf of the applicant by the applicant personally and by Mr C Blyth, a consultant town planner.

The bushfire risk

19 In the proposed tender of the customary bundle of documents, Mr Rigg, on behalf of the council, sought to include a range of material including two documents which were clearly expressions of opinion on bushfire matters by persons who, if they were to have given evidence in the proceedings, would have clearly fallen within the capacity of expert witnesses and thus would have required the following, by the council and the witnesses, of the relevant practice direction provisions. Tender of these documents was not pressed, after further consideration of the issue by Mr Rigg.

20 At the conclusion of the giving of the evidence of the residents, particularly the evidence of Ms Booth, Mr Thompson and Mr Bloomfield, I indicated to Mr Hannaford that the evidence of the residents raised significant concerns on the subject of bushfire risk which, at that stage of the proceedings, was not able to be rebutted by expert evidence on behalf of the applicant.

21 In response, Mr Hannaford called his client, Mr Sale, to give oral evidence concerning a recent conversation which he had had with the relevant officer of the Rural Fire Service (“RFS”). I was informed by Mr Hannaford that, although the relevant certificate pursuant to s 100B of the Rural Fires Act 1997 was promised to be faxed to Mr Hannaford, this offer was subsequently withdrawn and the applicant informed that appropriate processes pursuant to the Freedom of Information Act 1989 would be required prior to the release of the certificate. It was Mr Sale's evidence that he had been informed that this certificate would demonstrate that the RFS did not have any difficulty with the proposal. Mr Sale also indicated that he had discussed with this officer the necessary timing of any subpoena for that officer to give evidence.

22 Although Mr Hannaford conceded that he had been aware since mid 2003 that the resident objectors proposed to raise issues relating to bushfire risk and that the applicant had commissioned an expert advice on this issue and provided it to the council, he noted that the matter was not pressed as an issue by the council. Mr Hannaford informed the Court that he and his client had considered the option of ensuring a subpoena on behalf of the applicant to the relevant RFS officer but had decided not to do so in light of bushfire risk not being pressed by the council.

23 However, the council continues being in discussions with the RFS concerning areas, including one containing the site, which the council considers should be exempt from SEPP 5 developments because of what the council considers is the bushfire hazard to these areas.

24 A meeting which had been scheduled between the RFS, the council and the Department of Infrastructure Planning and Natural Resources (“the department”) has been postponed until an indefinite date in February, at the earliest.

25 As part of the documentation in council bundle, two letters from the RFS dealt with the site.

26 The first, dated 26 August 2002, indicated that the RFS had no comments with respect to the development proposal. However, a letter from it, dated 19 August 2003, resiles from this position.

27 The second letter says, relevantly:

Based upon assessment of the plans and documentation received for the proposal, the NSW Rural Fire Service (RFS) endorses the recommendations of Building Code and Bushfire Hazard Solutions in relation to the provision of screens on openable windows. The RFS would go further and suggest level 1 construction under AS 3959 – 1999.
Notwithstanding this, the RFS has some concerns in relation to those matters set out in clause 12(2C) of SEPP 5 which does not appear to have been addressed. As such, the proposal should be deferred until the RFS, Council and the Department of Infrastructure Planning and Natural Resources have had the opportunity to consider Council's request for the extension of the exclusion zone to cover this area.

28 In this context, I note that Building Code and Bushfire Hazard Solutions referred to in the RFS letter are the experts from whom the applicant commissioned an advice.

29 The council's bundle of documents, including this RFS correspondence, was not served on the applicant until shortly prior to the commencement of the hearing.

30 The applicant thus had no early notice of the 19 August 2003 RFS letter. That letter stands uncontradicted on any evidence, other than the hearsay evidence of Mr Sale.

31 After an extensive canvassing of procedural options with Mr Hannaford, I indicated that I did not consider that I was in a position to determine the issue of bushfire safety as, if I did so on the evidence then before me and in the absence of any proper opportunity for his client to lead substantive evidence in rebuttal to the residents’ evidence and the expressions of concern in the August 2003 RFS letter, I would be obliged to find contrary to his client's interests.

32 I therefore determined that I would proceed to give a decision on the issues which were in contention other than those relating to bushfire risks.

33 I indicated to Mr Hannaford and Mr Rigg that, if I were to find in favour of the applicant on that range of issues, I would then give directions concerning exchange of expert evidence and the like on the bushfire issue to enable the bushfire issue to be dealt with as expeditiously as possible.

Consideration of the issues to be determined

34 Although I have concluded that the applicant should not succeed because of several specific issues which are as a consequence of the proposal seeking an overdevelopment of the site, it is appropriate that I deal with the entire suite of issues in the present proceedings so that, if there is to be any further negotiation between the applicant and the council, my determination on the other issues might be of some assistance to the parties in those negotiations. However, obviously, they have no utility in any future proceedings should the parties not be able to achieve agreement on a redesigned development for the site: see Manzie v Willoughby City Council 96 LEC 26.

Issues raised by the objectors

35 The matter of the bulk and scale of the development, when viewed from 48 Parkinson Ave, was a concern of Mr Capper. It was his opinion that, when viewed from the rear area of his property, not only would the roof line of unit 7 be visible but that, above it, also would be visible in the roof line of units 5 and 6. If this were the case, he was concerned that the bulk and scale of the visible built form would dominate, oppressively, the view to the south from the rear family and entertaining area of his property.

36 In anticipation of the evidence of Mr Blyth on this point, Mr Hannaford suggested, in cross-examination of Mr Capper, that the correct reading of the plans disclosed that the ridge line of units 5 and 6 would not be visible by a normally heighted observer in the rear yard of Mr Capper's property. Mr Capper did not accept this proposition. Mr Blyth subsequently gave the anticipated evidence on this point. From an examination of the plans, particularly a consideration of the eastern elevation, I am satisfied that the view expressed by Mr Blyth is accurate and that the ridge line of units 5 and 6 would not be visible from Mr Capper’s backyard. However, the applicant also indicated that it would be prepared to accept a condition which would continue, along this portion of the boundary, the style and height of fencing which has been erected on the common boundary of the Carmichael and Capper properties. Whilst it is not necessary to deal with this option in these proceedings, this is a matter which warrants further consideration by the applicant for any future proposal.

37 Mr Carmichael and Mr Capper questioned whether the loss of the view of the existing vegetation at the rear of 43 Canoon Road (which vegetation is to be replaced by the construction of unit 7) is an acceptable impact on the views from the rear entertaining areas of their properties. The applicant concedes that the entirety of the internal vegetation of the northern portion of 43 Canoon Road will be removed if the proposal were approved. The applicant proposes a not insignificant landscaping regime in conjunction with the built form proposed for the site and submits that such landscaping would provide a degree of amelioration to the proposed loss of vegetation complained of by Mr Carmichael and Mr Capper. In addition, as was evident from the view, the Carmichael and Capper premises take advantage of the view of the extensive vegetation of 43 Canoon Road whilst having, at the present time, limited advanced vegetation on their own properties. As the necessary consequence of this decision will lead the applicant to redesign any further proposal to be put to the council, this will afford the opportunity to consider whether retention of some of this advanced vegetation might be possible in such future application. However, the proposed loss of the vegetation, if supplemented by somewhat more generous landscaping in any future plans, would be acceptable.

38 Mr Carmichael questioned whether his deck area at the rear of 41 Canoon Road would be subject to unacceptable overlooking from elements in units 6 and 7. These elements were the upper-level third bedroom window of unit 6 and the ensuite bathroom window of unit 7. It is a long established planning principle that the areas which are of principal concern for overlooking are living areas within a building and external areas of private open space. Less concern is given to overlooking issues from bedroom windows. In the present instance, under cross examination, Mr Carmichael conceded that the privacy screen erected on his rear deck on the side facing 43 Canoon Road, although somewhat higher than required by the council's condition for his development approval, did not comply with the council's requirement that it be of solid construction. The separation between the bedroom window which is of concern to him and his deck is some 10 m in a horizontal plane. I am satisfied that this distance, together with a compliant privacy screen if one were erected on Mr Carmichael's property, would ensure that the exposure to overlooking, if any, would be acceptable.

39 With respect to the ensuite bathroom of unit 7, the window of such facility would, in the ordinary course of events, comprise frosted or translucent glazing rather than glazing which would permit overlooking. In addition, the sight line from this location to Mr Carmichael's deck is upward and oblique and should not give rise to any realistic possibility of overlooking even if the window were made of clear glass. However, if I had otherwise been minded to approve proposal, this issue could have been addressed by a formal condition requiring that this window be of frosted or translucent glazing treatment.

40 A general concern raised by the resident objectors was that, in their view, the traffic impacts on residents in the Canoon Road precinct would be unacceptable given existing traffic pressures – particularly during netball season. To some extent, this issue was more strongly pressed as a matter which would be of concern should a bushfire emergency arise as the residents felt that additional pressures should not be placed on the limited egress routes from the Canoon Road precinct under emergency circumstances. However, it was also raised as a general issue of concern.

41 It was the uncontradicted evidence of the residents that the netball activities which take place for approximately 18 weeks per year, predominantly on Saturdays, at the Canoon Road netball courts result in significant parking and traffic congestion in the Canoon Road precinct. The effect of this was to increase exit times from the precinct and reduce many or all of the local streets to an effective single lane of moving traffic as a result of the parking at each kerb. Although this is a reasonable concern, the maximum likely net increase in vehicles which would arise (if the proposal were approved compared to vehicles which might normally be expected from the present dwellings) would be seven. I am not satisfied that this number would be a sufficiently significant increase compared to the burdens already imposed on the local road network as to warrant refusal.

42 In addition, the matter of safe vehicle egress from the site to Canoon Road for elderly or disabled drivers was canvassed by the residents. Matters of safety of egress are dealt with below as they were also raised the by the council as part of the streetscape presentation issues pressed by it.

The council's issues

43 It was Mr Smyth's evidence that the bulk and scale of the proposed development as it presents to Canoon Road was unacceptable. As I apprehend his evidence, there were three elements put as underpinning such a conclusion. The first was that the general presentation of the built form was inappropriate; the second that the presentation of the paved driveway areas was excessive and out of keeping with the locality and the third, but a more subsidiary element, that the location of the driveway proposed for units 2, 3 and 4 – being opposite the intersection of Canoon Road with Chisholm Street – was unsafe and inappropriate.

44 It is obvious from the plans (and confirmed from the view) that the ridgeline of the three buildings proposed to front Canoon Road will be virtually identical with that of the existing Carmichael house at 41 Canoon Road. Similarly, the dormer window treatment proposed for these buildings will be entirely in keeping with the treatment of the dormer windows at 41 Canoon Road. Whilst there are marginal differences in the various side setbacks between the corner of Tarook Ave and the western wall of 41 Canoon Street, these differences are not so great as to warrant concern. I am satisfied that these elements of similarity with 41 Canoon Road mean that the presentation of the proposed development to Canoon Road is inoffensive.

45 Mr Smyth opined that, when viewed from Canoon Road, either by foot or by vehicle, the two driveway areas providing access to units 2, 3, 4, 5, 6 and 7 would present as excessive expanses of paved area. The western of the two driveway areas is proposed to serve units 2, 3 and 4 and would also incorporate a turning area or additional car space at its eastern end. The eastern of the two driveway areas is proposed to serve units 5, 6 and 7 with the parking for units 5 and 6 being proximate to the Canoon Road frontage and that for unit 7 being down a driveway of some 30 m in length along the boundary between the site and 41 Canoon Road. Each of the two crossings of the footpath is some 3 m in width.

46 The landscape plan shows a significant degree of landscaping in the vicinity of these crossings. Although the scale of the plantings proposed in the landscape plan would not and could not, for obvious safety reasons, obscure the view to and from the driveway of the pedestrian footpath and the carriageway of Canoon Road, I am satisfied that the landscaping would provide sufficient softening of this presentation to be acceptable.

47 In addition, during the course of the view, observation was made of the driveway and paved or gravel areas to the front of a number of premises on Canoon Road to the east of the site. In particular, a house to the east of the site and on the opposite side of Canoon Road had a considerable expanse of gravel surfaced parking area with little or no landscape softening of its presentation to Canoon Road. The present proposal although, perhaps, of somewhat greater scale than that observed elsewhere in Canoon Road is not so out of scale to be unacceptable in its context.

48 This concern of the council does not warrant refusal of the present application. If, for any future application, the council retained concerns about this presentation, it would seem to me that this would appropriate to be dealt with by adjustment to the landscape plantings.

49 As the paved area serving units 2, 3 and 4 has adequate space for vehicles to turn and exit in a forward direction, I am satisfied that the location of this driveway is acceptable.

50 It was Mr Smyth's opinion that the length and extent of the hard surface of the driveway to unit 7, being adjacent to the common boundary with 41 Canoon Road, was excessive. In the course of the view, Mr Blyth drew attention to the extent and length of the hard surface area of the recently constructed driveway along the eastern boundary of 41 Canoon Road adjacent to 39 Canoon Road. In the course of his evidence, Mr Blyth expressed the view that it was likely that the extent of the hard surface on 41 Canoon Road was at least as great as that proposed for access to unit 7. He also expressed the opinion that the scope for landscaping along the boundary between the unit 7 driveway and 41 Canoon Road was similar to that between the 41 Canoon Road driveway and the boundary between that property and 39 Canoon Road. I am satisfied, from what was seen in the course of the view together with an examination of the plans, that Mr Blyth's evidence, in this regard, is accurate and this is not a matter to warrant amendment of the driveway let alone refusal of the application.

51 Mr Smyth also gave evidence as to his concerns that overlooking from units 3 and 4 to the adjacent property to the north, which is 3 Tarook Ave, was unacceptable. As part of the council's tendered bundle of documents, letters of objection were included from the then owners of 3 Tarook Ave. However, ownership of these premises has changed and the applicant tendered a more recent letter, from the new owner, expressing her support for the proposal and indicating that she had no concerns over the proposed design.

52 The living area windows and proposed private open space areas for units 3 and 4 are, because of the topography of the site and the necessity to provide acceptable access gradients within each dwelling, at a level where overlooking the rear private open space of 3 Tarook Ave is possible – at least for an area commencing approximately 2 m to the north of the proposed boundary fence between the site and 3 Tarook Ave.

53 Whilst he conceded that such overlooking was possible, it was Mr Blyth's evidence that the separation distance and proposed landscaping between the living areas of units 3 and 4 and private open space of 3 Tarook Ave were sufficient to alleviate these concerns.

54 It is correct that the plans show two steps in the landscaping area between the boundary of the site and 3 Tarook Ave before the commencement of the usable private open space of units 3 and 4. This provides a degree of separation between the private open space of these units and the private open space at the rear of 3 Tarook Ave. It is also correct that, as Mr Blyth noted in his evidence, the proposed landscaping treatment, if maintained by future residents of units 3 and 4, would also provide some screening to the private open space the rear of 3 Tarook Ave and a degree of protection for users of it.

55 In the course of his submissions, Mr Hannaford acknowledged that the support of the current owner of 3 Tarook Road was not determinative as sound planning was not merely for the here and now. However, he submitted that considerable weight should be given to this support for the application. He submitted that the combination of this support, the distance separation and the proposed landscaping should result in this aspect of the proposal being regarded as acceptable.

56 Mr Rigg, in his submissions, suggested that I should prefer the evidence of Mr Smyth and conclude that the degree of overlooking available was unacceptable.

57 In considering this matter, the plans and the view show that the living areas and private open space of units 3 and 4 would have an uninterrupted northerly aspect and bushland vista and, given their elevation as a consequence of fill necessary to correct the slope of the ground, would have very high solar access and general amenity. It is thus reasonable to assume that these living areas and private open spaces are likely to be used extensively by the residents of these units. Whilst the separation between the living areas and private open space of 3 Tarook Ave is probably sufficient to offset the overlooking consequences, I am not satisfied that the overlooking consequences of the location of the private open space of these units can be disregarded. The separation between the northern edge of the grass area of private open space of these units and the fence line with 3 Tarook Ave is 5 m. It is my assessment that this separation is inadequate. Although landscaping will provide some amelioration, it is not a complete answer and is, in any event, dependent on the goodwill of the residents of units 3 and 4 to ensure that it is maintained appropriately.

58 I am satisfied, on balance, that the likelihood of overlooking from the private open space of units 3 and 4 is unacceptable and is indicative of bad design. Although not as serious as the solar access defect dealt with below, the overlooking warrants refusal on its own.

59 Mr Smyth finally gave evidence of his concerns as to whether the solar access to the private open space areas of units 5 and 6 is acceptable or not. His concerns arose as a consequence of the necessary erection of a privacy fence between units 5 and 6, on one hand, and unit 7 on the other. Although he had not undertaken any detailed calculation, he expressed the opinion that the private open space to each of units 5 and 6 would not achieve the relevant and appropriate solar access which is required by cl 25(c) of SEPP 5. This reads, relevantly:

(c) Solar access and design for climate

The proposed development should, where possible:
(i) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space, and
(ii) involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation solar heating and lighting by locating the windows of living and dining areas in a northerly direction.

Note. AMCORD A National Resource Document for Residential Development, 1995, may be referred to in establishing adequate solar access and dwelling orientation appropriate to the climatic conditions.

60 Mr Smyth concluded that each of the relevant areas of private open space would not satisfy the AMCORD standard. The basis of this view was his assumption that the fence between units 5 and 6 and unit 7 was 1.8 metres high. Mr Blyth's evidence on this issue revealed that portion of each of these two private open space areas was a patio which was, in fact, some 300 mm higher than the level assumed by Mr Smyth. In re-examination by Mr Hannaford, Mr Blyth was invited to agree that, in light of this correction to the levels, the AMCORD standard would in fact be satisfied. However, Mr Blyth was only prepared to give evidence that if one “carried out the AMCORD exercise, there would be more sunlight than Mr Smyth concluded”.

61 The applicant tendered a copy of the Department’s SEPP 5 guide which contains a photograph at page 14 which is captioned “A resident of a SEPP 5 development enjoys her private open space”. By inference, I am invited to assume the solar access to units 5 and 6 would be similar. However, no specific evidence of calculations to support this was given on behalf of the applicant. I therefore find this photograph of little assistance in dealing with this issue.

62 Although the Court is not in a position to carry out the necessary calculations itself and the issue is, therefore, not able to be resolved precisely, I am satisfied that the evidence of the two expert planning witnesses, when considered together, must lead to me drawing the conclusion that, although the solar access position is somewhat better than that envisaged by Mr Smyth, it nonetheless is not capable of satisfying the minimum AMCORD standard.

63 The provision in SEPP 5 requires that the proposed development should, where possible [emphasis added] be of an appropriate solar access standard. Therefore, I have considered whether there is any acceptable reason why such compliance is not possible. Units 5, 6 and 7 are proposed to be constructed virtually entirely on 43 Canoon Road. This is an allotment with a northerly aspect to its rear and the topography of which slopes down to the north. There are no constraints of the site, whatsoever, that render impossible compliance with the solar access provision in AMCORD and thus with SEPP 5. The inability of the design to do so is simply a function of the overdevelopment proposed for the site by this application. Indeed, to the contrary, the topography of the site should make it easier to comply with this solar access requirement rather than place any inhibitions in its achievement.

64 This design failure, in itself, warrants refusal of the appeal.

Conclusion

65 In light of the conclusions which I have reached concerning overlooking from units 3 and 4 and the inadequacy of the solar access to the private open space areas of units 5 and 6, it necessarily follows that I have concluded that the appeal should be dismissed. However, I should not have discharged my duty in its entirety if I failed to respond, appropriately, to the summarising comments made by Mr Rigg in his closing submissions when he said:

At least one unit too many is proposed.

66 This, in my view, pithily and accurately summarises the council's position concerning the defects in the proposal. However, whether or not rectification of these defects requires the removal of one unit or more than one unit or some other more modest design is not a matter upon which it is appropriate for me to speculate.

Orders

67 The orders of the Court are, therefore:

1. The appeal is dismissed;
2. Development Application 401/02 for demolition of existing buildings and the construction of seven units for aged or disabled residents pursuant to SEPP 5 at 43 Canoon Road and 1 Tarook Ave, South Turramurra, pursuant to plans prepared by The Winter Group, reference number Drawings 20205 DA, 2D, 3C, 4D & 5D, dated 14 April 2003, 16 April 2003 and 14 April 2003, is determined by the refusal of development consent; and
3. The exhibits, other than exhibits H and N, are returned.

Commissioner of the Court