Watson v North Sydney Council

[2008] NSWLEC 1240

Land and Environment Court

of New South Wales

CITATION:

Watson v North Sydney Council [2008] NSWLEC 1240
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Adele Watson

RESPONDENT
North Sydney Council

FILE NUMBER(S):

10332 of 2008

CORAM:

Hoffman C

KEY ISSUES:

Development Consent :- deletion of condition in current approval, condition does not achieve reason for imposition, solar access, shadows

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan 2001

DATES OF HEARING:

16/06/2008

EX TEMPORE JUDGMENT DATE:

16 June 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms M.L. Taylor, solicitor
of Bartier Perry Solicitors

RESPONDENT
Mr T. March, solicitor
of North Sydney Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

16 June 2008

This decision was given extemporaneously. It has been revised and edited prior to publication .

1 This is a Class 1 Appeal between Adele Watson and North Sydney Council in regard to Condition C(1) of Development Consent D496/07 granted by Council on 27 February 2008 for alterations and additions to No. 141 Chandos St, Crows Nest.

2 The site is one of two semi-detached houses Nos. 139 and 141 Chandos Street. It is the easternmost of the two. The buildings are of some age and have a pitched roof over the front older section, and at the rear they both have extensions in the nature of new kitchens and living rooms. These rear wings are different to the old section of the semi-detached houses such that the rear wings have 900 mm setbacks from the side boundary between them. This has enabled some windows to be located on the inner rooms that face each other in these rear wings.

3 No. 139 the western part of the two semis has a gable roof over part of its rear extension and the very rear is a low-pitched skillion roof. This was approved a year or so ago by the Council and has been built. The rear extension on the subject property appears to be a little older than that, and generally has a low-pitched skillion roof for its full length. On the east boundary of the subject site it has a 700 mm side setback, and No. 143 adjoining has about 800 mm side setback. As a result No.s 141 and 143 have side windows facing each other.

4 The development approved by the Council on the subject site is to demolish the existing rear section and build a new extension with a high-pitched skillion roof sloping towards the east, with clerestorey windows at the upper level to give north western sunlight into the new living, kitchen and dining rooms. Condition C(1) requires in summary that the rear 4 m of this high-pitched skillion roof be changed and lowered to comply with the Council’s building height plane statute. The reason for that condition is:

" to minimise overshadowing impact of the development and protection of residential amenity of No.139 Chandos St, Crows Nest.”

5 The attendance at the on-site hearing was for the applicant:
• Ms M.L. Taylor, Solicitor
• Mr A. Pressley, Architect
• Mr R. Gracia, Consulting Town Planner
• Ms A. Watson, Applicant
• Mr C. To, Solicitor assisting Ms Taylor.
6 Appearing for the respondent was:

• Mr T. March, Solicitor
• Ms L. Chan, Assessment Officer, North Sydney Council
• Mrs M. Burt, Objector of 143 Chandos St, Crows Nest
• Ms A. Drayer, Objector of 139 Chandos St, Crows Nest

7 Mrs Burt’s objection which was in regard to privacy from windows adjacent to her own windows and was dealt with by way of a new condition. Exhibit F of the appeal, which the applicant volunteered, amends the proposed louvre windows so that they are in obscured glass with some fixed panes so that there is no view in between windows.

8 The crux of the appeal is the rear roof section and all the evidence revolves round that and the meaning of the statutes. The steep skillion roof previously referred to actually intrudes in the building height plane. For that section of the roof north of the part subject to Condition C(1), the Council had approved a SEPP 1 objection to enable the roof to be built as it was designed. The purpose of the building height plane in Cl 18 of the LEP, which is the North Sydney Local Environmental Plan 2001 is:
(a) to control bulk scale

(b) to provide separation between buildings

(c) to preserve amenity of existing dwellings and provide amenity to new dwellings in terms of shadowing, privacy views, ventilation and solar access.

9 The SEPP No.1 objection criteria is to not grant an objection of a building any part of which exceeds the building height plane if it would materially overshadow any existing or new property or reduce the level of privacy to any new or existing property, or obstruct views from any existing or new property, or obstruct daylight or ventilation to any new or existing property.

10 The evidence was fairly complex onsite and subject to viewing and assessment of drawings prepared by the applicant. It must be noted that the reason for Condition C(1) is to prevent sunlight loss and shadows. Ms Drayer also mentioned her concern about bulk of this roof skillion section that would go to the maximum height of 4.8 m above ground level and would be seen from her rear courtyard.

11 Bearing in mind the reason for the condition the applicant’s expert was able to demonstrate that Condition C(1) would have no effect on the shadows said, by the respondent and Ms Drayer, to be cast on her property at 9 am and thereafter in the mid-winter solstice. That date is the test that is to be applied under the development control plan.

12 I was satisfied by Mr Pressley that the shadows of concern would actually be caused by the approved section of the skillion roof that was granted approval and a SEPP1 objection by the Council.

13 In considering the question of this impact, there was supplementary evidence that if one applied the tests of Pafburn and/or Parsonage , one might be able to construe that the eastern windows into the living room of No. 139 would get no sun at the applicable times of the test with a building height plane complying development. And, therefore the living room of No. 139 would really only get 1.5 hrs of sun in its western windows in mid-winter when the minimum solar access by development contral plan is 3 hours.

14 The applicant said that under the applicable tests, No. 139’s living room would have “ no change in solar access ” even with Condition C(1). The respondent argued there would be loss of sun to the living room at other times of the year. The applicant said they are not the tests under the applicable statutes and controls.

15 Also included in the statute and controls is protection of solar access to private open spaces. Behind No.139’s living room on the south side if its only courtyard. The respondent said without Condition C(1) its morning sun from about 9 am to 10.30 am under the applicable tests would be lost. Ms Drayer said even in mid-winter the sun commenced to come into the courtyard eastern corner at 8.15 am. The applicant again demonstrated it is not the roof subject of Condition C(1) that would cause that shadow.

16 Further, the courtyard, although it would lose its morning sun, would obtain significant direct sunlight to substantial parts of it, about 10.30 to 11.00 am in mid-winter and for the rest of the day it would continue to get sun. The access to that sun is somewhat inhibited by shade cloths currently erected over the courtyard by Ms Drayer for protection from summer sun. Presumably they could be taken down in winter to get maximum sun from 10.30 am to 3 pm which clearly exceeds the minimum 3 hour requirement. In any case even with the shade cloths, the low angle of the sun on the day of the hearing meant at 11 am we stood in this courtyard in direct sun coming down across No. 139’s roof. Due to the Drayer house on the north of the courtyard most of the sun would be on the rear section of the courtyard but seen from the full height glazed wall of the living room of No. 139, there must be significant amenity maintained.

17 It seems to me the reason for imposing Condition C(1) is found to be wanting in that Condition C(1) would never achieve the objective that is sought by the condition. Therefore I see no reason to retain is.

18 Therefore it is my intention to uphold the appeal and the orders of the Court are:

1. That the appeal is upheld, and

2. Condition C(1) is deleted from the Development Consent, Development Consent D496/07 in regard to No. 141 Chandos Street, North Sydney subject to the imposition of the condition volunteered by the applicant in Exhibit F as set out in Annexure ‘A’ hereto.

3. The exhibits are returned to the parties, except for Exhibits A, C, E & F.

___________________

kb

20/06/2008	-	Repeated paragraph required deleting - Paragraph(s) Para 4
20/06/2008	-	Typographical error. - Paragraph(s) Para 17