Alan Do Rozario v Manly Council

Allan Robert Cooley and Janet Louise Patterson v City of Sydney Council [2006] NSWLEC 55; CASES CITED: Saxer v North Sydney Municipal Council (1988) 25 APAD 311; Meriton v Sydney City Council [2004] NSWLEC 313

APPLICANT: Mr A Sattler, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Sattler & Associates Pty Limited RESPONDENT: Ms C Schofield, solicitor SOLICITORS: Pike Pike and Fenwick Lawyers

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Manly Council (the council) to refuse a development application to demolish the existing dwelling, to Torrens title subdivide and to erect two attached dwelling houses on Lot 16, DP1069173, being No 141 Balgowlah Road, Balgowlah. 2 I visited the land in company with the parties on the morning of the on-site hearing. 3 I concluded on-site that the application should succeed as the proposal complies with the council's requirements including floor space ratio (FSR) and the side setbacks comply on one interpretation and by bifurcating the driveway the street tree is retained. This judgment reflects that finding. The land 4 The land is situated on the southern side of Balgowlah Road between Hill and Boyle Streets. It has a street frontage of 12.190m, a depth of around 40.23m and an area of 490.4m2. It slopes down to the street with a fall of about 2m (10.68m AHD in SW corner to 8.79m AHD in NE corner). 5 Erected on the land is a single-storey brick detached dwelling with a pitched tiled roof and driveway to open parking along the eastern side of the dwelling. 6 The subject land is in the vicinity of mainly residential development, comprising a mix of with single-storey dwellings adjoining to the east and west, Manly West Public School to the south, a residential flat building nearby to the east and Manly Golf Club links and industrial properties to the north on the other side of the road. 7 A Butterfly tree, Bauhinia variegata is growing in the council's verge in the centre of the frontage. This tree is estimated around 30 to 40 years old, and has been pruned to avoid the overhead wires. The height of this tree has been estimated to be around 4m with a spread of around 4m. The tree is part of a row of such trees to commemorate soldiers lost in WW1. Relevant planning controls Manly Local Environmental Plan 1988, (MLEP) 8 Under the provisions of the MLEP the land is in Residential Zone No 2 and the proposal is permissible with consent. The relevant clauses are: Clause 3 (Aims & Objectives), Clause 4 (Policies & Strategies), Clause 10 (Zoning). 9 Clause 10 of the MLEP provides that the council shall not grant consent to development unless it is of the opinion that the proposed development is consistent with the zone objectives. The objectives of the Residential Zone are as follows: (a) To set aside land to be used for the purposes of housing and associated facilities; (b) To delineate, by means of development control in the supporting material, the nature and intended future of the residential areas within the Municipality; (c) To allow a variety of housing types while maintaining the existing character of residential areas throughout the municipality; (d) To ensure that building form, including alterations and additions, does not degrade the amenity of surrounding residents or the existing quality of the environment; (e) To improve the quality of the residential areas by encouraging landscaping and permitting greater flexibility of design in both new development and renovations; (f) To allow development for purposes other than housing within the zone only if it is compatible with the character and amenity of the locality; (g) To ensure full and efficient use of existing social and physical infrastructure and the future provisions of services and facilities to meet any increased demand; and (h) To encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment. 10 Clause 11 of the MLEP relates to subdivision and provides; A person shall not subdivide land to which this plan applies except with the consent of the Council. 11 Clause 30 of the MLEP relates to services and provides; The Council shall not grant consent to the carrying out of development on any land to which this plan applies unless and until arrangements satisfactory to the Water Board have been made with the Board for the provision of water and sewerage facilities to the land.

12 Water and sewerage facilities are presently available to the existing dwelling on the land and will be available to the new development. Formal certification by Sydney Water Corporation will be required and a condition of consent is imposed in this regard. 13 Clauses 18 and 19 of the MLEP deal with "…items of the environmental heritage and development in the vicinity of an item of environmental heritage," respectively. Schedule 4 of the LEP lists items of the environmental heritage and includes as a landscape item the 'Balgowlah Road (from Condamine Street to Manly Golf Club House), Balgowlah'. 14 The proposal originally involved the removal of a street tree to enable construction of the proposed central driveway. During the hearing the parties agreed that the tree could be maintained and the issue relating to heritage was not pressed. Manly Development Control Plan for the Residential Zone 2001, Amendment 1, (RDCP) 15 Under the provisions of the RDCP the land falls within Density Sub-Zone 3, which provides for a density of one dwelling per 250m2 of site area and a maximum floor space ratio of 0.6:1. 16 For the purposes of calculating maximum building height the subject property is located in RDCP Sub-Zone 1. 17 In cl 3.1.1 of the RDCP the objectives for Residential Density and Subdivision are; (a) To control the number of dwellings by specifying the minimum site area required for each. (b) To encourage the provision of a variety of dwelling types and residential environments. (c) To respond to the character of the locality through appropriate subdivision patterns. (d) To require frontage for all lots to a public road. (e) To protect existing vegetation and topography through appropriate configuration of lots and siting of dwellings. (f) To take advantage of existing services and facilities. (g) To ensure development in sub-zones 2 and 3 has direct street frontage and access. 18 Under cl 3.5.2(ii)(c) of the RDCP in respect of side setbacks; Generally Council favours walls facing side boundaries to be staggered to permit windows at 90° to the boundary facing into the landscaped areas. In these circumstances, Council will consider permitting part of a building to be constructed closer to the side boundary than one third the wall height, provided another part of the building equal in area to the area protruding beyond the setback line, is setback further than the 1/3 setback requirement. This is intended to encourage better design for privacy. Other criteria such as solar access and views will also be considered. 19 The RDCP objectives for setbacks in cl 3.5.1 are; · To preserve and enhance the existing streetscape. · To provide privacy. · To provide equitable access to light and sunshine. · To promote flexibility in the siting of buildings. · To enable view sharing. · To accommodate planting of native vegetation including endemic trees. · To control the nature of development adjoining specific open space lands and National Parks so as not to unduly detract from the nature of those lands and to comply with SEPP No 19. · To maintain adequate space between buildings to protect views and vistas from public places. 20 Section 3 of the RDCP, [Note: Exhibit 7, p8] a variation to the requirements may be permitted and; Council may consider variations to the provisions of this section on a merit basis. Assessment of applications involving variations to these standards will include the findings of the locality and site analyses, including the accompanying statement, and the particular circumstances of the case. 21 Clause 3.7.2 of the RDCP states; (a) Where an existing adjacent building has an east-west orientation, the level of solar access presently enjoyed must be maintained to windows and glazed doors of living rooms for a period of at least 2 hours from 9am - 3pm on 21 June. (b) Where solar access to windows or glazed doors of a living room of an adjacent building is currently less than 2 hours, no reduction in solar access to this window will be permitted. (c) Where an existing adjacent building has a north-south orientation, the level of solar access presently enjoyed must be maintained to windows or glazed doors of living rooms for a period of at least four hours from 9am to 3pm on June 21. (d) Where solar access to windows or glazed doors of a living room of an adjacent building is currently less than 4 hours, no reduction in solar access to this window or door will be permitted. (e) New development must not eliminate more than 1/3 of the existing sunlight to open space of adjacent properties measured at 9am, 12 noon, and 3pm at the winter solstice (21 June). (f) Where there is no winter sunlight available to open space of adjacent properties the calculations for the purposes of sunlight will relate to the Autumn equinox. (g) The proposed development must maintain solar access to the north facing roofs of existing dwellings (45o west to 45o east variation is applicable) to the fixed minimum area of 10m2 capable of accommodating solar water heater panels. (h) Shadow diagrams (including elevations) are required to show the impact of the proposal on the sunlight to living room windows of adjoining residences and their open space. These are to be based on a survey of the site including adjoining properties.

22 There is no definition of 'living room/s' contained in the RDCP. Manly Development Control Plan for Energy Efficient Buildings, (DCPEEB) 23 The DCPEEB applies to the land and seeks to minimise the use of energy used in maintaining comfortable conditions inside a building. The proposal and its history 24 Development application No 222/05 was lodged with the respondent council on 2 June 2005 to demolish the existing dwelling, to Torrens title subdivide the land and to erect two town houses. 25 At ground level, each proposed two-storey dwelling would provide for a family room, kitchen, living room, laundry, WC and single garage. Two (2) additional car spaces are proposed in the driveway between the garages and the front boundary. 26 At first floor level, the proposed two-storey dwellings would each provide three (3) bedrooms, bathroom and ensuite. A balcony is proposed for Dwelling A, the eastern dwelling, at this level. 27 It is proposed to subdivide the land to create two new lots, each with a frontage width of 6.085m or 245.2m2 in area. 28 The proposed landscaping comprises a mix of shrubs and small trees along each side boundary as detailed in the landscaping plan. Compliance table under the RDCP

Standard Required Proposed Compliance Maximum housing 1 dwelling/ 1 Dwelling/ No (4.8m2 deficient of area) density 250m2 site area 245.2m2 site area Maximum floor 0.6:1 0.6:1 Yes space ratio Maximum 6.75m. 5.778m. Yes building height Minimum front 6m. 6m. Yes setback Minimum rear 8m. 13.59 Yes setback Minimum side 1.9m. (Nash 1.87m) 1.799m.-2.9m. Yes (Average) setback - east side 1.9m. (Nash 1.87m) 1.799m.-2.9m. Yes (Average)

• west Minimum open 55% - 270m2 67% - 327m2 Yes space Minimum soft 35% of total 51% Yes landscaping required open space Minimum car 2/dwelling 2/dwelling Yes parking spaces Minimum 4 hrs. sunlight to >4 hrs maintained neighbours living to neighbours Over shadowing areas and < 1/3 northern windows Yes (No west or east facing living rooms) increase to < 1/3 increase neighbours open space

Notification 1 The application was notified to nearby owners and occupants from 8 June 2005 to 27 June 2005 and the council received one letter of objection within time, from R & J Wilson of No 139 Balgowlah Road, [Note: Exhibit 9, pp 55-7]. Concerns related to the alleged RDCP non-compliance in respect of the setback and density; Overshadowing; Privacy/ overlooking; parking generation; and loss of street tree. 2 A late objection was also received from the Ivanhoe Park Precinct Community Forum on the grounds of significant non-compliance with the subdivision requirements and setbacks and that the proposal would be likely to cause overshadowing and loss of privacy to adjoining properties. The precinct committee recommended refusal of the application, [Note: Exhibit 9, p 58]. 3 The application was referred to the council's building surveyor, engineer and landscape officer. The council's decision 4 The council at its Land-Use Management Meeting on 7 November 2005 refused the application on the grounds that the proposal would: breach density provisions; be an overdevelopment of the site; be out of character with the site; and out of character with the area; overshadow the property to the east at No 139 Balgowlah Road and result in a loss of amenity to No 139 Balgowlah Road due to its bulk. 5 A notice of determination dated 15 November 2005 provided five reasons for refusal and these have been reflected in the issues. The hearing 6 The appeal was filed on 10 February 2006. 7 At the on-site hearing the Court heard evidence on behalf of the respondent council from: · Mr R J Wilson, resident of No 139 Balgowlah Road, Balgowlah; · Mr S Keating, owner of No 147 Balgowlah Road, Balgowlah; · Mr G Meale, of Quinten Road, Manly; · Mr Do Rozario, owner and applicant; · Mr R Flew, address not given; · Mr K R Nash, consultant town planner; · Ms D Smith, heritage advisor, Manly Council; · Ms J Macourt, owner of No 145 Balgowlah Road, Balgowlah; · Mr P Christmas, Management Lodgments and Quality Assurance for Manly Council; · Ms C Keating, who resides at No 9 Ogilvy Road, Clontarf, mother of Mr Keating resident of No 147 Balgowlah Road, Balgowlah; and · Mr F Beatty, Tree Preservation Officer, Manly Council. 8 On behalf of the applicant evidence was given by: · Mr D Bobinac, town planner for the applicant; · Mr C Betteridge, heritage landscape expert; · Mr D G Ford, consulting arborist. 9 Mr L S Winnacott, was the Court-appointed town planner who recommended that the application be approved. The issues 10 On 11 May 2006 the council filed a statement of issues. 1 Density: The proposed development is not considered to be adequately controlled in terms of the extent of density of the development is in excess of section 3.1 of Council's density control of the Development Control Plan for the Residential Zone, 2001, Amendment 1, having regard to Section 79C(1)(a)(iii) of the Environmental Planning & Assessment Act 1979. 2 Overdevelopment: The proposed development is considered to be an overdevelopment of the site and therefore unsuitable for the site, having regard to Section 79C(1)(c) of the Environmental Planning & Assessment Act 1979. 3 Character of Area: (a) The proposed development is out of character with the area and will have an adverse impact on the natural and built environment of the area, having regard to Section 79C(1)(b) of the Environmental Planning & Assessment Act 1979. (b) The street tree in front of the subject property should be retained. It is part of an item of the environmental heritage listed in the Manly Local Environmental Plan 1988. It should be retained due to its heritage significance and its contribution to the streetscape. 4 Overshadowing: The proposed development is likely to have an adverse impact on the adjoining property to the east (No. 139 Balgowlah Road) in terms of overshadowing, having regard to Clause 3.7 - Overshadowing of the Manly Development Control Plan for the Residential Zone 2001, Amendment 1, and Section 79C(1)(b) and (d) of the Environmental Planning & Assessment Act 1979. 5 Bulk: The proposed development will also result in loss of amenity to the adjoining property at No. 139 Balgowlah Road due to its bulk, having regard to Section 79C(1)(c) and (d) of the Environmental Planning & Assessment Act 1979.

11 The following emerged as the salient issues: · Density, bulk and side setbacks. · Overshadowing. · Overdevelopment. · Character of Area. The evidence and findings Density, bulk and side setbacks 12 The parties were agreed that the proposal would comply with the RDCP requirements for open space, FSR, building height, front and rear setbacks and carparking. 13 On first blush, it appeared that the side boundary setbacks would be deficient to a minor extent, of around 100mm on Mr Winnacott's calculations or about 70mm on Mr Nash's calculations, however on further examination and taking into account the slope of the land the parties agreed that the proposal would comply in this regard. This is because the wall height of the building, which is used to determine the setback, is measured from the existing ground level. The measured maximum wall height is from the dotted existing ground level to the topmost part of the external wall on the side elevations shown on the plans in Exhibit 1. 14 Even if the slope of the ground is not allowed for in the calculations, applying the averaging method under cl 3.5.2(ii)(c) of the RDCP, Mr Winnacott was satisfied that the side setbacks would comply. 15 Mr Winnacott noted that the proposal: · Incorporates staggered walls facing both side boundaries and this design feature provides for the windows of the front rooms at both ground and first floor levels to face towards the front street. · The building also contains living room and kitchen windows at ground level and bedroom and ensuite windows at first floor level facing towards the side boundaries. Having regard to proposed fencing and landscaping along the side boundaries no adverse privacy impacts will occur for neighbouring properties from the ground floor windows facing the side boundaries. · Each of the dwellings incorporates two bedroom windows and one ensuite bathroom window facing each side boundary. It is appropriate that the ensuite bathroom windows incorporate obscure glazing for mutual privacy purposes. In accordance with the planning principle contained in Meriton v Sydney City Council [2004] NSWLEC 313 overlooking from a living area is more objectionable than overlooking from a bedroom where people tend to spend less waking time. · A reasonable level of privacy will be available to both of the adjoining properties at Nos 139 and 143 Balgowlah Road. · It is appropriate to apply the averaging side boundary setback provisions outlined above. · The overall area of building setback from the side boundaries is greater than that required by the RDCP. 16 I accept the evidence of Mr Winnacott in this regard and I am satisfied that the side boundary setbacks are reasonable and meet the objectives of the RDCP as outlined above. I would not refuse the application for reason of any deficiency of side setbacks. 17 I am satisfied that the density, bulk and setbacks of the proposal would not be a reason to refuse the application. Overshadowing of internal living rooms of adjacent properties 18 Clause 3.7.2 of the RDCP addressed the level of sunlight required in adjacent premises and various performance criteria are given. The existence and position of a 'living room' is the focus of the performance criteria for the level of internal sunlight of adjacent buildings. I had the opportunity of viewing the position of living rooms inside No 139 Balgowlah Road. Since Mr Winnacott visited this dwelling, a room that Mr Winnacott identified as a bedroom, on the western side of this dwelling, facing onto the subject property, is now claimed as a 'living room' under the RDCP. There are other living rooms that face towards the north and would be unaffected by the proposal. 19 However, were the west-facing room of No 139 Balgowlah Road considered as a 'living room', development on the subject land would be severely limited given the stringent requirements of cl 3.7.2 for west-oriented 'living rooms'. 'Stringent', because if the solar access controls were applied strictly it is likely that the only new development on the land would be largely within the envelope of the existing old dwelling on the land. 20 A balance with the other requirements of the RDCP, that would permit the proposal's bulk, needs to be struck, if a 'living room' is located on the western side of No 139 Balgowlah Road. In respect of 'living rooms' the level of solar access presently enjoyed must be maintained to its windows for a period of at least 2 hours from 9am - 3pm on 21 June. Mr Wilson claimed that the family room on the western side of No 139 Balgowlah Road that presently receives sunlight for 3 hours in the afternoons until 3pm would only receive around 85 minutes if the proposal were to be erected, [Note: Exhibit 9, pp 101, 104-5]. I accept that assessment which might be slightly too generous in favour of the applicant and the proposal's shading effect. 21 I am satisfied that given the orientation of No 139 Balgowlah Road, the existing eaves would shade the western wall from around 11.15am to 12 midday. So the western living room of that property would receive around 3 hours of sunlight in the afternoons in midwinter. This sunlight mainly passes over the roof of the existing building at No 141 Balgowlah Road. The proposal would reduce sunlight to that west-facing 'living room' window to around an hour in midwinter for a period slightly less than estimated by Mr Wilson. If the RDCP provisions for solar access were applied strictly to the west facing windows of this 'living room' the proposal should be refused as the required level of sunlight would be reduced by around 40 minutes to 1 hour, and at least 2 hours must be available. I consider this to be an unreasonable outcome of applying the council's requirements given the proposal's compliance with other controls especially those controlling bulk. I consider it appropriate to take into consideration the ideal northerly aspect of the abutting properties, and the fact that at least some of the living rooms potentially obtain northerly sunlight. 22 The side boundaries of Nos 139 and 143 Balgowlah Road are oriented north/south and the front 'living rooms' of each adjoining dwelling potentially receive controlled midwinter sunlight under the verandah roof for most of the day in midwinter. They also would receive controlled sunlight at other times of the year. Under cl 3.7.2(c) of the RDCP the level of solar access presently enjoyed must be maintained to north facing windows or glazed doors of 'living rooms' for a period of at least four hours from 9am to 3pm on June 21. The north facing front living rooms of both properties would not suffer reduced sunlight if the proposal were erected. However, the rear rooms would be affected either in the morning in the case of No 143 Balgowlah Road or in the afternoon in the case of No 139 Balgowlah Road. 23 Mr Winnacott considered the proposal would not affect solar access to windows or glazed doors of 'living rooms' of the dwelling house at No 139 Balgowlah Road at the time of his inspection as he considered there would be no living rooms on the western elevation. 24 Mr Nash visited No 139 Balgowlah Road later and recognised that the proposal: …would remove any direct sunlight on the windows on the western elevation of No 139 [Balgowlah Road] at midwinter and for a considerable period between the equinox. The non-compliance with the side boundary setback whilst minor contributes to this detrimental amenity impact… 25 He also considered: …the afternoon overshadowing impact in midwinter will also be significant on the private open space area at the rear of No 139 [Balgowlah Road] due to the significant intrusion of the proposed buildings into the rear yard area well beyond the established rear building line… The amenity currently enjoyed by the owners and occupiers of No 139 Balgowlah Road will be significantly and adversely impacted by the proposed development. 26 From a cursory inspection of the interior of No 139 Balgowlah Road, it would appear as a functional three-bedroom house with open plan living/dining/ area to the east, with northerly aspect, remote from the subject land and unaffected by the development proposal. If the dwelling were sold, it would be advertised, I am sure, as a three-bedroom house or two bedrooms and study with generous living areas. The room on the western elevation that is styled presently as a 'living room' would be either a bedroom or study. So if it is presently used as a living room, it could hardly be said to be the primary living room but more a secondary living room. As such I consider it should not be granted the same status as the primary living room for the purpose of assessing solar access. I did not obtain access to No 141 Balgowlah Road so cannot determine the primary and secondary living rooms, but it is likely similar arrangements apply. 27 A similar principle applies when calculating the car parking demand of a dwelling based on the number of bedroom. Often the applicant will claim one room as a study rather than a bedroom to lower the car-parking requirement. However, in practice the study, if it is of a size to be functionally used as a bedroom, will be included as a bedroom. 28 Also the Senior Assessor Jensen as he once was, in Saxer v North Sydney Municipal Council (1987) 25 APAD 311 introduced a systematic approach to the classifying of views into 'primary' and 'secondary' categories. Primary views were given more weight than secondary views when assessing new development adjoining dwellings where neighbours sought to retain views. So too here, I would say that the western secondary 'living room' would be given less weight in any assessment of sunlight than the primary 'living rooms'. 29 Despite this finding, the RDCP allows variations to the provisions in this solar access section on a merits-basis. I have given significant weight to the fact that the proposal, on one reading would comply with the side boundary setbacks of the RDCP. It would also comply with the wall height and FSR requirements of the RDCP, and is not to my mind an overdevelopment of the land. 30 The RDCP objective to provide equitable access to light and sunshine would be met. Were the existing dwelling at No 139 Balgowlah Road demolished and a new two storey building of similar proportions to the proposed erected each would receive sunlight in equal share. 31 Weighing the interests of the applicant, the interests of neighbours and considering all heads under s 79C of the Environmental Planning and Assessment Act 1979, I would not refuse the application for the reason of overshadowing of the internal area of the adjacent properties. Overshadowing of open space of adjoining properties 32 Clause 3.7.2(e) of the RDCP requires that new development must not; eliminate more than 1/3 the existing sunlight to open space on adjacent properties, measured at 9am, 12noon and 1pm at the winter solstice (21 June). 33 Mr Winnacott was satisfied that private open space in the rear yard of No 139 Balgowlah Road would be unaffected by shade cast by the proposal until early afternoon in mid-winter. He also confirmed that the rear yard, remote from the dwelling, would receive sunlight from 9am until early afternoon in midwinter over the roof of the existing dwelling on No 139 Balgowlah Road. He was satisfied that the proposal would not reduce by more than one third the existing sunlight received on the open space of No 139 Balgowlah Road. 34 I accept that evidence and given the proposal would be setback 1.799m from each side boundary, the fact that the proposal complies with the FSR controls, provides sufficient open space, is located largely in the position of the existing house, I am satisfied that any shade cast by the proposal in the afternoons in midwinter in the case of No 139 Balgowlah Road and in the mornings in the case of No 141 Balgowlah Road on the rear private open space would not be a reason to refuse the application. Overdevelopment 35 The land is within the RDCP Density Sub-Zone 3, which provides for a permissible density of one dwelling per 250m2 of site area. With a land area of 490.4m2, the density of the proposal has a density of one dwelling per 245.2m2, or a deficiency 4.8m2 per dwelling or 9.7m2 overall. The proposal would provide around 13m - 14m of rear open space and would provide for sufficient soft landscaping. 36 Mr Winnacott considered the RDCP objectives relating to residential density and subdivision and concluded: …the proposed development will contribute to the provision of a variety of dwelling types and residential environments in this area of Balgowlah. The area is generally characterised by mix of one and two storey dwelling houses as well as residential flat developments. I am satisfied that the development will respond to the character of the locality although the subdivision lot size will be smaller than other allotments containing single dwelling houses. Each of the proposed lots will have a frontage to a public road. There are no significant vegetation or topographical features of the site that will be adversely affected by the development. The subject site is presently connected to normal urban services and these will be available for the proposed development. 37 He considered the departure from the RDCP numerical standard to be "…of a minor nature," and the proposal "…satisfies the objectives for density contained in the RDCP" and that "…it is appropriate for the variation provisions of the RDCP, …to be used in the circumstances of this case." 38 Mr Nash considered, [Note: Exhibit 2, p 7]: …the non-compliance with the density and minimum allotment size controls in cl 3.1 of the RDCP will have detrimental outcomes on the character of the area, the quality of the existing streetscape and the amenity of adjoining dwellings which are contrary to the provisions and objectives of the RDCP. 39 I am satisfied that the RDCP allows for variations of the requirements and the allowance of such a variation would be appropriate in the present circumstances. The 4.8m2 variation in lot size would not create adverse environmental impacts of itself and the objectives of the RDCP are met as indicated by Mr Winnacott. Over the 6.085m frontage width the deficiency of area would result in the depth of lot 790mm less or a slight difference in the width of the lot for the same depth. I agree with Mr Winnacott that the departure is 'minor' and not a reason for refusal. Character of Area 40 During the course of the hearing the parties reached agreement on a method to retain the street tree in the council's verge in front of the subject land. This was achieved by bifurcating the driveway leading to the proposed garages and was shown in red on the plans in Exhibit E. At the kerb line the separation between the two arms of the driveway would be 4m centred on the street tree. The retention of this tree and the possibility of planting some vegetation on the land between the driveways would assist in screening the proposal from viewpoints in the street and would maintain the rhythm of tree planting in the street. 41 Mr Winnacott analysed the character of the southern side of Balgowlah Road between Hill Street and Marjory Thomas Place and noted the older style mainly single-storey dwelling houses. He noted an intermingling of residential flat buildings east of Hill Street and further west along Balgowlah Road. I too observed such a character on the southern side of Balgowlah Road near the land. 42 Mr Winnacott was of the opinion that the scale of the proposal would be such as to satisfy the requirements of the RDCP for a single dwelling development. 43 He concluded that the proposal would not be out of character with the area and would not have an adverse impact on the natural and built environment in the area. 44 The front of the proposal would be modulated in plan and elevation. There are two single garages facing the street however, these are not in the same alignment, being offset of around 500mm in plan and the western garage would appear as a single storey element with gabled roof and the eastern garage would appear as two storeys with sculptured balcony above. I am also satisfied that the design is such that it would not be out of character with the streetscape on the southern side of Balgowlah Road and I accept his evidence in this regard. I would not refuse the application for this reason. Other matters Daylighting 45 Despite the proposal not complying with the daylighting principle contained in Allan Robert Cooley and Janet Louise Patterson v City of Sydney Council [2006] NSWLEC 55, I am satisfied that the extent of daylight obtained at the side windows of the neighbouring properties might be seen as being not unreasonable in the circumstances of this case. My reason for arriving at this finding revolves around the fact that the proposal complies with the council's side setback requirements in the RDCP, either by way of allowing for the ground slope upwards towards the rear or by allowing an averaging as suggested by Mr Winnacott. Also the bulk of the proposal complies with the council's requirements. 46 Mr Wilson was particularly concerned in this regard and had prepared photomontages in his submission to the council to show the effect of the wall of the proposal, as it would extend past the line of his back wall at No 139 Balgowlah Road, [Note: Exhibit p 106. A similar situation would apply to No 141 Balgowlah Road although the dwelling on that property was of a different form. This extension of the sidewalls of the proposal beyond the line of the rear of No 139 Balgowlah Road by about 2m, would also cut off sunlight to each neighbouring dwelling in the early morning in the case of No 141 Balgowlah Road and in the late afternoon for Mr Wilson's property in midsummer. It could be expected that the extension of the proposal past the line for the rear wall of No 139 Balgowlah Road would also affect the daylight received in side windows. 47 I am satisfied that the length of the side walls is governed by the front setbacks and the FSR controls on bulk, that do comply with the council's requirements and were not in dispute. Thus, although the rear wall of the proposal would extend further to the south than the rear wall of the main neighbouring dwellings, I am satisfied the side windows of each would obtain a level of daylight that might be expected by applying the council's controls. I would not refuse the application for this reason. Heritage 48 The proposal is development in the vicinity of an item of environmental heritage, being 'Balgowlah Road (from Condamine Street to Manly Golf Club House), Balgowlah'. The avenue of street trees is important as part of the item. 49 With the retention of the street tree in front of the proposal, the heritage issue was not pressed strongly by the council. 50 I was told that the council will soon be augmenting street plantings and it might be expected that new trees would be planted to fill in the gaps in the commemorative row. Air conditioning units 51 It is proposed to locate the air conditioning units near the family rooms on the southern side of each dwelling. These units should be sound proofed so as to not create adverse noise impacts on the neighbours. If not properly sound proofed they should be relocated away from neighbouring bedrooms. 52 For the above reasons, the appeal is upheld. Conditions 53 The conditions are those in Exhibit 8 as amended during the hearing. Of particular significance was the conditions relating to the preservation of the street tree. These are: 2. The existing street tree proposed for removal is to be retained as shown on the amended architectural plan and as detailed in Conditions 69-72 inclusive. The new double width driveway is to be redesigned to enable retention of the existing tree, with separate driveways to each dwelling provided on either side of the tree. Amended plans to give effect to this are required to be provided to the Council and the Court within 28 days of this consent. 69. The existing street tree is to be retained and protected during construction and pruned to provide a clearance of 2.2 metres high at a distance of 1.5 metres east and west from the base of the trunk. 70. Driveway crossings to give a clearance of 1.5 metres either side of the existing tree. 71. The driveway is to be bifurcated with the allowance of a porous surface treatment on the central triangular are created by the divided driveway within the property. 72. Provision to be made for soft landscaping between the proposed driveways to reduce the visual impact of the development . 54 Condition No 1 states that the dwellings are not to be occupied until the subdivision for which consent has been granted is registered. 55 Condition No 3 is included to reduce overlooking of the neighbours from the upstairs areas of the proposal. 3. The east and west facing windows of Bedroom 1 and Bedroom 2 of Dwellings A and B are to have obscured glazing below a height of 1.5m as measured from the floor level in order to minimise overlooking into the rear of the eastern neighbouring property. The obscured glazed portion of the windows is to be fixed. Amended plans are required to this effect prior to issue of a Construction Certificate. Orders 56 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 222/05 lodged with the respondent council on 2 June 2005, to demolish the existing dwelling, to Torrens title subdivide the land and to erect two attached dwelling houses on Lot 16, DP1069173, being No 141 Balgowlah Road, Balgowlah, is approved subject to Conditions 1 to 73 in Annexure A.
3. The exhibits except for Exhibits A, E, 8, 10, 11 and 14 are returned.

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 http://www.lawlink.nsw.gov.au/lec/

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