The evidence
10The matter commenced on site where an inspection of two adjoining properties was conducted in the company of the parties' experts and the owners of those properties. The Court was shown the living areas of No 72 Ellalong Road and the likely impact of the proposed building works in relation to solar access to those areas was discussed between the experts. The location of the proposed doorway was also viewed and the concerns of the owners heard in relation to perceived impacts on their privacy. Observation of the site was also undertaken from the upper level main bedroom where the owners provided evidence of their concerns regarding building bulk, impacts on privacy from the proposed upper floor deck and the loss of the tree which they say provides amenity to the area, is a haven to birdlife and screens a tall sewer vent.
11An inspection of No 74 Ellalong Road followed and again, inspection of the interior of that residence was undertaken and evidence heard from the owners of their concerns, which primarily related to privacy impacts from the proposed deck and the impacts from the removal of the tree, particularly with regard to a liquidambar which is located on their property in close proximity which they believe may be compromised if the tree is removed. They too support retention of the tree due to its amenity, attraction to birdlife and screening of the sewer vent.
12Evidence was then heard on site from two owners of the properties to the west, which have frontage to Ryries Parade. The owner of the land immediately to the west spoke in support of the application and of the removal of the tree. The owners to the northwest spoke of their opposition to the tree removal as they say it provides privacy to their property. The site inspection concluded with a view of the site, the tree and the location of the proposed building works and pool and the relativity of levels with regard to the adjoining properties.
13Following the site inspection the matters raised on site were discussed and various options to address the concerns raised however, no agreement was reached and the conciliation phase was terminated and the matter proceeded to hearing.
14Expert evidence was heard from Mr Barwick for the applicant and Mr Mossemenear for the council. The experts agree that the size of the proposed balcony, its location off a bedroom and the setbacks provided ensures that privacy is not an issue. They also agree that there is a breach of the building height plane for both the rear single level component and the two-storey section of the proposed building. The extent of the breach to the building height plane was agreed by the experts and drawn on a section plan that had been tendered as Exhibit H in the proceedings. Both experts agree that the proposed breaches should be assessed against the performance criteria contained in Clause 18(5) and the objectives in Clause 18(1) of the LEP.
15Both experts agree that the impacts of the proposed development are to the adjoining property No 72 Ellalong Road however, they disagree as to the extent of that impact and whether the impact is material. They also agree that the 'living areas' of that dwelling which need to be considered comprise the rear portion of the ground floor section and that comprises what was designated on the plans approved by the council for alterations and additions to that dwelling in 2009 as the family, dining, kitchen, TV/lounge area and the external covered deck. It was apparent during the inspection of the residence undertaken by the Court that the use being put to those areas differs from that shown on the plan and the area designated as the family room is now used as a dining area and the area designated for the dining area now forms part of a larger lounge area.
16The 'living areas' of No 72 Ellalong Road benefit from a number of windows and glazed doors and for the purposes of discussion, the use of the dwelling as it was viewed is discussed. The main living area has a bay window at the eastern end of the area and a smaller window at the western end within the northern wall facing the side boundary and the site. French doors provide access from the living area to the deck in the western wall of that living area. A second set of doors provide access to the deck in the northern wall of the dining area and a large window is provided to the western wall of that dining area. A smaller south facing window services the kitchen area.
17The extent of overshadowing as a result of the proposed works was detailed in shadow diagrams included in the town planning experts' joint report. The experts agree that the development has no impact on solar panels and that the solar access required to private open space is met. They disagree on whether compliance with the required control to living areas is satisfied.
18Mr Barwick considers that the breach of the building height plane for the rear section of the building is minor and whilst he acknowledges that the breach is more significant for the two storey component he does not consider that it results in any material impacts. He supports the objection to the development standard that was submitted in regard to the variation of the building height plane control and says that the impact must be measured when guided by the DCP consideration of solar access. These guidelines at Section 7.2f require that development is designed to provide at a minimum, three hours of solar access between 9 am and 3 pm on 21 June that allows solar access to solar panels, main internal living areas, and the principal private open space areas. He says that the windows to the dining area and family area (western extent of the now living area) receive sunlight from 10 am to 3 pm and therefore the development has been designed to comply with the DCP requirements. When the shadow impact of the side boundary bay window is considered, he make the observation that the window is a side window to a TV/lounge room, it provides a secondary source of sunlight to the living zone of the dwelling and that the rear facing side glazing panel of the bay window receives sunlight from approximately 12.30 pm to 3.00 pm so receives 2.5 hrs of sunlight in mid-winter. He concludes that under these circumstances the impact of the works in not material.
19Mr Mossemenear says the consequence of the breach to the building height plane is an unacceptable overshadowing impact to No 72 Ellalong Road, particularly with regard to the recently installed side bay window, which, on the evidence of the owners of that property was installed to provide additional light to the living area. He says that the window currently has direct sunlight from 10 am to 2 pm in midwinter, that the proposed dwelling would overshadow the bay window from before 10 am to 1 pm and that the available sunlight would be reduced from 4 hrs to 1 hr and concludes that the overshadowing of the subject bay window is both a material and unacceptable impact.
20Mr Mossemenear suggests that it would be possible to relocate the proposed ensuite to the upper floor main bedroom so that the bay window retains 3 hrs sunlight. In addition, he suggested that the southern planter box, which surrounds the proposed deck, be deleted and the lower roof area above the proposed living area be extended but increased in height to 3.0 m from the currently proposed 2.4 m. Those and similar options were put to the applicant not only during the conciliation phase, but on evidence provided by the council and agreed, prior to determination of the application by the council however were not accepted.
21Mr Barwick advises that the option in relation to the redesign of the rear deck and lower roofed living area would have a more detrimental impact on the adjoining property that is proposed as he says the design has been thoughtful in reducing the bulk and scale of the development through a change in floor level, unlike the two adjoining properties.
22With regard to the proposed side door, evidence was provided that it is intended to facilitate access to the bathroom area by persons using the pool to avoid the need to access that area through the main living areas of the dwelling. The proposed doorway is said to be a solid door and would replace existing obscure glass windows to the current bathroom. That room is to be enlarged as part of the application however no details of how the room is to receive light and ventilation are provided. It was evident from the inspection of No 72 Ellalong Road that the proposed doorway is immediately opposite the bay window to the living area of that dwelling. The applicant proposes a 1.5 m high screen inside the property boundary along the landing and stairs, which would service the doorway. The residents of the adjoining property do not consider that such a screen would protect their privacy and that the light and noise associated with the use of the door would result in loss of amenity. The applicant argues that the use of the door would be limited and that the screen would provide adequate protection to ensure no impacts.
23Mr Barwick says that the occasional use of the side door would not have a detrimental impact of the adjoining dwelling and does not accept that the privacy screen that would project 500 mm above the proposed 1.8 m high boundary fence would be objectionable or unreasonable and says that it raises no privacy concerns or unacceptable outlooks from a side elevation TV room. Mr Mossemenear disagrees and says the door access should be deleted.
24The applicant has submitted an arborist's report is support of the application for tree removal. That report describes the camphor laurel tree as being "in good health, although in fair to poor condition. The tree (tree 2) shares a crown with the neighbours' tree and removal may expose the neighbours' tree to increased wind loading to the west side of its crown." It concludes that "Whilst the removal of Tree 2 is supportable based on its condition, the impact of removal on the crown stability of Tree 1 (the liquidamber at No 76) may create conditions conducive to branch failures. Whilst the council's Landscape Development Officer did not object to the removal of the tree, it is apparent from the evidence of residents that it provides a level of amenity.