Zufferey v City of Ryde Council

[2008] NSWLEC 1479

Land and Environment Court

of New South Wales

CITATION:	Zufferey v City of Ryde Council [2008] NSWLEC 1479
PARTIES:	APPLICANT Camille Zufferey RESPONDENT City of Ryde Council
FILE NUMBER(S):	10490 of 2008
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of two existing dwellings and the construction of housing for seniors or people with a disability - solar access - amenity impacts
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004
DATES OF HEARING:	13/11/08
EX TEMPORE JUDGMENT DATE:	13 November 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr J Cole, solicitor SOLICITORS HWL Ebsworth RESPONDENT Mr J Strati, solicitor SOLICITORS City of Ryde Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

13 November 2008

10490 of 2008 Camille Zufferey v City of Ryde Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application Number 82/2008 by the City of Ryde Council (the council) for the demolition of two existing dwellings and the construction of housing for seniors or people with a disability at 12A, 12B and 14 Marlow Avenue, Denistone (the site).

The site

2 The area of the site is 2241 sq m with a frontage of 18.29 m to Marlow Avenue. The site slopes down to the western corner to a natural watercourse that forms the rear boundary. There is a slope from the street to the rear of some 14 m. The natural topography has been substantially altered in the past, in particular with a levelled area within 12B Marlow Avenue.

3 The site contains two dwellings, one each on 12A and 14 Marlow Avenue and a number of retaining structures. A number of tree and shrubs are located predominantly along the rear boundary.

4 The locality consists exclusively of single dwellings of various ages and designs with a number of dwellings being constructed on battleaxe lots.

The proposal

5 The development proposes the erection of 8 x 2 bedroom and 2 x 3 bedroom self-contained accommodation for seniors or people with a disability within two buildings. Building 1 contains three units, being 1 - 3. The front portion of the unit facing the street is single storey and the rear portion is two-storey. Building 2 contains the remaining 7 units, being Units 4 – 10 comprising two levels for residential accommodation above a basement car park level.

6 Access for the development is provided from Marlow Avenue. Vehicular access is provided along the northern boundary of the site, linking the basement car park beneath Building 2 and the street. The development provides 12 parking spaces in total, 11 in the basement car park and one space as a garage for Unit 1. Separate pedestrian access is provided along the southern boundary.

Relevant planning controls

7 The site is zoned Residential 2(a) under the Ryde Planning Scheme Ordinance. State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 (the SEPP) applies and the proposed development is permissible, with consent pursuant to cl 4 of the SEPP.

8 Clause 35(a) of the SEPP provides that the development should “ensure adequate daylight to the main living areas of residents and adequate sunlight to substantial areas of private open space.”

9 Clause 40(3) of the SEPP provides that the site frontage must be at least 20 m. The site does not satisfy this standard because of the configuration of the site however it was not a matter pressed by the council following consideration of an objection under State Environmental Planning Policy No 1 – Development Standards.

10 Clause 50(e) address solar access and states that solar access cannot be a reason to refuse the development application “if living rooms and private open spaces for a minimum of 70% of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter.”

The issues

11 The original issues raised by the council related to accessibility, height, bulk and scale, amenity impacts and solar access. The applicant prepared amended plans and the issues of the council were limited to only unacceptable levels of solar access.

12 A number of local residents provided evidence on site and their concerns related to one or more of the following:

• the incompatibility of the development with the character of the area, particularly the bulk and scale,
• additional traffic on top of existing unsatisfactory traffic conditions,
• unacceptable impact on the streetscape,
• the topography of the site does not suit this type of development, particularly in terms of access for seniors or people with a disability,
• stormwater disposal and flooding,
• overlooking,
• glare from car headlights,
• noise, and
• non-compliance with the SEPP requirements, particularly access.
Solar access

13 The council submits that only 7 units (or 64%) satisfy the minimum sunlight requirements in cl 50(e) of the SEPP. Units 1, 7, 8 and 9 are non-complying and as such the 70% requirement is not satisfied. The applicant submits that in qualitative terms, the units achieve adequate sunlight through their design and the limitations placed on the site by the orientation of the lot. In any event, the requirements of clause 50(e) would be satisfied if only one of the four non-complying units achieved the required sunlight.

14 In considering this issue, the applicant helpfully provided shadow diagrams that identify the amount of direct sunlight to the units. I accept that because of the location between two existing dwellings in Marlow Avenue (with one of the dwellings directly to the north) that it is unlikely that Unit 1 would ever satisfy the criteria in cl 50(e). Of the other three units in question (Units 7, 8 and 9) I am satisfied that the non-compliance with clause 50(e) is not a matter that would warrant the refusal of the application. Non-compliance with the 70% standard does not mean that the application must be refused but only that the applicant cannot rely on the deemed to comply requirements of the SEPP.

15 The orientation of the site, largely towards the west, impacts on the ability to provide direct sunlight and I accept Mr Cole’s submission that the design achieves a more than reasonable outcome for solar access through the staggered balconies and enclosed sunrooms. The shadow diagrams indicate that some sunlight will penetrate the living rooms of the units in question between 1pm and 2pm, although direct sunlight to the enclosed sunrooms will occur before this time.

16 I accept that adequate daylight is provided to the living areas of the units and also that there is adequate sunlight to substantial areas of private open space pursuant to cl 34(a) of the SEPP.

Resident issues

17 The additional issues raised by objectors (and not by the council) were addressed on site and in documentation provided by the council in their bundle of documents. Mr Matthew Jones of 10 Marlow Avenue and Mr Warren Warbrick of 11 Marlow Avenue provided comprehensive submissions. These submissions indicate a significant number of non-compliances with the SEPP, contrary to the expert evidence of the council and the applicant. The authors are not experts and their reports could not be classified as experts’ reports, although I understand that Mr Warbrick is an architect.

18 I have read both submissions and while I accept that the writers may have a particular interpretation of the SEPP, I am not prepared to adopt their interpretation above those of the experts used by the council and the applicant in the assessment of the application. The town planners, Mr Young for the council and Mr Fish for the applicant and the access experts, Mr Slattery for the council and Mr Relf for the applicant, are experienced in their fields. In the absence of any compelling expert evidence to suggest that the conclusions of the experts are flawed, their evidence should be accepted. Apart from the solar access issue, all experts reached agreement on compliance with the requirements of the SEPP.

19 The issues raised by Mr Robert Domone, who lives at 11A Stratford Avenue at the rear of the site relate to noise, overlooking, headlight glare and bulk and scale. The relationship between the proposed development and his property (and other properties in Stratford Avenue) were observed on the site view. In accepting that the outlook for his property and the amenity will change, largely because of the relatively undeveloped nature of the area adjoining his property, I do not accept that the impacts are likely to be so significant that it would warrant the refusal or amendment of the application. The form and size of a development is contemplated by the SEPP as the proposed development satisfies all the deemed to comply standards in the SEPP.

20 In practical terms, I am not convinced that the proposed development will create such an unacceptable impact on the properties to the rear because of the likely limited number of vehicles using the access driveway, the relatively small size of the proposed development, the separation distances from the balconies to the adjoining property boundary (up to 15 m) and the existing and proposed landscaping that will help screen the building from adjoining properties at the rear.

Orders

21 The orders of the Court are:

1) The appeal is upheld.
2) Development Application Number 82/2008 for the demolition of two existing dwellings and the construction of housing for seniors or people with a disability at 12A, 12B and 14 Marlow Avenue, Denistone is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of exhibits A and B.
_____________
G T Brown
Commissioner of the Court