Urban Peninsula Pty Limited v Ku-ring-gai Council

[2006] NSWLEC 196

Land and Environment Court

of New South Wales

CITATION:	Urban Peninsula Pty Limited v Ku-ring-gai Council [2006] NSWLEC 196 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: Urban Peninsula Pty Limited RESPONDENT: Ku-ring-gai Council
FILE NUMBER(S):	10110 of 2005
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Overshadowing of ‘Fernleigh Gardens’
LEGISLATION CITED:	Ku-ring-gai Planning Scheme Ordinance as amended by LEP194, (KPSO) State Environmental Planning Policy No 65 - Design Quality Of Residential Development, (SEPP65) Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:	Allan Robert Cooley and Janet Louise Patterson v City of Sydney Council [2005] NSWLEC 55
DATES OF HEARING:	07/12/2005 and 08/12/2005; Mention 02/02/2006; 15/02/2006; 29/03/2006
DATE OF JUDGMENT:	04/21/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr D Baird, solicitor with Ms J Studdert, solicitor SOLICITORS: Maddocks Lawyers RESPONDENT: Mr P Rigg, solicitor SOLICITORS: Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

21 April 2006

10110 of 2005 - Urban Peninsula Pty Limited v Ku-ring-gai Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ku-ring-gai Council (the council) of a development application to demolish existing dwellings and associated structures and to erect a five-storey residential flat building providing thirty-one (31) dwellings [originally 35] and forty-nine (49) [originally 66] car parking spaces in three (3) basement levels at Lot C, DP 377347 (No 2 Buckingham Road); Lot B, DP 377347 (No 4 Buckingham Road); Lot F, DP 378495 (No 6 Buckingham Road), being Nos 2 to 6 Buckingham Road, Killara.

2 I visited the land in company with the parties on the morning of the first day of proceedings. Local residents gave evidence.

3 I have concluded that the application as amended when considered under s 79C of the Environmental Planning and Assessment Act 1979 should succeed and approval is granted subject to conditions. I am satisfied that the only contested issue that remained was that of overshadowing of No 568 Pacific Highway, being ‘Fernleigh Gardens’ (originally known as ‘Fernleigh’) and I am satisfied that issue is not a reason to refuse the application.

The land

4 The land is situated on the southern corner of Buckingham Road and the Pacific Highway. The land is triangular in plan shape with a northern frontage of 79.5m to Buckingham Road, a cranked southern boundary of about 86m, a western boundary of around 45.7m and a boundary to the Pacific Highway 14.5m, and an area of 2,745m2.

5 The land slopes from the northern boundary down to the southern site boundary at a grade of around 24%. The land falls steeply from Buckingham Road where its topography was modified to accommodate the existing structures.

6 On each of the three allotments is erected a two-storey dwelling, two of these have in-ground pools.

7 Buckingham Road is wide when compared to other roads intersecting with the Pacific Highway. The distance between the front alignment of the land to the kerb line of Pacific Highway is 3.4 metres and in Buckingham Road the council’s verge is 6.2m. This verge supports some significant vegetation.

8 The area is characterised by dwellings of various styles with established vegetation and gardens. Along the Pacific Highway there are some residential flat buildings.

9 On the northern side of Buckingham Road and across Pacific Highway to the east, there are single dwelling houses.

10 To the south of the land at No 568 Pacific Highway there is a residential flat building known as ‘Fernleigh Gardens’ and a double-storey dwelling house on its southern boundary. Killara Golf Course is located beyond those properties further to the south.

11 On the western boundary of the land a driveway gives access to No 6A Buckingham Road.

Relevant planning controls

Ku-ring-gai Planning Scheme Ordinance as amended by LEP194, (KPSO)

12 Under the provisions of the KPSO, as amended by Local Environmental Plan 194, (LEP194), the land is zoned residential 2(d3) and the proposal is permissible with consent as multi-unit housing or a residential flat building. On 28 May 2004, the land was rezoned for multi-unit housing under LEP194, which amended the KPSO.

13 Under cl 25C(1) of the KPSO, the aims are:

(a) to encourage the protection and enhancement of the environmental and heritage qualities of Ku-ring-gai,
(b) to encourage our orderly development of land and resources in Ku-ring-gai,
(c) to encourage environmental, economic, social and physical well-being so that Ku-ring-gai continues to be an enjoyable place to live in harmony with the environment.

14 Under cl 25C of the KPSO, the objectives are:

15 Under cl 25D(1) of the KPSO - Heads of consideration for consent authority. Consent must not be granted to any development of land to which this part applies unless the consent authority has regard to:

16 The objectives for residential zones under cl 25D(2) of the KPSO are:

17 Under Division 5, cl 25I(1) of the KPSO, further controls are specified. Before granting consent to development of the purpose of multi unit housing on land to which this part applies, the consent authority must take into account the following:

18 There are no specific standards under the KPSO applying to solar access and the objectives in bold above are to be met.

19 Height is also in issue and under s 25I(8) of the KPSO, the maximum number of storeys and ceiling height, subject to subclause 5 and clause 25K, buildings on land to which this part applies are not to have:

(a) more stories than the maximum number of stories specified in Column 2 of the Table to this subclause,
(b) or given the number of storeys in the building, a perimeter ceiling height greater than that specified in Column 3 of that Table.

20 Applying the height standard in the table the maximum number of storeys in the 2(d3) zone, is 4 and the maximum height is 13.4m not including the setback floor on the top of the building. The reduced and setback floor must not exceed 60% of the floor area below.

21 Under cl 25M of the KPSO the non-discretionary development standards are set out.

Pursuant to section 79C(6)(b) of the Act, the development standards for number of storeys, site coverage, landscaping and building setback set out by this part are identified as nondiscretionary development standards for development for the purpose of a residential flat building on land within Zone No 2(d3).

22 Thus if a proposed development exceeds the height standard a State Environmental Planning Policy No 1, (SEPP1) objection need be upheld, prior to consent being issued.

State Environmental Planning Policy No 65 - Design Quality Of Residential Development, (SEPP65)

23 SEPP65 applies to the land and the development application was accompanied by an assessment under that instrument.

24 Other planning controls are:

· Residential Flat Design Code;

· DCP43 Car Parking;

· DCP47 Water Management Plan;

· DCP 55 Ku-ring-gai, Multi-unit Housing; and

· DCP40 Construction and Demolition Waste Management.

25 Development application No 1353/04 was lodged with the respondent council on 17 December 2004 to demolish the existing dwellings and associated structures on the land and to erect a five-storey residential flat building providing thirty-one (31) dwellings, comprising eight (8) x one bedroom apartments, seventeen (17) x two bedroom apartments and six (6) x three-bedroom apartments. Also proposed is a three-level basement car park providing forty-nine (49) spaces consisting of forty-nine (49) spaces including eight (8) visitor spaces and four (4) disabled spaces. Vehicular access would be provided off Buckingham Road.

26 The development application was accompanied by a landscaping plan that shows the existing established vegetation upon the road reserve of Buckingham Road and perimeter vegetation upon the land to be preserved. New landscaping in deep soil and on the rooftop terraces is also proposed.

27 Storm water easements are proposed through downstream properties. The application included a valuation determining fair compensation for an easement over No 568 Pacific Highway, Killara, in SP 7759. Exec-Estate Pty Limited, the strata manager for SP 7759 has objected to the development application and the proposed storm water easement.

28 On 29 October 2004, the council asked the applicant for owner's consent(s) for the provision of drainage easement(s) to facilitate gravity drainage under DCP 47 Water Management.

29 On 6 January 2005 the applicant advised that it would not (at least in the short term) be providing evidence of a drainage easement and requested instead the council continue to assess the development application on the basis of information presently before it.

Notification

30 The application was notified to nearby owners and occupants between 5 January 2005 to 4 February 2005 and the council received nineteen (19) letters of objection. The names of those who objected were included in the report to the council:

· D & C Grundy: No 6A Buckingham Road

· J Gilroy No 8 Buckingham Road

· A & S Hughes No 8A Buckingham Road;

· C Absalom No 10 Buckingham Road;

· S Bannan No 11 Buckingham Road;

· E Levy No 12 Buckingham Road;

· R Parker No 16 Buckingham Road;

· S Barratt No 25 Buckingham Road;

· J Hooke No 26 Buckingham Road;

· C J Armitage No 27 Buckingham Road;

· M & J McDacy No 2B Buckingham Road;

· J Morgan No 3/567 Pacific Highway;

· Proprietors SP 7759 No 568 Pacific Highway;

· M & I Lurie No 7/568 Pacific Highway;

· E McIntyre No 8/568 Pacific Highway;

· M Leechman No 12/568 Pacific Highway;

· A Coward No 3 Warwick Street;

· J L & R O Block No 7 Warwick Street; and

· N H & S E S Watson No 37 Marian Street.

The council’s decision

31 By notice dated 7 May 2005 the council refused the application for sixteen reasons and those reasons are reflected in the issues.

The hearing

32 The appeal was filed on 16 February 2005.

33 Mr J D Chesterman, AM, was the Court-appointed town-planning expert. His statement of evidence is dated September 2005, [Note: Exhibit 6 and supplementary statement Exhibit 7]. He provided a supplementary statement in Exhibit M dated 7 February 2006 following amendments of the architectural plans.

34 Mr R N Dickson, architect and urban designer explained the original plans on site and in Court, the amendments of the plans and the shadow diagrams.

35 Mrs E McIntyre resident of No 8/568 Pacific Highway, ‘Fernleigh Gardens’, Killara, explained that she could not agree with the amended shadow diagrams that accompanied the amended architectural plans. She asked for more detail and that she had “…need [of] definite lines.” She stated, that if the proposal were erected “…[w]e will be in dark units forever. This will ruin our lives and our enjoyment of life. If we burn electricity it is not environmentally friendly.” She also expressed concern that the level of daylight received at her dwelling at unit No 8 would be reduced by the proposal.

36 She referred to a letter of the Royal Australian Institute of Architects that dealt with the situation where neighbouring houses are threatened by undermining of foundations as a result of development nearby. This letter was generated as a result of the partial collapse of an apartment block at Lane Cove when the tunnel being excavated under that building collapsed. She stated that she was concerned about the excavation associated with the proposal and the impact it might have on the foundations of her building, ‘Fernleigh Gardens’. She asked if “…any damage will be made good” by the applicant. She later asked, “If there is damage to our buildings and so bad that we have to move out what is the situation then.” [Condition 99 extensive dilapidation report required.]

37 She referred to problems with traffic in the immediate vicinity of the land and said that she “…can’t agree with the applicant that the hourly peak hour flow would be 9.2 cars from the proposed thirty-one (31) units. She was concerned that “…[t]his is theoretical” and in fact there would be “…a 200% increase [in traffic] with one block of units.”

38 Mr M Leechman, resident of No 12/568 Pacific Highway, ‘Fernleigh Gardens’, Killara, indicated that his main concerns are that the current building plans do not comply as the building facing Buckingham Street would be “…too long.”

39 He said that he agreed with Mrs McIntyre, and that although the inclusion of skylights might benefit Units 8 and 10 other units would not be benefited. He reiterated,

…[t]he proposal will affect our building adversely. Like beauty in the eye of the beholder. Any reduction in natural light is significant and undesirable. If you take the point that ‘Fernleigh Gardens’ is not the lightest building in the world. That is the truth. If you don’t get much light in the first place it is significant [if it is lost]. The [more the plans change the] worse it appears to become. People will be substantially overshadowed. Three garden units will be totally shaded by the proposal.

40 Other residents gave evidence on site on the first day of the proceedings.

41 Mr D G Briggs, solicitor and town planner, prepared a statement of basis facts dated 22 April 2005.

The issues

42 On 29 April 2005 the council filed an amended statement of issues.

Inadequate information

Particulars

Landscaping

Particulars

This anomaly needs to be addressed not only for landscaping purposes but also because of its solar access implications. Sections through the setback area in the location of Units B102 and B103 are required to clarify the issue.

Overshadowing

Particulars

Owner(s) consent

4. The applicant has failed to produce the necessary owner(s) consent for works proposed on neighbouring properties.

Streetscape impact

Particulars

The proposal will not achieve an appropriate level of separation to No 8a Buckingham Road (western boundary) due to the minimal side setback proposed. The 2 metre landscape strip between the car park ramp and the adjoining property is not sufficient to ensure the establishment of effective landscaping as it precludes the planting of canopy trees.

Apartment layout

Particulars

Double-loaded corridor

Particulars

Common and private open space

Particulars

(a) The relative level to the street and proximity to the street boundary (5.3 metres) as well as the absence of substantial landscaped screening will compromise the amenity of these open space areas.

Particulars

Density

Particulars

(a) The application proposes a floor space ratio of 1.4:1, which exceeds Council's controls by 8% and does not satisfy Clause 4.2 C-4 of DCP 55, which limits the maximum floor space ratio to 1.3:1.
(b) The topographical and other constraints of the site should inhibit the full floor space allocation from being achieved but as this control is actually exceeded, an unsatisfactory design outcome has resulted.

43 The principal-contested issues prior to the plans being amended were that the:

1. building should sit in a landscaped setting and as it is presently proposed it is too close to Buckingham Road mainly in the eastern portion and there is insufficient landscaping, as supported by Mr Taylor;

2. close proximity of the driveway to the western boundary and the inadequate width of the landscaping strip to the west of the driveway, as supported by Mr Taylor;

3. length of building to Buckingham Road;

4. FSR of 1.41:1 being indicative of overdevelopment of the site and there should be a deletion of a unit at the eastern end; and

5. bulk, height and scale as it impacts on overshadowing.

44 After the plans were twice amended the only issue that remained in issue was that of overshadowing of No 568 Pacific Highway, being ‘Fernleigh Gardens’.

Amended plans

45 The first amended architectural plans were filed with the Court on 18 January 2006 in Exhibit L and Mr Chesterman commented on these plans in a statement to the Court dated 7 February 2006 in Exhibit M.

46 The latest amended architectural plans in Exhibit 17 were received by the Court on 8 March 2006, and showed the proposal further setback from Buckingham Road to provide a greater amount of landscaping, towards the eastern end of the northern elevation, [Note: Exhibit H showed the amended landscaping and this was confirmed in Exhibit 17, the latest amended plans].

47 In the latest amendment of the architectural plans, [Note: Exhibit 17] the driveway to the western boundary was shown relocated to be under the proposed building and the width of the landscaping to the west of the driveway, was increased to 9.6m as was previously indicated on the Exhibit L plans.

48 The length of building facing onto Buckingham Road was addressed by providing an indentation in the façade near its midpoint. This indentation was shown on both the Exhibits L and 17 plans.

49 The FSR was reduced slightly from the original 1.41:1 to 1.25:1 and the coverage reduced to 35% and Mr Chesterman was satisfied that, as a result, the bulk and scale proposal would be less, and “…significantly improved” [Note: Exhibit M statement on the 18 January 2006 amended architectural plans].

50 The bulk, height and scale as it impacts on overshadowing was reduced in the amended plans in Exhibit 17, such that the setback from the common eastern boundary with ‘Fernleigh Gardens’ was increased to 9.6m and the height was also adjusted slightly downward to ameliorate shading impacts.

51 The principal contested issue remained the overshadowing of ‘Fernleigh Gardens’ and the extent of the existing and likely future overshadowing is was shown in the diagrams in Exhibit 18 and addresses the impact of the latest amended proposal shown in Exhibit 17.

The evidence and findings

52 On 15 February 2006, in the Court, Mr Baird, for the applicant, submitted that over the course of the hearing there had been significant refinement of the design and reduction in the density, and scale of development. He submitted that the number of dwelling units proposed had been reduced from thirty-five (35) to thirty-one (31).

53 Mr Baird submitted that the Court would accept the evidence of the Court-appointed landscape expert, Mr Taylor, in Exhibit N who endorsed the landscape concept plans in Exhibit H as further amended in Exhibit 21, and was satisfied that the proposal would provide satisfactory amenity for occupants of the development and of the public and would thus meet the objectives of DCP55.

54 Mr Baird submitted that Mr Chesterman, in his statement in Exhibit M, considered the amended design had been significantly improved. He submitted that the original plans were in error in respect of site coverage and now the proposal with coverage limited to 35%, would now comply, [Note: Latest amended architectural plans in Exhibit 17].

Overshadowing of ‘Fernleigh Gardens’

55 Under cl 25D(2) of the KPSO, the Court must be satisfied that the proposal would “…ensure sunlight access to neighbours and to provide sunlight access to occupants of the new buildings,” and under cl 25I(1) of the KPSO, “…the impact of any overshadowing” is to be taken into account.

56 Mr Baird submitted that overshadowing of ‘Fernleigh Gardens’ is a “…difficult issue.” He referred to the evidence of Mr Dickson that “…there will be some increase in the overshadowing to that property and in particular there would be an impact on the amenity of Mrs McIntyre.” He submitted there is a need to critically assess the solar diagrams in Exhibit L [and as amended in Exhibit 18], and to take into account the fact that Mrs McIntyre’s balcony faces south, away from the sun.

57 Mr Baird submitted that it is necessary to take into account site conditions and especially the extremely dense vegetation near and on the common boundary with the subject land. He submitted that this vegetation “…[m]ust lead to an impact on solar amenity, and direct sunlight onto the recessed balcony [of Mrs McIntyre], must be described in qualitative terms, as dappled and oblique.”

58 He submitted that the building to balcony distance “…where the shade intersects, is 16m.” He submitted that the further concessions offered by the applicant at the hearing, on 15 February 2006, to increase by 600mm the setback of the proposal to the south and west, would lead to an improvement in the solar access to Mrs McIntyre’s apartment and to the other nearby apartments when compared to that originally planned. He submitted that the shadow diagrams indicate, “…[w]e are overshadowing at the winter solstice in the late afternoon, while at the equinox [there would be a] significant improvement in solar access.” He submitted that “…there would be an impact for a short period, however, the vast majority of units would obtain solar access.”

59 Mr Baird asked a rhetorically, whether “…‘Fernleigh’ [would] pass AMCORD if [AMCORD’s requirements] were applied to it. He suggested, “…that might be a matter for the jury and it might not meet contemporary standards.”

60 He submitted, “…[t]his is a very good proposal and endorsed by Mr Chesterman save for the combining of units, [to require the amalgamation of BG01 and BG02] and Mr Leechman grudgingly accepted the improvements.”

61 Mr Rigg submitted, “…with the revisions [to the plans] there has been benefit but there still remains one significant matter, that concerning solar access to ‘Fernleigh’ at No 568 Pacific Highway.”

62 He submitted the significance of the KPSO, as amended by LEP194, and in particular under cl 25M that defines the non-discretionary development standards, of height, site coverage, landscaping, building setbacks, is not challenged. However, he submitted, “…the development does not satisfy the objectives of 25I(1)(b) of the KPSO requiring the assessment of impact caused by overshadowing.” He also referred to the question of sunlight access under cl 25D(2)(k) of the KPSO. As a result of overshadowing there would be an “…unacceptable impact on six of the units, in ‘Fernleigh Gardens’,” he submitted. He submitted that “…[s]olar access is important as this contributes to a pleasant environment, and reduces reliance on artificial light and heat.”

63 Mr Rigg submitted, the local resident objections highlighted, in their evidence, their real concern, as adjoining owners, for solar access, [Note: Exhibits 15, 16 from Mrs McIntyre and Exhibit 12 further residents submissions]. As a general rule of thumb, he stated, 3 hours of sunlight, in midwinter, to principal portions of outdoor living areas between 9am and 3pm is appropriate, and where the existing provision of sunlight is below that, a further reduction of 20% in solar access would be unacceptable. Mr Rigg submitted, referring to the evidence of Mr Dickson, that on 21 June, Mrs McIntyre would have no solar access on the terrace to her unit.

64 Despite the requirements of cl 25M (non-discretionary development standards) being satisfied, the changes to the KPSO “…don’t set aside to nil, her amenity that would not be so badly affected by lack of sunlight on 21 June”. If it were not for the poor sunlight access to ‘Fernleigh’ the council would consider the development appropriate, however, he submitted, “…because of the affectation on ‘Fernleigh’ the council asks the Court to not approve this application.”

65 Mr Baird submitted, in reply, that the objective of cl 25D(2)(k) of the KPSO must be read to require “…a reasonable level of solar access,” and as the loss of sunlight is not so great, the application does not warrant refusal. He submitted there is a need to have regard to the totality of the development and balance the positives against the negatives.

66 Mr Chesterman in Exhibit M stated:

The diagrams submitted indicated that windows in the side of the adjoining building to the south, will receive three hours of sun in midwinter and that at least some of the open space to the south of this building also will. It is my view, given the orientation of the next-door building and the extreme topography, that this would be a reasonable outcome. It can be seen from the diagrams indicating the shadow at the equinox that the effect would not last for along period of the year.

67 I accept the evidence of Mr Chesterman, in regard to overshadowing generally, and I would not refuse the application for reason of inadequate solar access.

68 The terrace to Mrs McIntyre’s, Unit No 8, and the living room windows facing onto that terraced would receive no sunlight, in midwinter, during the day, as a result of the shading effect of ‘Fernleigh’ itself, [Note: Exhibit 23]. However, the proposal would shade the roof of the terrace from around 2.30pm in midwinter.

69 Presently, the western side windows of Unit No 8, and Mrs McIntyre’s study window in particular, receive meaningful sunlight, in midwinter, from around 10.30am until around 3.00pm. The proposal would reduce the sunlight hours from around 10.30am until around 12.30pm or a reduction of over 2 and one half hours of sunlight or about 50% less. However, as that part of the proposal that casts the shade over the western wall of ‘Fernleigh Gardens’ is complying in terms of height and setback, I would not refuse the application for reason of this reduction in sunlight. Also, as the shadow diagrams show the sunlight on the western wall increases after the shortest day and around the equinox there is more sunlight on that wall.

70 I am satisfied that the objectives under cl 25D(2) of the KPSO, that the design of the proposal would “…ensure sunlight access to neighbours and [would] provide sunlight access to the occupants [of the proposal],” and under cl 25I(1) of the KPSO, “…the impact of any overshadowing” has been taken into account.

71 I have carefully studied the existing and proposed shadow diagrams in Exhibit 18 and I am satisfied that given the setback of the proposal from the common boundary of No 586 Pacific Highway and the subject land, its orientation, height, the extent of overshadowing of ‘Fernleigh Gardens’ would not be so great as to warrant refusal of the application.

State Environmental Planning Policy No 1 objection to height standard

72 There is a breach of the height standard, under cl 25I(8) of the KPSO, as amended by LEP194. Mr Baird submitted that Messrs Chesterman and Dickson supported the SEPP1 submission in the amended statement of environmental effects, [Note: Exhibit O]. He submitted that on the basis of this SEPP1, the Court also should support these objections and find the objection well founded. He submitted there is no overall prejudice to nearby residents as the height is constant and there is no breach of the FSR under DCP55.

73 Mr Baird submitted, based on the oral evidence of Mr Chesterman, that those parts of the proposal, that exceed the height standard of cl 25I(8) of the KPSO, are not those that would cause overshadowing of the adjoining property. He submitted this was a “…potent piece of evidence, as even if the proposal were compliant in height there would be no change to the extent of [shade].” It would “…not be a fair and reasonable impost on an applicant to make it comply in terms of height,” he submitted.

74 He submitted, “…on balance …the matters of fundamental design have been addressed and [there have been] significant improvements. The reduction in height and increased setbacks leads to development that on balance is satisfactory example of modern urban design.”

75 Mr Chesterman in Exhibit M stated:

SEPP1 objections, have been submitted by the applicant, that addresses two LEP194 standards, namely: (a) exceedance of the 1.2 metre height limit on a parking basement, (b) an increase in site coverage from 35% to 37.5%. These inconsistencies with the LEP standards have been generated by the difficulty of placing the garage ramp below the building on an extremely steep part of the site and by the narrowness of the site at its eastern end. There has been no increase in the overall higher the building, in FSR (floor space ratio) or loss of reasonable space for landscaping. It is my view that the SEPP1 objections should be supported.

76 Given the latest amendments to the plans to decrease the site coverage to conform to the 35% standard, there is now need only to consider one SEPP1 objection and that is to height.

77 I accept the evidence of Mr Chesterman that the SEPP1 objection to height is well founded and in the circumstances of this case compliance with the standard would be unreasonable or unnecessary.

Amalgamation of BG01 and BG02

78 Mr Baird submitted that the Court’s direction is required in respect of the condition to amalgamate Units BG01 and BG02. He submitted that Mr Chesterman’s candour is self-evident in seeking to combine these two units. He submitted that the proposal to maintain separate units relates to the applicant’s “…commercial imperative” and would be “…happy to accept the Court’s ruling, and would submit to a condition of amended floor plan and include in the plans in Exhibit 17.”

79 The reason for the amalgamation of two of the units is to provide through ventilation, adequate daylight and sunlight to the resulting units. Mr Chesterman also sought by amalgamating the units to reduce the extent of excavation against the western wall of the building. I am satisfied that if the units were not amalgamated, each would be likely to receive sufficient daylight and given the limited depth of each some natural ventilation. Proposed Unit BG01 would receive midwinter sunlight throughout the day. Proposed Unit BG02 on the southern side would receive no midwinter sunlight between 9.00am and 3.00pm. I consider that one unit such as this with poor orientation is acceptable and it would be a matter of buyer, beware. The extent of excavation is not such that amalgamation would be required. Thus, I would not require amalgamation of these units.

Other matters

80 Mrs McIntyre was also concerned to maintain a reasonable level of daylight, to her Unit No 8 in ‘Fernleigh Gardens’.

81 In Allan Robert Cooley and Janet Louise Patterson v City of Sydney Council [2005] NSWLEC 55, I formulated a planning principle in regard to access to daylight.

Where a person has been enjoying daylight (as distinct from sunlight) from a window or skylight of a dwelling for a considerable period of time, the preservation of this amenity should be given major weight. If a structure is to be erected near the window or skylight, it should not intrude in a significant way within a plane set at 45 degrees to the horizontal at the sill (or, in the case of a skylight, the edge of the skylight nearest the structure), and vertical planes at 45 degrees in plan fanning out from each side of the window.

82 If that principle were applied here, the development of the height proposed would be setback far enough from the common boundary with ‘Fernleigh Gardens’, so as to not unduly adversely impact on daylight to any of the units in ‘Fernleigh Gardens’ or the proposal. For the purposes of testing daylight on the western wall of ‘Fernleigh Gardens’, the western windows of Unit No 7, ‘Fernleigh Gardens’ of Mr and Mrs M & I Lurie, on the ground floor were tested. This unit is below Unit 8, the dwelling of Mrs McIntyre and offset slightly in plan.

83 Mr Dickson explained by reference to Drawing No A301, Revision C and Section AA, the floor level of Unit No 7 is around 118.4m AHD and the sill level would be about 750mm above that, at say 119.1m AHD. He told the Court that the corresponding level of the top of the building, opposite that window, would be 129.7m AHD or a 10.6m height difference at the eaves. As the separation between these two features is 17m, the angle at the sill of the window of Unit No 7 would be less than 45 degrees and thus applying the above planning principle there would be adequate daylight in the window of Unit No 7. [Note: Exhibit 17]. As a result of this test it may be ascertained that a sufficient daylight would be obtained at the western windows of Unit No 8.

84 Mr Baird also pointed to the fact that some of the trees that presently obscure the dome of the sky from the Unit 7 window would be removed as a result of development of the land and the level of daylight would be increased thereby.

85 I would not refuse the application for reason of an adverse impact on daylight on the western windows of ‘Fernleigh Gardens’.

86 Mr Baird submitted that the inclusion of skylights, in the terrace eaves overhang of Units Nos 8 and 10, offered by the applicant, would assist in ameliorating the adverse impacts of overshadowing by allowing in more daylight to the terraces and indirectly the living rooms of these units. This, the applicant was prepared to carry out at its expense, including submitting a development application to the council for this work. Mrs McIntyre did not embrace readily this offer.

87 I consider the amount of daylight on the terraces of Units No 8 and 10 and within the living rooms that face onto those terraces, would be increased by providing the skylights suggested by the applicant. Whether these skylights are provided is a matter to be negotiated between the applicant and the nearby residents.

88 For the above reasons, the appeal is upheld.

Conditions

89 The amended conditions are those in Annexure A are based on those in Exhibit 13 as amended slightly during the hearing.

Costs

90 Mr Baird asked, “[i]f agreement on costs cannot be resolved between the parties within fourteen days of the date of the order, the parties would seek an order giving liberty to restore on three days notice.” I understand that the parties are in agreement on the question of costs thrown away as a result of amendments of the plans. However, should the parties not agree, I grant liberty to restore on three days notice.

Orders
91 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. The State Environmental Planning Policy No 1 objection to the height standard is well founded and in the circumstances of this case, compliance with the standard would be unreasonable or unnecessary.

3. Development application No 1353/04 lodged with the respondent council on 17 December 2004 (as amended) to demolish the existing dwellings and associated structures on the land and to erect a five-storey residential flat building (originally providing thirty-five (35) dwellings), now providing thirty-one (31) dwellings, comprising eight (8) x one bedroom apartments, seventeen (17) x two bedroom apartments and six (6) x three-bedroom apartments above a three level basement car park providing forty-nine (49) spaces is approved subject to Conditions 1 to 116 in Annexure A.

4. Liberty to restore on three days notice on the question of costs as a result of the amendments to the plans.

5. The exhibits except for Exhibits H, J, K, L, O and P, 9, 10, 13, 17, 18, 19 and 20 are returned.

S J Watts

Commissioner of the Court

sw

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

31/05/2006 - The application was amended during the hearing and Order No 3 should reflect this change. - Paragraph(s) Order No 3 is amended to reflect the fact that only thirty-one dwellings comprising eight (8) x one bedroom apartments, seventeen (17) x two bedroom apartments and six (6) x three-bedroom apartments above a three level basement car park providing forty-nine (49) spaces are now proposed. Also the conditions were amended to update the plan numbers.