Ausling v Willoughby City Council

The site inspection

1. The site inspection was held with the legal representatives of the parties and those advising and instructing them. At the commencement of the site inspection, I heard evidence given informally by a number of objectors whose properties were located in the vicinity of the site. Notes of this evidence together with some documents from which the objectors read were subsequently tendered and became Exhibits 8 and 9. I also visited the properties fronting Kendall Road that flanked the site. During the course of these visits, I heard further informal evidence given by the residents of these properties.
2. During the course of the site inspection, a height pole was raised on the site at various locations at heights agreed to between representatives of the parties. The height pole was viewed from three differing locations in at the rear of 24 Kendall Road - these locations being:

• the rear patio adjacent to the dwelling;
• the grassed rear yard immediately beyond the swimming pool structure further to the rear; and
• somewhat further beyond the second viewing point toward the end of the usable grassed open space in the rear of this property.

1. There was no need to enter the site to inspect it as there had been an adequate opportunity to observe the entirety of the rear of the site from the rear yard of 24 Kendall Road.
2. I note that the Council's town planner, Mr Vescio, had apparently originally suggested that there might be some adverse impact of the proposed development when viewed from a nearby main road, the Eastern Valley Way, but this was abandoned during the course of the site inspection and there was, as a result, no need to go to a more promote viewing location back toward the site from that road.
3. Further, although Mr Green, solicitor for the applicant, had indicated that there were a range of locations within the suburb that were evidenced in photographs in the joint expert town planning/urban design report (Exhibit 5) as demonstrating the evolutionary transition occurring in the suburb, it was not necessary to inspect those locations as the Council conceded the nature of the transition being undertaken. However, Mr Staunton, counsel for the Council, indicated on site that the Council maintained that, relevant to my consideration of the issues, the appropriate locality was that within the immediate proximity of the site being portions of Kendall Road and Cove Circuit, a street at right angles to Kendall Road only a little offset to the south from the frontage of the site.

The issues

1. The Council filed a Statement of Facts and Contentions (Exhibit 10) on 7 November 2014 that set out what the Council said, on the basis of the plans that were then those relied upon by the applicant, were the factors that warranted refusal or contributed to warranting refusal of the proposal. As part of the pre-trial process granting leave to the applicant to rely upon the then amended version of the plans, the Council was also granted leave to file an Amended Statement of Facts and Contentions. This document, filed on 19 May 2015, became Exhibit 1. I will return to a common element of each of these two documents in more detail later.
2. During the course of his opening, Mr Staunton summarised what remained in contention, in light of my granting leave to rely on further amended plans (Exhibit A). In broad terms, the matters that he said remained issues to be addressed in the proceedings were:

• Non-compliance with the relevant required floor space ratio (FSR). With respect to this issue, there were two areas of disagreement between the parties.
• First, there was a factual dispute between the parties as to whether some areas should be included or excluded from the FSR calculation.
• The second area of disagreement was a more complex area of statutory interpretation about the interaction (in the Council's view) between the SEPP and the Willoughby Local Environmental Plan 2012 (the LEP). Put briefly, the Council contended that, on the proper interpretation of the relevant instruments, the proposed FSR (whether the disputed areas are included or not being irrelevant for this purpose) exceeds that which is permitted and that the applicant's contingent (contingent because the applicant does not accept the interpretation proposed by the Council) objection pursuant to cl 4.6 of the LEP to compliance with the required numerical standard contained in the LEP was inadequate and should be rejected;
• The orientation of the apartments on the middle and upper levels (being the orientation of the living area and the primary private open space of each toward the south) results in unacceptable outcomes in two specific respects. In this regard, the Council says that the solar access for these four apartments, as a consequence of their orientation, is entirely inadequate and is unacceptable.
• Further, the Council says that the orientation, which causes the balconies that comprise the principal private open space of these apartments to be on the southern (rear facing) side of the proposed building, has an unacceptable privacy impact on the open space at the rear of each of the properties adjoining the site;
• There is no common open space proposed for the development and provision of such common open space is a requirement of the SEPP;
• The presentation of the proposed building (particularly, as I understood Mr Staunton's summary, the unbroken roof form and side setbacks) was not consistent with the current and desired future character of the locality within which the site is situated; and
• Finally, the Council says that the lengths of unbroken walls presenting to the side boundaries are unacceptable.

1. After Mr Staunton set out this summary of the Council's position, I indicated that it would also be appropriate to have the relevant witnesses address the question of whether, with respect to 28 Kendall Road (the adjacent property to the east), it was appropriate for the development on the site to rely for privacy protection upon the ~ 4 m high hedge located on the neighbouring property.
2. Similarly, I also indicated that I considered it appropriate that the town planning and urban design witnesses deal with the question of privacy impacts on 24 Kendall Road, the adjacent property to the north, where new landscaping on the site was proposed to be used to effect screening in circumstances where:

• this element of the privacy protection for the residents of 24 Kendall Road was proposed to be achieved by landscaping (contrary to the second element of the planning principle enunciated in Super Studio v Waverley [2004] NSWLEC 91); and
• the landscaping depicted on the photomontage (Exhibit F) showing the proposed screening landscaping depicted that screening being achieved with five years growth and no evidence concerning what would be the privacy position during that intervening period.

1. I also expressed concern that I did not have information on what the potential impact would be of the construction of the proposed accessible pathway that would link the front of the site to the nearest bus stop to the north-west. Whilst there were three plans that showed levels at relevant locations along the path, there was no long section that would permit any assessment of whether or not construction of a compliant path in the fashion proposed would have any adverse impacts on any driveway access to other properties traversed along the route of the path.

The relevant plans

1. In my view, as discussed in detail below, the first element (solar access) of the second of the issues in Mr Staunton's summary is determinative in this appeal.
2. Before turning to the framework within which this topic should be considered and the evidence concerning it, in order to understand that which follows, it is appropriate to set out a copy of the two plans showing the layout of the middle and upper floors of the development.
3. To enable a sufficiently sized reproduction of each of the plans, they have been rotated through 90° when scanned for inclusion in this judgement. The plans reproduced below are the Revision I plans, the revision for which leave was granted at the commencement of the court hearing after the site inspection. These two plans formed part of Exhibit A.
4. In the first of the above plans, a deal of the sunlight that goes into the living spaces of apartments 4 and 5 comes through a skylight (the sole such source for apartment 5) and sunlight also comes through highlight windows with sills at 2 m along the western facade of the proposed development (apartments 2 and 4).
5. There is no suggestion on behalf of the applicant that cl 50(e) of the SEPP (set out later) is satisfied.
6. My understanding of the position adopted for the applicant is that a combination of the extent of the solar access that would actually be achieved by the design should be coupled with the outlook available to the immediate district views below the escarpment toward the Eastern Valley Way and then (I readily accept, of greater visual attraction in the outlook) to the dramatic skyline of the Chatswood CBD on the horizon beyond. In the oral evidence on behalf of the applicant, it was suggested that that element of the view to the south would be as attractive during the evening and night as it would be during the daytime. I readily accept that proposition for the purposes of this analysis.
7. As can be seen from the plans earlier reproduced of the middle and upper levels for which consent is now sought, each of the proposed apartments on these levels would have a space described as a sunroom located at the northern end of each apartment. In each instance, this sunroom would only be able to be accessed through the master bedroom of each apartment
8. In addition, for two of the apartments (apartments 4 and 5) there is a smaller north facing balcony at the northern end of the proposed development. Each of these balconies would, also, only be accessible through the master bedroom. Proposed apartment 3 would not have such a balcony as its northern facade is located above the driveway to the basement car parking area with the result that the necessary clearance for access to the basement precludes the incorporation of such a balcony in that apartment.
9. Apartment 2 also has a secondary balcony and ground level secondary open space in the front setback to Kendall Road. These are both accessible through the master bedroom of this apartment.

Further amendments - apartment 1, skylights

1. There were late changes to the design of the ground floor apartment (apartment 1) on the morning of the second day. As a result of the overnight consideration of matters raised on the first day, Mr Green provided proposed amendments to the plans involving a complete internal redesign of this apartment. He sought leave to amend, further, the development application to incorporate this redesign.
2. Mr Staunton did not object to the granting of leave to amend further but did wish to provide Ms Ogilvy, the resident of 24 Kendall Road who gave evidence on her property, with the opportunity to examine and comment, if she wished, on these proposed changes. A short adjournment was taken to permit her to discuss these proposed changes with Mr Staunton and Mr Vescio. She subsequently gave short oral evidence about what remained her privacy concerns for her rear grassed open space if the development were to proceed and incorporate the revised layout to the lowest level.
3. It is unnecessary to discuss her concerns at any length for two reasons. First, perhaps more substantially, I have concluded for other reasons that the proposal must be rejected. Second, however, the likely construction of a conventional solid boundary fence between her property and the site would, because of the levels of the lowest apartment and the levels of her grassed rear open yard, mean that there would not be any overlooking from that level into her property.
4. The effect of the redesign of the lowest level can be seen from two extracted plan images. These are reproduced below. The first is the relevant element from the revision I plans whilst the second shows the same element, now effectively entirely redesigned in the revision L plan for that level. These images are reproduced below with the revision I image appearing first:
5. The consequence of this redesign (and my granting of leave to rely upon it) is that the kitchen is now proposed to be relocated to the north-western corner and has the benefit of significant clear glazing to its west (relevant to the solar access issues) and to the south. The question of the solar benefits to be obtained are discussed in more detail later in the context of the view to the sun diagrams now provided (Exhibit L) and the analysis of those diagrams undertaken by the town planning/urban design witnesses (Exhibit 11). The consequence of leave being granted to rely on these plans (and acknowledging that they have been drafted by the applicant's architectural team under some pressure overnight and thus containing handwritten corrections) would have been the necessity to replace them without the handwritten annotations had the proposal been approved.
6. Entirely uncontroversially, in addition to the redesign of the ground level apartment, the applicant's architectural team also proposed a reorientation of the skylights to apartments 4 and 5 so as to increase, modestly, the solar performance provided by them. This amendment was also not opposed by the Council.
7. The amendments to the skylights were incorporated in the modelling that produced the view to the sun diagrams (discussed below) but no revised roof plan (understandably, also, given time constraints) was produced. Again, had there been an approval of the proposal, a revised roof plan would also have been required prior to the granting of consent.

Referencing the orientation of the site and the plans

1. Although the long axis of the site is not strictly oriented in a north-south direction, as is conventionally utilised in the analysis of proposed developments, attribution of the cardinal points of the compass (for descriptive purposes) is made. In this instance, it is both convenient and relevant to regard the frontage of the site to Kendall Road as being to the north with, for subsequent descriptive purposes, attribution of the other cardinal points of the compass following from that.

Dealing with solar access and orientation

1. There can be no doubt that the applicant has been on notice since the filing of the initial Statement of Facts and Contentions (Exhibit 10) on 7 November 2014 that the question of internal amenity, particularly solar access, has been a specifically pleaded concern of the Council. Contention 7 in Exhibit 10 is reproduced below:
2. Further, in the Amended Statement of Facts and Contentions (Exhibit 1) filed on 19 May 2015, the same contention was pressed in contention 6 (although particularised differently). The 2015 contention so far as it relates to solar access is reproduced below:
3. During the course of the afternoon of the first day of the hearing, I indicated to Mr Green (immediately after the town planners and urban designer were sworn in) that I wish to raise a matter in the absence of the witnesses and of the applicant's architectural team. In response to a question from Mr Green, I indicated I had no objection to his clients remaining present for the discussion. After the witnesses and the applicant's architectural team left the courtroom, I indicated to Mr Green and Mr Staunton that I wished to raise the question of the orientation of the apartments in the middle and upper level with the witnesses in the context of putting the proposition to them that, in effect, a 180° reorientation of these four apartments would resolve both the solar access and privacy issues.
4. I indicated tentatively that I considered that the solar access issues were sufficiently serious, in my view, as potentially to warrant refusal of the proposal. I discussed with Mr Green and Mr Staunton whether or not it would be appropriate to deal with that issue immediately or to defer solar amenity issues until the following morning to enable the experts to consider the matter further in light of whatever revised diagrammatic representations might be produced by the applicant's architectural team. The conclusion of this discussion was that it was appropriate to deal with the matter forthwith.
5. With respect to solar access, the applicant's architectural team had not produced any conventional shadow diagrams but had, for the purposes of joint conferencing of the experts, produced "view from the sun" images (Exhibit K). These images were produced based on the angle of the sun at the winter solstice and, relevantly, were produced with diagrams at hourly intervals commencing at 9 AM and concluding at 3 PM on 22 June.
6. The applicant's architectural team proposed to prepare, overnight, a contrapuntal set of diagrams, being diagrams of "views to the sun", for the winter solstice at those hours.

Summary of conclusion on solar access amenity

1. I have concluded that, as the solar access amenity for the proposed development is very poor, and quite unnecessarily poor, the proposed development warrants refusal. In the following sections of this judgement, I set out:

• the framework within which this issue is to be considered;
• the evidence (both written and oral) on this point; and
• the basis upon which I have reached the conclusion that this inadequacy is sufficiently great to warrant, in its own right, refusal of the proposed development

1. As I indicated to Mr Green in my foreshadowing to him that this was a matter of significance in my evaluation process, I do not consider that dealing with a reorientation of the proposal of the nature necessary is one that is amenable to the "amber light" approach frequently adopted when modest changes to a development can be imposed by the decision maker to render an otherwise unacceptable development acceptable.
2. It would be entirely inappropriate, in my view, for me to endeavour to do such a redesign for this proposal as such a redesign could take many forms.
3. It would be equally inappropriate for me to offer any commentary on other issues in these proceedings arising from the present design as, if some further development application on a reoriented proposal were to be advanced, such a new design would need to be assessed on its singular merits. Gratuitous advice from me on how other matters of concern to the Council might be resolved (if they needed to be resolved) would be inappropriate. This position is entirely consistent with the decision of Bignold J in Manzie v Willoughby City Council [1996] NSWLEC 26.

The relevant provisions in and arising from the SEPP

1. At the outset, it is appropriate to observe that the SEPP is a beneficial and facultative policy designed to achieve a socially desirable policy outcome - namely increasing the provision of housing for the elderly or for people with a disability. The achievement of this socially desirable policy outcome has necessitated, in the view of successive State governments, a planning framework created by the SEPP that has the outcome, to the extent of any inconsistency between the SEPP and an applicable local environmental plan, that the SEPP prevails and, to the extent of any inconsistency, the local environmental plan is ousted. This position applies with respect to the LEP that is applicable in these proceedings.
2. Whilst a broader range of provisions of the SEPP were canvassed in the proceedings, given the conclusion which I have reached on the narrow issue of solar access amenity being fatal of the development proposal, it is only necessary to set out the specific provisions that are called up for consideration in this context.
3. These provisions are "have regard to" not compliance requirements as a consequence of cl 32, a provision in the following terms: 32 Design of residential development A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2.
4. Division 2 of the SEPP contains a number of provisions that are relevant to design issues. The one dealing specifically with solar access is contained in cl 35. This clause is in the following terms: 35 Solar access and design for climate The proposed development should: (a) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space, and (b) involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation solar heating and lighting by locating the windows of living and dining areas in a northerly direction.
5. Complementing these provisions, is one of the elements of cl 50. This clause sets out a number of elements which, if complied with, cannot be used as a basis for refusal of an application made pursuant to the SEPP. On this confined issue, the relevant element concerning solar access is contained in cl 50(e), a provision in the following terms: 50 Standards that cannot be used to refuse development consent for self-contained dwellings A consent authority must not refuse consent to a development application made pursuant to this Chapter for the carrying out of development for the purpose of a self-contained dwelling (including in-fill self-care housing and serviced self-care housing) on any of the following grounds: ……………………. (e) solar access: 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, …………………….
6. There is no dispute that the cl 50(e) standard is not achieved by this proposal.
7. The SEPP was contained in the first volume of the Council's bundle, Exhibit 2, behind tab 4. This exhibit also contained, behind tab 6, a document entitled Seniors Living Policy - Urban design guidelines for infill development. The terms of this document are called up for consideration by virtue of cl 31 of the SEPP itself. 31 Design of in-fill self-care housing In determining a development application made pursuant to this Chapter to carry out development for the purpose of in-fill self-care housing, a consent authority must take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration) the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004.
8. A number of portions of these Guidelines are relevant to this confined issue of solar access. Some of them are preambular and some topic specific.
9. It is, first, appropriate to set out portion of the initial overview to this document under the heading Requirements of the Seniors Living Policy. The relevant extract is in the following terms: Consent authorities are also required to take these guidelines into consideration when assessing applications for infill development made under the policy (cl 29). The onus then also falls upon applicants to be familiar with these guidelines, and to use them to ensure that new development provides a high level of amenity for both new and existing residents.
10. Although the referencing of cl 29 in this extract is inaccurate and should be a reference to cl 31, nothing turns on this.
11. Part 2 of the Guidelines is entitled Site planning and design. The third of its five objectives is relevant. It is in the following terms: To provide high levels of amenity for new dwellings
12. Then follows a number of discrete matters dealt with under the heading Design principles and better practice. The first of these, under the heading General, is in the following terms: Site design should be driven by the need to optimise internal amenity and minimise impacts on neighbours. These requirements should dictate the maximum development yield.
13. Under the heading Built form, there are three elements, the third of which - Design and orient dwellings to respond to environmental conditions - has two sub-points. The first of them is relevant to this proposal. It reads: Orient dwellings on the site to maximise solar access to living areas and private open space
14. Part 5 of these Guidelines deals with Internal site amenity. The first extract that is appropriate to reproduce is the third paragraph of the introduction to this Part of the guidelines. It reads: Key design issues include the quality of communal spaces, the size and quality of private open space, the orientation of dwellings for solar access, and achieving a sense of individuality for dwellings on the development.
15. Of the objectives in this Part that are set out, one of them, the fourth, is relevant to this consideration. This objective is in the following terms: To ensure adequate solar access to living areas and private open space 1. The document then sets out a number of Design principles and better practice. On folio 527 of Exhibit 2, the following appears dealing with of such a development: Design dwellings to maximise solar access to living areas and private open spaces.
16. Finally, on folio 528 of Exhibit 2, there is relevant material on this confined issue under the heading of Residential Amenity. The portion appropriate to be extracted, in the limited context I am discussing, is in the following terms: Provide private open space that is oriented predominantly north, east or west to provide solar access.
17. It is clear that the SEPP places a heavy emphasis on the need to have high amenity for those persons who are to live in apartments where the development has been made possible only because of the beneficial planning regime brought into play by the SEPP. It is also clear from this emphasis on amenity for residents of such developments, (particularly, in the context of this proposed development, the various solar access provisions that I have reproduced) that it would be a significant departure from the intent of the SEPP if this development were to be approved - given its starkly obvious non-compliance with the various provisions concerning solar access earlier set out.

The council assessment report

1. It is now appropriate to set out the relevant written and oral evidence concerning this topic. It is, in my view, appropriate to do this by commencing with the Council's internal analysis contained in the assessing officer's report to the Council - considered by the Council when it determined to refuse the proposed development. It is fair to say that the assessing officer's comments on this topic (Exhibit 4 page 63) can be regarded as laconic. Under the heading Solar access and design for climate (clause 35), the document reads - relevant to solar access on the site - as follows: The proposed dwellings generally have good solar access and ventilation. Although the proposed unit 1 is partially excavated below existing ground level, its amenity is well compensated by its generous outdoor/private open space.

The planning/urban design joint expert report

1. The relevant portions of this document (Exhibit 5) are reproduced below - GM is Ms Morrish, the applicant's urban design expert and JV is Mr Vescio:

The planning/urban design oral evidence - first day

1. It was the opinion of Ms Morrish, expressed during the oral evidence on the first day, that the sunroom spaces should be regarded as appropriate provision of indoor living spaces receiving solar access. As I understood her evidence, she did not accept that the restriction caused by access only being through the master bedroom reduced this utility as she expected that, despite these proposed apartments having two bedrooms, they could be expected to be occupied, predominantly, by a single couple with the second bedroom being for overnight guests (such as visiting children/grandchildren) or used as a study.
2. Even accepting this proposition, for the purposes of this discussion, a modestly dimensioned sunroom accessible in such a fashion cannot be regarded as an adequate substitute for a larger living space of the nature proposed for the southern end of these apartments, a space that incorporates the kitchen for each apartment.

Landscaping - privacy and solar access conflicts

1. I earlier noted that I had raised with Mr Green the concern that that I held arising from the evidence that Ms Sonter, the applicant's landscaping expert, had given on site that the vegetation depicted in the photomontage (Exhibit F) would not achieve the desired height of 5 m for some five years after it was installed on the site. Mr Green requested that Ms Sonter be given the opportunity, in court, to address this issue. Her evidence was interposed during the early portion of the second morning of the proceedings. She indicated that she had made enquiries overnight and that an arrangement was possible (and tentative steps taken to ensure it could occur) whereby the vegetation planted between the proposed development and the boundary with 24 Kendall Road would be at approximately 3 m in height prior to completion of the project and occupation by any new residents.
2. She was also questioned, relevant to the issue of solar access for the ground level dwelling and the middle level dwelling on the western side by the vegetation depicted in the photomontage (Exhibit F - reproduced below):
3. She conceded that the landscaping would effectively almost remove any opportunity for sun penetration, during parts of the middle of the day, being achieved by these two proposed dwellings. She felt that there might be some small elements of sunlight but that there would be a virtually entire removal.

The view to the sun diagrams - second day

1. On the morning of the second day, Mr Green tendered a set of "view to the sun" diagrams - these became Exhibit L. The impact of the proposed vegetation on solar access was factored into the calculations based on Exhibit L undertaken by the town planning/urban design experts in the preparation of the tables that became Exhibit 11 and are discussed below.
2. In their analysis of these view to the sun diagrams, the town planning/urban design experts disagreed as to their interpretation of what the term "substantial areas" meant when used in cl 35(a) of the SEPP.
3. As a consequence of the disagreement between Mr Vescio, on one hand, and Ms Levy (the applicant's town planning expert) and Ms Morrish on the other, it is necessary to reproduce the two versions of the results of the primary solar access analysis for the living rooms and private open space of the five apartments. The first table reproduced below sets out the agreed position between the experts as to the amount of time between 9 AM and 3 PM when or if each apartment would achieve solar access to its main living areas or private open space. That table shows: Apartment Number 1 2 3 4 5 Hours of sun - main living areas 2 0 0 4.5 0 Hours of sun - private open space 3 1 0 2 0

1. Mr Vescio, however, disputed whether a number of sun lit elements depicted in the view to the sun diagrams should be included as constituting sunlight to a substantial area of a private open space. There were, on my count, seventeen such instances shown in the primary analysis table in Exhibit 11.
2. It is unnecessary to reproduce and mark each of the diagrams to understand the nature of the disagreement between the experts. I reproduce below a portion of two of the view to the sun diagrams and I have, to understand this issue, circled the area of sunlight falling on the private open space of apartment 3 and the main living area of this apartment where the disagreements arise. Whilst all the other instances are not precisely the same, these instances, in my assessment, are representative at least (and arguably the best for the applicant) for the private open space and living areas of this disagreement.
3. In considering how to approach this matter, I make two initial observations. First, the expression substantial areas, is not defined in the SEPP. Second, I am satisfied that a necessary inference to be drawn from the use of this term (rather than some more prescriptive numerically inferring term such as majority or at least 50%), means that for the purposes of satisfying the term, the sunlight does not need to fall on half or more of the relevant location.
4. In each of the instances in dispute between the experts, it appears to me that there is no area where the sunlight falling within the relevant space falls on more than a third of the relevant space.
5. Whilst there is no numerical guidance to assist me, I do not consider that sunlight to that limited extent could be regarded as substantial in the context of the dimensions of the spaces under consideration. In saying this, I am satisfied that the dimensions of the space are equally relevant to the dimensions of the sun lit area in what should be a qualitative as well as qualitative analysis. This is because, self-evidently, in a qualitative sense, 30% of a 70 m² space being in sunlight will provide an attractive and useful patch of sunlight whilst the same, equally self-evidently, could not be said when 30% of a 5 m² space was in sunshine.
6. In this context, I reproduce one of the view to the sun diagrams where Mr Vescio says that the area of private open space in sunlight should not be regarded as substantial:
7. I also reproduce another of the view to the sun diagrams where Mr Vescio says that the area of main living space in sunlight should not be counted:
8. If it was necessary for me to determine each of these seventeen areas (if such an assessment was triggered by a finely balanced consideration of acceptability versus unacceptability), I would be inclined to support the position adopted by Mr Vescio. However, given the overall conclusion I have reached on solar access as necessitating the refusal of the proposal, I considered it appropriate to take the applicant's case at its highest on the experts' analysis of these solar diagrams.
9. As a consequence, I reproduce below, the table that is derived by accepting the position advanced by the applicant's experts on this point and including all areas rejected by Mr Vescio. That table is set out below: Apartment Number 1 2 3 4 5 Hours of sun - main living areas 2.5 0 0 4.5 2 Hours of sun - private open space 3 1.5 0 3 1

1. It is clear from this table that this proposed development does not come "within a bull's roar" of compliance with the 70% of these apartments having main living areas and private open space receiving direct sunlight for three hours between 9 AM and 3 PM on the winter solstice, this being the "must not refuse consent" compliance standard set in cl 50(e) of the SEPP. Two apartments (40%) are private open space compliant whilst only one unit (20%) is main living areas compliant.
2. However, the extent by which three of the five apartments fail to come in any reasonable proximity to 3 hours to either the main living areas or private open space demonstrates a major deficiency in the design when there is no attribute of the site that would act to prevent achievement of major improvements to solar access and, prima facie, compliance (and likely better than compliance) with the "must not refuse" solar access standard.

Reorientation disbenefits

1. It was the opinion of the applicant's experts that reorientation of the apartments would not achieve the combination of benefits (sunroom space and views) that would be achieved by the present design. I am unable to accept that proposition.
2. In this context, it is appropriate to note that Kendall Road is not a major thoroughfare and there is no acoustic or visual impact reason why it would be inappropriate to have balconies and living rooms oriented to the street frontage. Indeed, apartment 2 is proposed to have a significant secondary balcony and secondary area of private open space to its north - thus rendering this apartment well provided with solar access in outdoor spaces reached by traversing the master bedroom.
3. Further, to the limited extent that there may be visible or audible activity (comparatively limited though this might be expected to be) on Kendall Road, the proposed development would have a minimum ~ 12 m setback to the front façade (at apartment 2) from the street frontage (generally consistent with the setback pattern in the locality as can be seen from various air photos in the attachments to the joint expert planner/urban design report - Exhibit 5).
4. I have earlier set out why it would not be appropriate in light of the narrow basis for my rejection of this proposal for me to offer detailed gratuitous advice on what might be an appropriately designed new submission for a SEPP compliant development on the site if such an option were to be pursued.
5. However, it would seem to me that, if such a redesign were to be pursued, a secondary living space at the southern facade coupled with a more modest balcony from it (whether both were accessible through the master bedroom or independently being a matter for design consideration in the development of such a proposal) would still preserve an appropriate opportunity for enjoying the views to the south whilst mitigating privacy impacts on the open space to the rear of both adjoining properties.

Costs consequences of the amendments

1. As a consequence of the amendments to the application during the court hearing, I asked Mr Staunton and Mr Green to discuss what order, if any, was required to be made in consideration of the provisions of s 97B of the Environmental Planning and Assessment Act 1979. After the lawyers had had the opportunity to confer and seek instructions, the position emerged that the parties agreed that the amendments were not minor and thus a costs order was mandated. However, Mr Staunton indicated that he was instructed to accept the sum of $1.00 (one dollar) as the appropriate amount to be incorporated in such an order. It is unnecessary for me to go behind that agreed position or to speculate on the reasons for that agreement. That agreed outcome is, therefore, reflected in the orders at the conclusion of this decision.

Privacy

1. Although I have concluded that poor solar access, on its own, warrants refusal of the proposal, it is appropriate to offer some short comments on the privacy issue that arises from the principal private open space of apartments 2, 3, 4 and 5 - being their balconies at the southern end of each of these proposed apartments.
2. During the course of the site inspection, a height pole was raised that showed, first, the most south-western trafficable point of the balcony proposed for apartment 4 on the uppermost level.
3. This pole was also used to show what would be the conventional assessment eye height of an observer (1.6 m above the top of the slab) at this point. The development proposes a privacy response at the middle and uppermost levels along this boundary of incorporating a 1.8 m high frosted glass privacy screen along the western edge of this balcony. Mr Green suggested, particularly with respect to this balcony on the uppermost level but also, as I understood him, with respect to the balcony below, that a modest return frosted glass screen could also be added along the southern face of these balconies to add to the privacy protection for the neighbouring property to the west (22 Kendall Road).
4. Although I accept that the overlooking from this balcony (being the most intrusive of the four possible overlooking locations) would permit extensive viewing into the private open space of the adjacent property, I accept that this impact, although undesirable, would not warrant refusal in its own right and could only make a very modest contribution to consideration of cumulative impacts.
5. I have reached this conclusion because of two factors. These are:

• any observer standing on this balcony is much more likely to have the eye drawn to the dramatic skyline views of the Chatswood CBD on the horizon; and
• the private open space element of the neighbouring property is not likely to be the dominantly used private open space on this property. I accept Mrs Ogilvy's evidence that her grandchildren play in this space but the arrangement of space with the outside entertaining area immediately adjacent to the house and the swimming pool beyond it means these are much more likely to be used recreationally than the grassed open space beyond both of these areas.

1. However, although a limited adverse impact, it is also a pointer to the poorness of the present design and its incorporation of what is clearly an unnecessary adverse impact on an adjoining property.

Conclusion

1. In his closing submissions, Mr Green described the proposal as being one which was based on a rational analysis of the site and having regard to the opportunities and the constraints attached to it. He submitted that I should conclude that what had been achieved, in effect, by the present design was something that was an appropriate response to the various design objectives called up by the SEPP and positively responded, functionally, to the matters set out in the Design Guidelines.
2. He also said, rhetorically, that if the design were to be reoriented so that the living areas and private open space were toward the street and bedrooms to the rear (effectively, in his submission, removing any living areas from enjoying the view to the Chatswood CBD skyline), a hypothetical purchaser visiting the site would walk in and say "The architect has gone mad!
3. This rhetorical position, effectively one setting up an all or nothing straw man and demolishing it, is not properly reflective of Mr Vescio's evidence as I understood both his written commentary in Exhibit 5 and his oral evidence. A correct understanding of his evidence, in my view, was that:

• the site had many positive attributes and that, on balance, these potentially outweighed any inherent disadvantages;
• the site was capable of accommodating a development for which consent was sought by an application made pursuant to the SEPP;
• the appropriate design response for such an application to be an acceptable one (whether protected by the "must not refuse" provisions of cl 50 of the SEPP or not) could, I inferred, potentially have the same general development yield as is sought by the present proposal;
• such a proposal would have its main living areas and principal private open space for most (if not all) of the development oriented toward the street so as to maximise solar access;
• an appropriately skilful design with this orientation could also achieve living space to the south able to enjoy the immediate district outlook and the Chatswood CBD skyline on the horizon. A secondary living area on the southern side of a redesigned proposal could also have a more modestly sized deck/balcony area attached to it in a fashion that would interact with neighbouring development in a more respectful fashion;
• such a redesigned development could also incorporate greater side setbacks so as not to place constraints on any future redevelopment of neighbouring properties, particularly 24 Kendall Road; and
• a proposal that was developed within this broad matrix was not likely to have unacceptable privacy impacts on the neighbouring properties and could, potentially, be readily acceptable as consistent with a project warranting being given approval under the SEPP.

1. Taking the position adopted by Mr Green on interpretation of the ousting provision in the SEPP at its highest, namely that:

• I should exclude consideration of any matters contained in either the LEP or the Council's Willoughby Development Control Plan 2006 (as, in his submission, the SEPP relevantly covered the field and cll 5 and 15 of the SEPP therefore acted to oust either of the local instruments); and
• I should treat the matters that are dealt with in the guidelines through a conceptual analysis analogous to that required by the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 to be applied to development control plans (namely that they should be the focus and starting point for my enquiry but that, in appropriate circumstances, departure was not unreasonable).

1. Even taking this submission, effectively, as the high point of permissiveness in favour of the applicant (as Mr Green proposes should inform my consideration of this development), I am unable to conclude that that which is proposed represents an appropriate and acceptable response to the site's opportunities.
2. Even taking a Zhang-like approach to the solar access provisions contained in the SEPP and in the Design Guidelines, such an approach might permit a modest degree of flexibility to accept departures, qualitatively or quantitatively, from what has been earlier set out.
3. However, as I have also earlier observed, the departures for this proposal are not minor ones. Indeed, the design approach that has been taken for this development, with its emphasis of orienting the main living areas and the principal private open spaces of the dwellings on the middle and upper levels toward the view to the south is not a modest departure from what is required to be considered in the SEPP and the guidelines but is antithetical to the solar access provisions. This design represents an almost complete rejection of the desired design ethos of orientation of dwelling aspects to maximise solar access.
4. I am not prepared to go as far as saying that the modest sunrooms that are only accessible through the master bedroom are mere design tokens. However, these elements cannot play any significant role in satisfying the broad solar access objectives necessary to be considered.
5. The terms of cl 31 (with respect to the Design Guidelines) and cl 35 (with respect to the design principles for solar access) in the SEPP do not mandate compliance, they require that they must be considered by me before I contemplate granting consent to this development. Having regard to those provisions, however, does not provide me with any basis to countenance a development that, in effect, not merely does not have regard to those objectives but is at fundamental variance with them.
6. For me to approve this development, in the face of its virtual complete non-compliance with these solar objectives would be more akin to the approach taken, in the first instance, in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 and adopting what, in effect, could only be seen as an entirely different standard, qualitatively and quantitatively, to that which would follow from the relevant provisions of the SEPP and the Design Guidelines.
7. By analogy, the Court of Appeal's approach in Botany Bay is equally apposite in these proceedings. To approve this development would, in practical effect, require me adopting the approach of rejecting that which is set out in the SEPP and the guidelines and substituting my own entirely different approach for determining acceptability. To do so, in my view, would constitute a fundamental error in how I should pay regard to the aspirations for solar access embodied in the SEPP and the guidelines.
8. I am satisfied that the analytic matrix that I have drawn from my understanding of the evidence given by Mr Vescio is the correct and appropriate one for consideration of development opportunities on this site. In doing so, I am mindful that my task is to assess the acceptability within the framework set by the SEPP rather than measuring the proposal against the yardstick of design nirvana.

Orders

1. It therefore follows that the orders of the Court are: 1. Having, during the course of the proceedings, twice granted leave to the applicant to rely on further amended plans and it being the agreed position of the parties that these further amendments were not minor, pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent's costs in the agreed sum of $1.00 (one dollar); 2. The appeal is dismissed; 3. Development Application 2013/544 for the demolition of the existing dwelling at 26 Kendall Road, Castle Cove, and the erection of a five apartment development pursuant to State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 is determined by the refusal of development consent; and 4. The exhibits, other than Exhibits 1, 10 and J, are returned. Tim Moore Senior Commissioner 10848 of 2014 - Moore orders - 24 June 2015 (69.8 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 June 2015