Wallis v Hornsby Shire Council

[2006] NSWLEC 122

Land and Environment Court

of New South Wales

CITATION:	Wallis v Hornsby Shire Council [2006] NSWLEC 122
PARTIES:	APPLICANT Olga Wallis RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	11171 of 2005
CORAM:	Brown C
KEY ISSUES:	Development Application :- alterations and additions to an existing dwelling - loss of solar access to adjoining properties
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Hornsby Shire Local Environmental Plan 1994
DATES OF HEARING:	13/03/06
EX TEMPORE JUDGMENT DATE:	03/13/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr Wallis, agent RESPONDENT Mr T Pickup, solicitor SOLICITORS Storey and Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

13 March 2006

11171 of 2005 Olga Wallis v Hornsby Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Hornsby Shire Council (the council) of Development Application No. 832/05 for alterations and additions to an existing dwelling at 2 Schofield Parade, Pennant Hills (the site). It is proposed to erect a first-floor addition to the southern side of the existing dwelling house, incorporating a lounge room, office and library.

2 The proceedings were conducted as an On Site Hearing on 13 March 2006 and the judgement reflects the details in the Statement of Basic Facts and the findings given on-site.

3 The site is Lot 3 in DP 209830. It has a frontage of 19.25 metres and a site area of 954.8 square metres. The site contains an existing two-storey dwelling and is surrounded by residential properties with the dominant character made up of a mixture of one and two-storey dwellings.

4 The site is zoned Residential A (Low Density) under Hornsby Shire Local Environmental Plan 1994. The proposed development is permissible within this zone. The councils Dwelling House Development Control Plan (the DCP) applies with the relevant controls relating to Height, Setbacks and Solar Access.

5 The council filed a Statement of Issues containing three issues although they can be grouped into the single issue of whether the proposed development creates unacceptable solar access impacts on the two adjoining residential properties to the south at 73 and 73A Laurence Street. Both adjoining properties were inspected on the site view and their respective owners Mr Lau and Mr Takeda provided evidence at this time. Both opposed the application because of the loss of sunlight.

6 Because of the limited issue in proceedings, no expert evidence was provided although the council tendered a bundle of documents containing the council officers report. The applicant tendered shadow diagrams showing the effect of shadows on 73 and 73A Laurence Street in plan and elevation form. These diagrams were reviewed by the council and with some minor changes, there was general agreement on the overshadowing impact of the proposed alterations and additions.

7 The Solar Access Element of the DCP has the objective to provide "reasonable solar access to living areas within dwellings and open space around dwellings". The prescriptive measures require 3 hours of sunshine between 9 am and 3 p.m. on 22 June to north facing windows of living areas of adjacent dwellings. Four hours of sunshine are to the provided, during the same time, to private open space of adjacent dwellings.

8 The impact of the existing dwelling on the site overshadows the properties at 73 and 73A Laurence Street however the amount of solar access satisfies the DCP requirements, if only just. The proposed alterations and additions increase the amount of overshadowing. The ground floor level north facing windows of 73A Laurence Street that serve living rooms are the most adversely affected. Increased levels of overshadowing occurred to the family room and kitchen of 73 Laurence Street. As a consequence both properties did not satisfy the prescriptive measures in the DCP.

9 I find that even though the proposed development satisfies the relevant prescriptive height and setbacks standards, the impact is unacceptable and in conflict with the objective for the Solar Access Element of the DCP. The impact is created principally from the location of the alterations and additions, being 1 metre from the common boundary with 73 and 73A Laurence Street and rising to 2 storeys on the setback. A more sympathetic design may achieve a similar amount of floor space but impact less significantly on the adjoining properties in terms of solar access.

10 I note that the objective for the Height Element of the DCP requires "building height consistent with residential development in the local area and that maximise privacy, solar access and views". I also note that the objective for the Setback Element of the DCP requires "setbacks that complement the streetscape, provide for landscaping and protect the privacy of and sunlight to adjacent dwellings". In my opinion, the proposal is also in conflict with these objectives as the proposal has given little consideration to the availability of solar access to the adjoining properties.

11 For the foregoing reasons, the Orders of the Court are:

1) The appeal is dismissed.
2) Development Application No. 832/05 for alterations and additions to an existing dwelling at 2 Schofield Parade, Pennant Hills is refused.
3) The exhibits are returned.

___________
G T Brown
Commissioner of the Court