Thiessen Architects v Council of the City of Sydney

[2004] NSWLEC 395

Land and Environment Court

of New South Wales

CITATION:	Thiessen Architects v Council of the City of Sydney [2004] NSWLEC 395
PARTIES:	APPLICANT Thiessen Architects RESPONDENT Council of the City of Sydney
FILE NUMBER(S):	10404 of 2004
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Modification application .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 96AA Central Sydney Development Control Plan 1996 .
CASES CITED:	Moy v Warringah Shire Council 2004 NSWCCA 77; Zhang v Canterbury City Council (2001) 115 LGERA 373; Parsonage v Ku-ring-gai 2004 NSWLEC 337 ; .
DATES OF HEARING:	15 July 2004
DATE OF JUDGMENT:	07/23/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J Strati, solicitor Avendra Singh Strati & Kam RESPONDENT Mr D Parry, barrister INSTRUCTED BY Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

23 July 2004

04/10404 Thiessen Architects v City of Sydney

JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 96AA of the Environmental Planning and Assessment Act 1979 seeking a variation to a consent granted by the Court for the construction of a of a new building at 262 Castlereagh Street, Sydney. The modification application had been refused by the Council of the City of Sydney (the council).

2 In this context, it is appropriate to note the remarks in a decision of the Court of Criminal Appeal in Moy v Warringah Shire Council 2004 NSWCCA 77 where Sperling J (with whom Sully and Simpson JJ agreed) said at paragraph 80:

Section 96, on the other hand, is a facultative, beneficial provision. As such it is to be construed and applied in a way that is favourable to those who are to benefit from the provision.

3 Similar principles obviously apply to the consideration of an application pursuant to s 96AA.

4 There are three matters which are raised by the council as being determinative. They all relate to the solar impact on apartments at the adjacent block to the south known as the Hyde Park Regency building. Those are apartments 1306, 1407 and 1507.

5 Of those apartments, the first two were not in evidence, at least in any substantial fashion to cause Roseth SC to deal with them by noting such evidence, in an earlier modification application in which a decision was given on 29 May 2002.

6 This is of some particular importance when I come to consider whether or not and to what extent I should have regard to impacts on apartments in the building which are on the levels below level 15 because in (8) of the Senior Commissioner’s decision, he referred to his rejection of the application as being in order to safeguard the amenity of apartments on the fifteenth level or above.

7 The relevant controls are contained in the Central Sydney Development Control Plan 1996 (the DCP) in Part 6.1 which deals with amenity in buildings such as the one immediately to the south.

8 The DCP, at 6.1.4, dealing with the issue of solar access, reads follows:

Living rooms and private open-space should be the main recipients of sunlight in dwelling units. Where possible, sun access should be for a minimum of two hours per day on the equinox measured on the main window of the rooms or at the front edge of the open space.

9 The Court of Appeal’s decision in Zhang v Canterbury City Council (2001) 115 LGERA 373 requires that I should use these provisions of the DCP as the focus of my deliberations on this matter although they are not solely determinative in it.

10 I turn to consider the impact on the three apartments.

11 Apartment 1306 is impacted at the equinox on the north facing but secondary window of the master bedroom. Mr Parry, counsel for the council, properly conceded that the impact on this apartment would not be determinative and I agree with him.

12 I consider that this impact, because of this room being a bedroom and it having an alternate solar access available through another, larger window, is such that I should regard it as not only being not determinative but as not otherwise contributing to any basis for refusal of the modification application.

13 With respect to apartment 1507, it is clear from the shadow diagrams put in evidence by the council that there is no additional impact on sunlight to the living areas of this apartment at the equinox.

14 However, Mr Parry asked me to have regard to the additional impact at the winter solstice as he argues that I should go beyond the controls.

15 The position is that, at the winter solstice, there is no impact of any appreciable nature on window of the relevant apartment until some time between 1 and 2 PM when it becomes sufficiently qualitatively different to offend against the principle enunciated by Roseth SC in Parsonage v Ku-ring-gai 2004 NSWLEC 337 that:

For a window, door or glass wall to be assessed as being in sunlight, half of its area should be in sunlight.

16 There is no solar deprivation of the relevant window of apartment 1507, in that sense, until sometime between 1 and 2 PM.

17 I therefore satisfied that, even if I were to apply the minimum two hours that is dealt with by the DCP as being appropriate for consideration at the solstice, rather than equinox, there would still not be a sufficient effect on apartment 1507 to warrant refusal.

18 The position is somewhat different with respect to apartment 1407.

19 In this regard, I should again note that the apartments at level 14 were not apparently put in evidence before Roseth SC in the earlier s 96 modification application appeal.

20 The shadow diagrams, as settled by the expert planning witnesses, for the living room area of apartment 1407, show that there is no additional impact on the window as at 10 AM at the equinox and that there is, in very rough terms, approximately 20 % of the window unshaded at the time.

21 At 11 o'clock, there would appear to be, on the original approval, close to (if not exactly) 50% of the window unshaded. That would alter, again in rough terms, with some 25% to 30% of the area that would have been unshaded being shaded as a result of the modification application if it were to be approved.

22 A similar position applies at 12 o'clock and a more dramatically impacting position arises at 1 o’clock. It is common ground that at 2 PM and later this window is entirely shaded as a consequence of shadows cast by other buildings are already constructed.

23 Applying the above quoted principle from Parsonage (which I choose to adopt as appropriate in this case), it is clear that, even if the window to apartment 1407 only just (or not quite) obtained the necessary two hours sunlight as required by the DCP on the present plans, it will certainly not so do so if the modification application were to be granted

24 Mr Parry’s submission, in this regard, was that the there was only just an appropriate level of solar access (if it were achieved) and that, as a consequence, it ought jealously be guarded.

25 Mr Strati, solicitor for the applicant, on the other hand, put the proposition that, as there was an existing non-compliance for this apartment, it was not inappropriate and unacceptable to increase that degree of non-compliance.

26 I am not satisfied that the applicant's position is the appropriate one – the correct position has a proper analogy in the old saying “In the land of the blind, the one-eyed man is king.”

27 The proposed development is located in a highly developed urban area. The proper position is that, in such a highly developed urban area (this being the reason for adoption by the council of controls based on the equinox), such solar access as is able to be afforded in those circumstances ought jealously be guarded. The proposed solar access of just or almost compliance for the living areas of apartment 1407 is appropriate and is what results from the presently approved development.

28 The fact that solar access would be lowered by the proposed modification so that, in a rough terms, there would be somewhere between a 25% and 33% reduction in that access, at the various measuring times of the shadow diagrams, is unacceptable. It is so unacceptable that the principle in Moy is of no assistance to the applicant.

29 I therefore determine that the modification application should be refused.

30 As a consequence, there is no need to deal with the matters raised by the council as to whether or not a number of conditions that were proposed by the council and not agreed to by the applicant ought be a matter determinative in these proceedings.

31 The orders of the Court therefore are:

1. The appeal is dismissed;
2. Application pursuant to s 96AA of the Environmental Planning and Assessment Act 1979 to modify a development consent granted in proceedings 10728 of 1999 is determined by the refusal of development consent; and
3. The exhibits, other than Exhibit D, may be returned.

Tim Moore

Commissioner of the Court