Urbancorp Pty Limited v Nambucca Shire Council

[2006] NSWLEC 705

Land and Environment Court

of New South Wales

CITATION:	Urbancorp Pty Limited v Nambucca Shire Council [2006] NSWLEC 705
PARTIES:	APPLICANT Urbancorp Pty Limited RESPONDENT Nambucca Shire Council
FILE NUMBER(S):	10198 of 2006
CORAM:	Moore C
KEY ISSUES:	Development Application :- Solar access Excavation .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Nambucca Local Environmental Plan 1995 Development Control Plan for Residential Development Parking Control Plan DCP No. 1 Development Control Plan No. 10 Exempt and Complying Development
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373; Parsonage v Ku-ring-gai [2004] NSWLEC 347; Manzie v Willoughby City Council (1996) NSWLEC 26
DATES OF HEARING:	21 November 2006
EX TEMPORE JUDGMENT DATE:	11/21/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr K Roser, barrister INSTRUCTED BY Fox Lawyers RESPONDENT Mr P Rigg, solicitor Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

21 November 2006

06/10198 Urbancorp Pty Limited v Nambucca Shire Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act), against the refusal on 16 June 2005 by Nambucca Shire Council (the council) of Development Application 2004/304.

2. The application seeks consent to demolish an existing dwelling and associated structures at 5 Hallidise Street, Nambucca Heads (the site) to be followed by the erection of six three-bedroom townhouses with each townhouse to have two stacked car parking spaces on the ground level.

3. The site is zoned 2(b) Medium to High Density Zone under the Nambucca Local Environmental Plan 1995 (the LEP) and the council has a Development Control Plan for Residential Development (the DCP) which is the basis of many of the matters in contention in this appeal.

4. The proposal has undergone a considerable negotiation and modification path since the development application was initially lodged on 20 April 2004. Indeed, matters were still being resolved between the parties until shortly before the date of the Court's hearing of the matter.

5. I have had the opportunity to inspect the site in company with the legal representatives of the parties, a number of residents and Mr Gary Shiels, the Court-appointed expert on town planning and traffic matters.

6. During the course of the site view, I not only visited the site but also had the opportunity of entering the private open space of two of the dwellings located immediately to the east.

7. It is the impact on these dwellings that form the crux of the issues requiring determination in these proceedings.

8. At this stage I should outline a number of matters that have either been resolved between the parties by way of conditions or, in my assessment, are not matters which either warrant refusal or warrant making any contribution to any refusal of the application.

9. The first relates to the use of stacked parking on the site – that being contrary to a provision in the Council’s Parking Control Plan DCP No. 1.

10. It was Mr Shiels’ evidence that, with minor modification to the internal doorway opening between the open parking area and the more inner garage area, his concerns with respect to stacked parking could be resolved. A modification to that effect was accepted as being appropriate by the applicant which, indeed, offered through its counsel, Mr Roser, to go modestly in excess of that which Mr Shiels indicated was desirable (although a multiple point turn will be required for vehicles entering or exiting the parking spaces).

11. It is accepted that, under the circumstances of the proposal, whilst not optimal, this is nonetheless acceptable.

12. Similarly, with respect to questions of gradient of the driveway – there being a significant fall both along the allotment from Hallidise Street through to its frontage with Raleigh Street and across the allotment from west to east – it was accepted that the question of provision of a satisfactory detailed design for the driveway can be resolved by a condition requiring the submission of a design plan for the driveway to the satisfaction of the council, prior to the issuing of a Construction Certificate (that being consistent with correspondence from the applicant’s that traffic engineering consultant Holland Traffic Consultants given by way of letter of the 30th of October 2006).

13. In addition, in the Statement of Issues, matters relating to the proposal’s bulk and scale and consistency (or otherwise) with the desired future character of the locality were put in issue the by the council.

14. It is clear that the area is a locality in transition. The dwelling which is presently located on the site as a rundown 1940s or 50s style fibro beach cottage and the development in the vicinity of the site is what Mr Shiels delicately described as of eclectic character – ranging from the blandly pedestrian of the 1980s through to more modern high-rise development to the east.

15. I am satisfied, after consideration of photomontages from both the Raleigh Street and Hallidise Street elevations, that, although significantly different to the character of the surrounding development, the design would nonetheless be acceptable in the context of its presentation in the neighbourhood both as to the present and desired future character.

16. There is also a modest non-compliance with the height limit of the proposal which, through parts of its middle section, does not comply with height limit in the DCP of 8 m maximum above natural ground level.

17. I have considered the presentation in the plans (which use a cloud depiction rather than an RL line depiction) to consider the degree of non-compliance of the height limit. It is my understanding, confirmed by the evidence of Mr Shiels in this regard, that those non-compliances make no contribution of any effective nature to the shadow impact of the proposal on the dwellings to the east.

18. As a consequence, I am satisfied that, as a matter of practicality, those exceedences are de minimus and do not warrant detaining me further.

19. The council also raised the issue of noise – both between the proposed dwellings and between them and the dwellings to the east. I am satisfied, given matters of general amenity and good neighbourliness in more closely settled urban areas, that within the general give-and-take required in such developments (as is evidenced already in the nature of the private open space relationship of the existing dwellings to the east) that this is also not a matter which is of concern.

20. The absence of a landscaping plan has been dealt with by condition and also no longer requires my consideration.

21. The matters which I indicated to the parties were of concern to me (and each of which was, in my preliminary view, potentially determinative) and about which I have addressed both by Mr Roser and by Mr Rigg, solicitor for the council, are:

• the impact on solar access the private open space of the middle unit in the properties to the east;
• the amenity of the private open spaces of the proposed dwellings themselves (both as to what I would describe as their general ambience and the question of solar access to them); and
• the question of visual privacy between the dwellings to the east and the private open space of the proposed dwellings on the site.

22. It is in the context of these matters that I turn to address the provisions of the DCP.

23. In Zhang v Canterbury City Council (2001) 115 LGERA 373 at para 75 on pp 386 and 387, Spigelman CJ made it clear that the provisions in a development control plan are to be the focal or starting point in consideration of the merits of any proposal being assessed against such a development control plan.

24. Zhang also made it clear that a development control plan does not have the same prescriptive basis as would a numerical standard contained in a local environmental plan but nonetheless, prima facie, this Court is to have significant regard to the provisions of a development control plan. However, on general considerations against s 79C of the Act, if, on such broader basis, a proposal is satisfactory then strictures of a development control plan need not necessarily act as a bar to such a development.

25. Although there are eight objectives of the DCP, only six are relevant, in my assessment, in these proceedings. They are the first six of the objectives:

1. To provide a performance approach to design of urban housing subdivision through a single document.
2. To provide a user-friendly document with flexible performance-based criteria to guide development.
3. To encourage high-quality urban design and residential amenity in urban housing development.
4. To set appropriate environmental criteria for solar access, privacy, noise, vehicular access, parking and open space.
5. To ensure the impact of urban housing proposals on the amenity of adjoining properties is a prime and initial consideration of applicants when preparing their development proposals.
6. Encourage innovative urban form which is pleasant to live in, relates to the desired future neighbourhood character, is responsive to the site and is environmentally sensitive.

26. Effectively, the applicant relies on the first three of those objectives in support of its application – particularly, in Mr Roser's submissions, although there are numerical controls in the DCP’s performance criteria with respect to solar access, for example, that the flexibility which is set out in objective 2 acts to say that, nonetheless in all the circumstances, the proposal of the applicant is acceptable.

27. On the other hand, Mr Rigg places greater reliance on the objective for the establishment of environmental criteria such as for solar access and the need to commence, as he put it, with consideration of the impact on adjoining properties.

28. The design elements in the DCP are set out in a table as weighted design elements and it is in this context that I need have regard to them.

29. Two of the design elements which are set out in on page 6 of the DCP relate to energy efficiency and privacy and security. The weighting table in the DCP, on page 7, says that solar access and orientation and visual privacy are critical design elements.

30. I turn first of a question of solar access and impact on the property which is the middle residential element of the residential development immediately to the east.

31. I have in evidence a series of shadow diagrams which enable me to have an understanding of the impact both of the proposal and of the present development on the solar access of the private open space to the middle dwelling to the east.

32. The provisions of the performance criteria and design solutions set out in the DCP on page 14 require that sunlight to least 50% of the principal area at ground level of private open space of adjacent properties is not reduced to less than three hours between 9 a.m. and 5 p.m. on 21 June or is not further reduced if existing overshadowing by buildings is greater than that.

33. The 9 a.m. to 3 p.m. 21 June shadow diagrams for the proposed development show, quite clearly, that there is a transition between shading of that private open space so that, on the evidence of Mr Shiels and my examination of those shadow diagrams, the middle unit of the dwellings to the east will achieve two hours (or modestly more but not significantly more) solar access during the relevant hours with that impact arising from a combination of the initial early-morning shadowing from its own building and the transition from the shadowing of the proposal.

34. I also have in evidence a series of shadow diagrams which show the shadowing occasioned by the existing dwelling and its structures and the existing fence between the dwelling and its structures and the properties to the east.

35. That fence is at a height of 1.5 m above existing ground level on the site. However, Development Control Plan No. 10 Exempt and Complying Development permits the erection of a 1.8 m fence along the boundary and that is the height of the fence assumed in the shadow diagrams to which I have referred relating to the proposed development.

36. It is, in my view, appropriate to apply the same assumption to the fencing between the site and the property to the east in my consideration of the shadow impact from the existing development.

37. It is clear that, at 10 a.m. (even with a 1.8 m rather than 1.5 m fence) there is nearly 50% of the private open space in that dwelling having full solar access at ground level. That position commences to deteriorate, although modestly so again on the assumption 1.8 m fence, until, I am prepared to assume with the addition of the additional fence height, there is virtually entire overshadowing occasioned by the existing development (with that notional 1.8 m fence) at about 1 p.m.

38. Therefore, on the assumption of a 1.8 m fence, there is of the order of three hours of solar access to the private open space of the middle dwelling to the east. On that basis the proposed development does have a significant negative impact on the solar access is to be considered at ground level.

39. The submission was made on behalf of the applicant that I should consider the effective solar access and the utility of that is to space for drying and the enjoyment of it by seated or standing persons rather than merely and assessment at ground level.

40. I am not prepared to take that step on behalf of the applicant as the conventionally used descriptor in planning instruments is based on an assessment of appropriate levels of solar access measured at ground level (see the relevant statement in the planning principle by Roseth SC in Parsonage v Ku-ring-gai [2004] NSWLEC 347 confirming the appropriateness of this). That, I consider, provides the basis for assumptions of solar access at levels above ground level and provides a useful and appropriate empirical measure as to what is the acceptability and appropriate level of solar access under the circumstances.

41. The impact of the proposal, I am satisfied, is significant and is so contrary to the provisions of the DCP that this, in itself, warrants refusal of the appeal.

42. I turn to the question of the private open space of the proposed dwellings.

43. The private open space of the proposed dwellings requires significant excavation. The unit which is proposed to front Hallidise Street (Unit 6) would have, at the street frontage end of its private open space, excavation to approximately 2.6 m below existing ground level. There would be up to a 1.2 m high fence on top of that, giving, therefore, a maximum enclosing height to the bottom of the private open space of some 3.8 m. In the middle of the private open space there is an excavation of approximately 2.4 m at which point the permitted fence height would rise to 1.8 m – making it possible for there to be a 4.2 m high enclosure at that point.

44. There is already an existing 1.5 m high fence at that point and I am prepared to assume that, at the very least, that fence would remain resulting in a 3.9 m tapering down to approximately 3 m or so high barrier both of retaining wall and fence to the east of that private open space.

45. Similar positions – although not to the same dramatic extent – apply to at least two others of the proposed dwellings.

46. These private opened space areas might be described, as has being submitted during these proceedings, as being somewhat subterranean.

47. Mr Roser put the proposition that I should have regard to this private open space as merely being an exemplar of the private open space that is available to the residents; that it would be used as a cool private open space in summer; that there are other open balcony areas on the other side of the building adjacent to the living areas which would provide alternative sunny private open space; and that differing natures of enjoyment would be made of these private open space areas.

48. Even accepting that this is the case (which I am prepared to take at its highest for the applicant) there is no doubt that there will be no effective solar access to these areas and that they will be areas that will require substantial amounts of excavation and will be dominated by the height of the walls to the east that enclose them.

49. Whilst a degree of excavation and dominance might be acceptable, I cannot be satisfied that a wall height of approaching 4 m in total from excavated ground level is appropriate. Whilst I would not refuse the application solely on this basis, it is nonetheless an undesirable design outcome and is contrary to the relevant objective of the development control plan in seeking constructive and positive design outcomes rather than negative ones.

50. The loss of solar access to the residents to the east and the total elimination of solar access to these private open spaces of the proposed development and the degree of excavation are all necessary and essential consequences of the scope of development that the applicant proposes for the site.

51. Part of the material that has been tendered is that the plans is the question of what might be the overall shape of a compliant building envelope for the site having regard to the totality of the various numerical controls as to setbacks, height and the like that would define such an envelope.

52. Presenting the material in that form shows a fundamental misconception as to the nature of such controls.

53. Building envelopes are a crude measure of defining bulk and scale of proposals. Setting precisely what an envelope is acts as a measure of the outer limits of a development – not a development right or something to which aspiration should be had absent all other relevant considerations.

54. That, it seems to me, is the fundamental flaw of the design proposed for this site. What is proposed is, indeed, an overdevelopment of the site but it is not appropriate for me to comment on what might be a compliant development – to do so would be contrary to the strictures of Bignold J in Manzie v Willoughby City Council (1996) NSWLEC 26.

55. I turn to the final matter which is the question of privacy between the private open space proposed to the site and that of the neighbours to the east.

56. Because of the significant height which results if the excavation would go ahead, there is a significant risk of overlooking of the private open space.

57. I accept the submission of Mr Roser that, to some extent with a 1.8 m fence along the boundary (and I note that in that regard Mr Shiels evidence the increasing the height of the fence from 1.5 to 1.8 would have no significant if any impact on the solar amenity of dwellings to the east), there would be a requirement for a degree of anti-sociality in somebody approaching to look down. Nonetheless, the difference in heights is sufficient that there would undoubtedly be a temptation (because of that significantly different relative heights) for that to arise.

58. However, as Mr Roser submitted and was observed on the on the site, there is a degree of impliedly necessary good neighbourliness between the private open spaces of the existing dwellings to the east.

59. In light of that, I would not refuse the present application on that basis. However, the extent of the overlooking opportunities which arise because of the extent of the excavation necessary to give effect to the present proposal whilst, in itself, not warranting refusal does contribute to the reasons for such refusal.

60. The orders of the Court therefore will be:

1. The appeal is dismissed;
2. Development Application 2004/304 for the demolition of the existing structures and the erection of 6x3-bedroom townhouses on 5 Hallidise Street, Nambucca Heads is determined by the refusal of development consent; and

1. The exhibits are returned.

Commissioner of the Court