Commins v Leichhardt Council

The proposal 5The application the subject of these proceedings proposes alterations to the existing ground floor including the kitchen and laundry, and additions to the first floor above part of the existing ground floor at the rear of the building to provide an ensuite bathroom to the existing bedroom, create a study in the floor area of the existing second bedroom, and a new addition to provide a bathroom and a new second bedroom. 6The eastern side wall of the existing ground floor and proposed first floor addition is built to the eastern side boundary. The western side wall of the first floor addition is proposed to be setback 1.417m from the western side boundary. The relationship between the proposed development and that on the adjoining property at 100 Phillip Street is shown on the plan below:

Issues 7The issues between the parties are whether the impacts of the proposed development on solar access to 100 Phillip Street are such that an objection to the application of the applicable floor space ratio (FSR) development standard should not be upheld, and such that variation from the side setback, building location zone, and solar access controls should not be supported.

Planning controls 8The site is located within the Residential zone under the Leichhardt Local Environmental Plan 2000 (the LEP), and the proposed development is permissible with consent. 9Clause 19(2) of the LEP provides a maximum FSR of 0.7:1. The proposed development has a FSR of 0.98:1, and the applicant has provided an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) to the application of the development standard. 10Clause 19(3) of the LEP provides for a minimum landscaped area of 40 percent of site area, of which 25 percent must be soft landscaped area. The proposal provides a landscaped area of 24 percent. The applicant has accepted the imposition of a condition requiring provision of a minimum of 12 sq m of soft landscaping on the site to address the deficiency. 11The site is located within a Heritage Conservation Area and is in the vicinity of heritage items at 31 and 36 Cameron Street and 83, 85 and 87 Phillip Street under the LEP, and accordingly cl16(7) Development in the vicinity of Heritage items and cl 16(8) Development in Conservation Areas apply. The Council has raised no issues concerning heritage or streetscape. 12The Leichhardt Development Control Plan 2000 (the DCP) applies. The site is located within the Mort Bay Distinctive Neighbourhood. Part A 10.6.5 of the DCP provides the Desired Future Character guidelines for the Mort Bay Distinctive Neighbourhood, and Neighbourhood Controls supplementing the other controls in the DCP. 13Part B1.2 of the DCP provides Building Form, Envelope and Siting controls. The Principles include: Plan and design new housing, and additions and alterations to existing housing, to maintain and enhance the established scale and character of the streetscape. Match and complement existing building forms, private open space and landscaped areas. 14The Building Location Zone (BLZ) guidelines state: New development or an extension to an existing dwelling is to be located within the Building Location Zone (BLZ). This is a zone defined by the average front and rear setbacks of both the adjacent buildings on either side of the subject site. The BLZ is that part of the subject site where it can be reasonably expected that a building will be located (see below). This includes 2 storey development and first floor extensions to existing dwellings, however in most circumstances development above the first floor may not occupy the entire area of the BLZ, due to the resulting bulk and scale issues. ... Where it is proposed to build outside of the BLZ, the onus is upon the applicant to justify that the proposed building footprint is appropriate. Issues which must be addressed in justifying a building footprint extending outside of the BLZ include, but are not limited to: visual aspect of the bulk and scale, as viewed from adjoining properties; amenity to adjacent properties (ie sunlight, privacy, views); location and retention of existing significant vegetation; compliance with applicable statutory controls, including Floor Space Ratio and minimum landscaped area of 40% of the site; the existing streetscape and character and scale of surrounding development; and the adequacy of the size, dimensions, privacy and solar access of private open space for outdoor recreation and landscaping. 15The Side Setback guidelines state: Side setbacks Side setbacks for new development are to be of sufficient width, and designed such that the following issues are properly addressed to the satisfaction of Council: -The requirements of the Suburb Profiles;

• Ensure that the development is sympathetic to and respects the rhythm of the streetscape created by the lot width and side setbacks of adjoining development;
• Amenity concerns of adjoining properties, in particular solar access, visual privacy, noise transmission and air circulation;
• Existing external access to the rear of the property with a minimum width of 900mm is to be retained; and
• The retention and enhancement of views to significant and local landmarks and vistas from a public place through gaps created by existing side building setbacks. 16Minimum side setbacks are to be determined by siting development within a plane measured from a height of 2.4m above ground level along the side boundaries then projected at 45 degrees over the site. 17Part B3.1 addresses solar access, and states the following principles: Design to optimise solar access to habitable rooms and private open space of new housing to improve amenity and energy efficiency. Minimise overshadowing of the habitable rooms and private open space of existing housing. 18The controls provide: Design to ensure solar access for a minimum of 3 hours between 9.00 a.m. and 3.00 p.m. at the winter solstice, to the living areas of new dwellings. Maintain solar access to existing housing Where an existing adjacent building has an east - west orientation:
• Maintain solar access to the habitable side rooms for a minimum period of 2 hours between 9.00 a.m. and 3.00 p.m. at the winter solstice.
• Where less than 2 hours solar access is currently available to the habitable side rooms of existing dwellings, no additional overshadowing shall be permitted. Where an existing adjacent building has a north - south orientation:
• Maintain solar access to the front and rear habitable rooms for a minimum period of 4 hours between 9.00 a.m. and 3.00 p.m. at the winter solstice. Where solar access already exists to the private open space of adjacent dwellings, ensure it is maintained over a minimum of 50% of the private open space for a minimum period of 3 hours between 9.00 a.m. and 3.00 p.m. at the winter solstice.

Evidence 19The conciliation conference took place on site. Evidence was given on site by the owners of the adjoining property at 100 Phillip Street, and included a view from that property including the kitchen and dining room on the ground floor and the main bedroom and study on the first floor. 20The adjoining owners stated their concern to be about solar access. The windows of their house face north. The main light to the ground floor kitchen is in the morning, and they sit outside in the morning. The sunlight into the kitchen window first thing in the morning is important to them, and the sunlight into the dining room is important because in addition to providing light it provides warmth. They looked for two years to buy a two bedroom house that they could extend to three bedrooms, with this orientation. They were required to put skylights in for 98 Phillip Street as part of the approval for their extension. Their expectation when they bought the house was that 102 Phillip Street could not be developed and the planning controls would prevent them being built out. They had to comply with the controls, and it was only in relation to the FSR and building location zone that they did not comply. They did not expect that 102 Phillip Street would be able to breach the controls. 21Expert planning evidence was provided by Ms D Laidlaw on behalf of the Council and by Mr C Blyth on behalf of the applicant. Ms Laidlaw and Mr Blyth agreed that the FSR of the proposed development is 0.98:1, which is a 28.5 percent variation on the standard of 0.7:1, however they disagreed as to whether the SEPP 1 objection was well founded. Ms Laidlaw and Mr Blyth agreed that the alterations at ground floor are within the established BLZ, however they disagreed as to whether the first floor addition breaches the control, and if it does, whether any such non-compliance is acceptable. Ms Laidlaw and Mr Blyth agreed that the solar access controls of the DCP are difficult to apply to the site which is not clearly oriented north/south or east/west but is oriented generally north west to south east. They disagreed as to how the north/south or east/west controls would apply, and as to whether any overshadowing impact is reasonable or acceptable. Ms Laidlaw and Mr Blyth agreed that the proposed development breaches the side setback controls; that the existing first floor does not comply with those controls; that it would not be possible to achieve a first floor extension on the site in a manner that would comply; and that 100 Phillip Street does not comply with those controls. They disagreed as to whether the proposed development achieves the objectives of the side setback controls and whether it is appropriate to vary them.

Consideration 22The Council's Statement of Facts and Contentions included contentions that the SEPP 1 objection to compliance with the FSR development standard should not be upheld, and that the proposed development breaches the rear BLZ, solar access, and side setback, controls in the DCP. The Council further contended that the amenity impacts and sunlight access concerns raised by the owners of 100 Phillip Street warranted refusal of the application. At the hearing the Council's position was that the solar access impacts of the proposed development on 100 Phillip Street, in particular the kitchen window and the glazed dining room door, were the central issue in each of these contentions. 23The applicant submits that, applying the planning principle expressed in The Super Studio v Waverley Council (2004) 133 LGERA 363 at [5], that in assessing whether the impacts of the proposed development are reasonable, the reasonableness of the proposed development should be considered. The proposed development is for a second storey extension similar to the second storey extension on the adjoining property, and is smaller than that at 100 Phillip Street. Applying the planning principle in Pafburn v North Sydney Council [2005] NSWLEC 444, the reasonableness of the proposal and the vulnerability of the adjoining property are relevant; the proposed development exhibits good design as there is nowhere else on the site for the development to occur; and the owners of 100 Phillip Street could have no expectation that the development would comply with the planning regime because their extension did not comply with the FSR or building location zone controls, and the adverse impact of their development on 98 Phillip Street was only addressed by their provision of two skylights for 98 Phillip Street. The house at 100 Phillip Street is highly vulnerable because it is south west of the subject site, and because of the density of development and small lot sizes in the locality. Applying the planning principle in The Benevolent Society v Waverley Council [2010] NSWLEC 1082, the solar access to the kitchen window complies with the criterion of 3 hours, and the dining room doorway is highly vulnerable to being overshadowed because of its location. In relation to the FSR controls, it is a small site and the extra floor space is not unreasonable and still allows for 3 hours of sunlight to the kitchen; the dining room achieves solar access at 12noon, 1pm and 2pm, and the extension of the cantilevered upper level extension deprived them of solar access to that door at 3pm. The building location zone control applies to the setbacks of the building, not the upper level. In relation to the side setback control, it would be uncharacteristic of buildings in the locality for the site to comply, and in any event the overshadowing is not generated by the side setback. 24The Council submits that it is not possible to draw an analogy between 100 and 102 Phillip Street because the sites are different. A reasonable development on the site would be to provide two bedrooms and two bathrooms, with one bathroom on the ground floor; the proposed development is for two and a half bathrooms. Compliance with the planning controls includes meeting the criteria for variation of the controls, and 100 Phillip Street met the planning controls. The solar access controls in the DCP were designed with the circumstances in Leichhardt local government area in mind. Because of its size and timber frame the dining room door requires that a greater proportion of it be in sunlight. 25The evidence before the Court includes shadow diagrams for the east and north elevations of 100 Phillip Street for the development as proposed (exhibit B); the development with a 700mm setback from the rear (exhibit D); and the development with a 1100mm setback from the rear (exhibit H). The experts agreed that the shadow diagrams were an accurate indication of solar access impacts, subject to a minor variation in the levels and the positioning of the dining room door as shown which did not affect their evidence as to impacts. In their oral evidence Ms Laidlaw and Mr Blyth addressed the overshadowing impacts of the proposal based on these diagrams and on their observations from the view. 26It was common ground that the kitchen window of 100 Phillip Street is approximately 2m wide and 1.5m high. Ms Laidlaw and Mr Blyth agreed that the proposed development would overshadow this window at 9am on June 22; that at 10am approximately two thirds would be in shadow, and that by 11am nearly all would be in sunlight. From 12noon onwards the first floor extension of 100 Phillip Street would overshadow that window. It was agreed that at 9am, 10am and 11am the proposed development would, in addition to the existing overshadowing, overshadow the dining room door. At 12noon there would be sunlight to part of the dining room door; and no overshadowing at 1pm or thereafter. Ms Laidlaw's evidence was that the dining room door is the only opening with direct solar access into the living space of 100 Phillip Street, and that while sunlight does not directly penetrate the room, there was still a beneficial effect. The orientation is not true north and the angle of the sunlight at 9am is approximately 22 degrees. Ms Laidlaw agreed that there would be sunlight to approximately 50 percent of the door for approximately 2 hours. Ms Laidlaw accepted that the amenity of the dining room was enhanced by the skylight above the stairs, and by borrowed light from the adjoining kitchen. 27In assessing the solar access impacts in accordance with the provisions of the DCP, Part B3.1 distinguishes between dwellings with an east/west orientation, where solar access is to be maintained to the habitable side rooms for a minimum period of 2 hours between 9am and 3pm at the winter solstice, and dwellings with a north/south orientation, where solar access is to be maintained to the front and rear habitable rooms for a minimum period of 4 hours between 9am and 3pm. In its initial assessment of the application the Council applied the north/south control as the site is closer to a north/south orientation. Mr Blyth was of the opinion that the generally northwest/southeast orientation of the site (and 100 Phillip Street) means that it is appropriate to maintain 3 hours of solar access between 9am and 3pm during the winter solstice. Ms Laidlaw agreed in oral evidence that in the circumstances slightly less than 4 hours would be appropriate to a reasonable proportion of windows; the Council had assessed 3 hours as appropriate in its assessment of the development application for 32 Cameron Street, and somewhere between 3 to 3 hours would be reasonable. 28While I accept that the site is not directly northwest/southeast in orientation I am satisfied that an appropriate numerical guide to adopt is that adopted by Mr Blyth, namely to maintain solar access for 3 hours during the winter solstice, and not the 2 hours for east/west or 4 hours for north/south orientations. The DCP distinguishes between habitable side rooms and front and rear living rooms. In the circumstances of this case, the relevant windows of 100 Phillip Street are the side kitchen window and the dining room door. There is solar access to the side kitchen window for more than 3 hours between 9am and 3pm over at least part of its surface; and solar access to at least part of the surface of the dining room door for approximately 2 hours and 40 minutes. 29The provisions of the DCP are a fundamental element and a focal point of the decision-making process; however, they are not determinative: Zhang v Canterbury City Council (2001) 115 LGERA 373. The experts agreed that the DCP control was not the most helpful guide in assessing the reasonableness of impacts on solar access due to the orientation of the lots and the configuration of the dwellings. In undertaking that assessment, the approaches outlined in the planning principles set out in Pafburn and Benevolent Society are of assistance. 30In Pafburn , the former Senior Commissioner said: 26 The following questions are relevant to the assessment of impacts on neighbouring properties: How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained? How necessary and/or reasonable is the proposal causing the impact? How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours? Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal? 31In Benevolent Society Moore SC said: Where guidelines dealing with the hours of sunlight on a window or open space leave open the question what proportion of the window or open space should be in sunlight, and whether the sunlight should be measured at floor, table or a standing person's eye level, assessment of the adequacy of solar access should be undertaken with the following principles in mind, where relevant:

• The ease with which sunlight access can be protected is inversely proportional to the density of development. At low densities, there is a reasonable expectation that a dwelling and some of its open space will retain its existing sunlight. (However, even at low densities there are sites and buildings that are highly vulnerable to being overshadowed.) At higher densities sunlight is harder to protect and the claim to retain it is not as strong.
• The amount of sunlight lost should be taken into account, as well as the amount of sunlight retained.
• Overshadowing arising out of poor design is not acceptable, even if it satisfies numerical guidelines. The poor quality of a proposal's design may be demonstrated by a more sensitive design that achieves the same amenity without substantial additional cost, while reducing the impact on neighbours.
• For a window, door or glass wall to be assessed as being in sunlight, regard should be had not only to the proportion of the glazed area in sunlight but also to the size of the glazed area itself. Strict mathematical formulae are not always an appropriate measure of solar amenity. For larger glazed areas, adequate solar amenity in the built space behind may be achieved by the sun falling on comparatively modest portions of the glazed area.
• For private open space to be assessed as receiving adequate sunlight, regard should be had of the size of the open space and the amount of it receiving sunlight. Self-evidently, the smaller the open space, the greater the proportion of it requiring sunlight for it to have adequate solar amenity. A useable strip adjoining the living area in sunlight usually provides better solar amenity, depending on the size of the space. The amount of sunlight on private open space should ordinarily be measured at ground level but regard should be had to the size of the space as, in a smaller private open space, sunlight falling on seated residents may be adequate.
• Overshadowing by fences, roof overhangs and changes in level should be taken into consideration. Overshadowing by vegetation should be ignored, except that vegetation may be taken into account in a qualitative way, in particular dense hedges that appear like a solid fence.
• In areas undergoing change, the impact on what is likely to be built on adjoining sites should be considered as well as the existing development. 32The subject site is small, and the experts were in agreement that the density of development in the locality makes it more difficult to achieve the DCP requirements, in particular maintaining solar access to side windows. The difficulties in achieving the solar access provided in the DCP is demonstrated by the need for the owners of 100 Phillip Street to provide two skylights for 98 Phillip Street in order for the solar access impacts of their development to be assessed as acceptable. I accept that the design of the proposed first floor extension for 102 Phillip Street mirrors that of 100 Phillip Street, while being smaller; however, the orientation of the two properties means that a direct comparison is not possible. The overshadowing of the kitchen window after 12noon and of the dining room door after 2pm from the cantilevered first floor extension of 100 Phillip Street make it more difficult to achieve solar access across the time period specified in the DCP, being 9am to 3pm. While I accept, based on the expert evidence, that the location and orientation of the dining room door at 100 Phillip Street make it difficult to maintain solar access, it is relevant to an assessment of the impact that the dining room is the only habitable room facing the rear of 100 Phillip Street and the door is the only source of direct sunlight to that room. In considering the planning principle in Benevolent Society , I agree with Mr Blyth that the glazed area of the kitchen window is large, and that adequate solar amenity in the kitchen can be achieved by the sun falling on less than the total area of that window. The size of the glazed area of the dining room door, in the context of its location, should also be considered in an assessment of whether the solar amenity in the dining room area can be achieved. I agree with Ms Laidlaw's assessment of the impact of the proposed development on solar access to this room and to the kitchen as being significant. I accept that the size of the site and the configuration of the existing dwelling mean that the proposed extension could not be located otherwise than as proposed. I accept that it is reasonable for the owner of the subject site to extend the dwelling to provide additional accommodation. On consideration of all those factors, I am of the view that the impact of the proposed development on solar access to 100 Phillip Street is such that it is not appropriate to depart from the DCP control as modified to apply to the site and its orientation, to achieve solar access to those two windows for at least three hours during the winter solstice. 33The evidence of the planning experts was that if the proposed first floor extension were set back a further 700mm from the rear, there would be some additional sunlight to the kitchen window at 9am; at 10am approximately two thirds would be in sunlight; and by 11am all would be in sunlight. Ms Laidlaw's evidence was that with that modification at approximately 11.45am 50 percent of the dining room door would be in sunlight, and by 12noon there would be no overshadowing. Ms Laidlaw's evidence was that any additional setback would improve amenity. However, based on the shadow diagrams a further setback in the order of 1100mm would not achieve a significant increase, Ms Laidlaw being of the opinion that there would be sunlight on the dining room door approximately 10 to 15 minutes earlier, and some additional sunlight to the kitchen window at 9am and 10am. The plans provided in exhibit D indicate that a setback of 700mm would still enable the applicant to achieve an additional bedroom of good dimensions on the first floor; a further setback would unacceptably reduce the size of that bedroom. 34A setback of 700mm would enable solar access to part of the kitchen window at 9am, two thirds of the window at 10am, and all of the window at 11am. It would enable solar access to 50 percent of the dining room window by 11.45am and full solar access at 12noon and 1pm. In my view, having regard to the orientation and size of those windows in the context of the respective sites and existing development, that would achieve the objective of Part B3.1 of the DCP of minimising overshadowing habitable rooms. 35It was common ground that the proposed development does not comply with the side setback controls. The agreed expert evidence was that it is not possible to achieve a first floor extension on the site in a manner that would comply with the side setback controls, and that neither the existing first floor, nor the dwelling on 100 Phillip Street, comply with the side setback controls. Ms Laidlaw's evidence was that the fact that the proposed development varies the control is less relevant than the question of whether the variation is justified when considered against the criteria in Part B1.2 of the DCP, and in her opinion the amenity impacts on the neighbouring property including solar access must be addressed. I agree with Mr Blyth that the side setbacks as proposed are consistent with development in the locality, including at 100 Phillip Street, and accept that subject to addressing the amenity impacts identified in the DCP, the breach of the numerical requirements would not be a basis for refusal. A further 700mm setback at the rear of the proposed first floor extension would not affect the breach of the side setback controls. 36The experts agreed that the proposed alterations to the existing ground floor are within the established BLZ and do not raise issues of concern. The experts disagreed on how to apply the BLZ controls in the DCP to the proposed first floor extension. Ms Laidlaw's opinion was that the DCP was ambiguously worded, however the Council's approach is to determine the rear setbacks as they apply to each floor. Applying those controls by reference to the approved, but not constructed, dwelling at 32 Cameron Street on the eastern side, and to the first floor extension of 100 Phillip Street on the western side, there was a breach of 1m. Mr Blyth was of the opinion that the DCP is not ambiguous, and that there is not a separate BLZ for each floor. The BLZ for the subject site is already determined by the existing house footprint and the appropriateness of any addition within that BLZ should be determined by any amenity impact that might be caused. While in my view a plain reading of the words of the DCP would support Mr Blyth's interpretation, it is not necessary to decide which interpretation of the DCP is correct. Based on the calculations in the joint report, if Mr Blyth's interpretation is correct, there is no breach of the BLZ guideline for the development as proposed. If Ms Laidlaw's interpretation is correct and the proposed development exceeds the BLZ by 1m, a reduction of the extension by 700mm in order to achieve acceptable solar access impacts would mean that any breach would be minimal, and acceptable in the context of the matters to be addressed in the BLZ guidelines. 37An additional 700mm setback from the rear would reduce the FSR of the proposed development. The Council's position at hearing was that if the solar access impacts of the proposed development were considered to be acceptable, the objective of the development standard in cl19(2) of the LEP would be met and the SEPP 1 objection could be upheld. Ms Laidlaw's evidence was that the control of bulk and its attendant impacts including overshadowing is a fundamental objective of the FSR control and in this case there are adverse impacts arising from bulk and overshadowing. Mr Blyth's evidence was that breaches of the FSR control in Birchgrove are common and not unexpected given the small size of the site. Subject to a setback of the proposed development by 700mm in order to achieve acceptable solar access impacts, I agree with Mr Blyth that the proposed development would meet the objectives of the FSR development standard and it would be appropriate to uphold the objection so that development consent could be granted. I note that the SEPP 1 objection accompanying the development application was prepared on the basis of FSR of 0.98:1, a 28.5 percent variation on the standard of 0.7:1.

Conclusion 38I am satisfied that subject to a further 700mm setback of the proposed first floor extension from the rear of the site, and subject to amendment of the SEPP 1 objection to reflect the consequent reduction in FSR, the SEPP 1 objection can be upheld and the proposed development approved subject to conditions. The parties agreed at the hearing that the applicant would accept a condition requiring the provision of a minimum of 12 sqm of soft landscaping on the site, and that the Council's proposed condition requiring a dilapidation report for 32 Cameron Street would not be required. 39The applicant is to provide an amended SEPP 1 objection and the parties are to provide amended conditions of consent including a condition requiring an amendment to the plans to incorporate an additional 700mm rear setback, and the further amendments to the Council's draft conditions of consent noted above, by 4 May 2011, following which orders will be made in chambers. Linda Pearson Commissioner of the Court 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: 02 May 2011