Dunnachie v Northern Beaches Council

The Site

1. The site is a regular, rectangular shape, fronting to Stuart Street for 12.19m, which forms the north-eastern boundary. The total area of the site is 494.7m² and has a depth of 40.58m.
2. The site slopes steeply towards the east, with exposed rock outcrops. An existing two storey brick building (currently used as a boarding house) is located towards the centre and front of the site, with a landscaped rear yard.
3. Surrounding the site, and specifically along Stuart Street are single, two and three storey residential dwellings and residential flat buildings (RFB) of a variety of material and designs. The properties on the eastern side of Stuart Street have balconies at the frontage, facing towards the west and the water view. On the western side of the street, where the site is located, the balconies and private open spaces are typically at the rear of the site.

Relevant Planning Controls

1. The jurisdictional requirements of s 4.15(1) of the EPA Act, described below, are relevant for the Court's consideration to grant consent to the DSA under appeal: 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
2. The proposed development is a boarding house and therefore subject to the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The provision in contention, that the Court must be satisfied to grant consent, relates to cl 30A of the SEPP ARH, as described below: 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
3. The parties agree that all other standards of the SEPP ARH are complied with based on the design of the proposed development, as shown in plans and documents supporting the DA under appeal.
4. The site is located within the R1 General Residential Zone (R1 zone), as described in the Manly Local Environmental Plan 2013 (MLEP). Pursuant to cl 2.3 of the MLEP, the proposed development is permissible and satisfies the objectives of the R1 zone, provided below: Zone R1 General Residential 1 Objectives of zone • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents
5. The parties agree that the proposed development complies with all the relevant numeric development standards of the MLEP.
6. The issues that were raised to originally refuse the development, and which relate to cll 6.2 (earthworks), 6.4 (stormwater), 6.5 (terrestrial biodiversity), 6.8 (landslide risk), and 6.12 (essential services) of the MLEP, are agreed as resolved to the satisfaction of the Council by the provision of additional information that now supports the DA under appeal and the agreed conditions of consent.
7. The Manly Development Control Plan 2013 (MDCP) is relevant for the Court's consideration in assessing the contentions that relate to the proposed development under appeal. The parties draw the Court's attention specifically to the objectives and controls in the following clauses of the MDCP: clause 3.1 and 3.1.1, streetscape; clause 3.4.1, sunlight access and overshadowing; clause 4.1.4, setbacks and building separation; and clause 4.1.4.4, rear setbacks.

Is the proposed development consistent with the streetscape and compatible with character of local area?

1. The Council contends that the proposed design of the boarding house is not consistent with the existing streetscape, nor compatible with the character of the local area, because of the proposed reduced front setback to Stuart Street. Council considers that the verticality in the front facade of the proposed building is not sufficiently setback in line with other similar vertical façade frontages on adjoining properties. In particular, Council contends that the proposed first floor level with a front setback of 3.52 m, has inconsistent spatial proportions to the street.
2. As a result, Council considers that the proposed development is not consistent with the streetscape of (both sides of) Stuart Street or within the visual catchment around the site. Therefore, it does not comply with the requirements of cl 30A of the SEPP ARH, with regards to compatibility with the local area.
3. Based on the evidence of the experts, onsite view and visual catchment video (Exhibit L), we accept that the visual catchment, as described in the MDCP, equates to the local area, as required to be assessed in cl 30A of the SEPP ARH. We agree with the experts, that the visual catchment and streetscape is defined along both sides of Stuart Street, as shown in Exhibits E and L.
4. We accept the expert evidence that the elements of height, materials, and landscaping, which typically characterise a streetscape and the local area, are for the proposed development, consistent with the requirements described in the MLEP and MDCP. We find that there is a diverse range of styles and appearances of buildings, and front setbacks along both sides of the street.
5. The issue with regards to character that remains before the Court is whether the proposed (front) setback to Stuart Street, proposed at 3.52m in a vertical presentation, is characteristic in the streetscape and visual catchment, therefore the local area, as required in cl 30A of the SEPP ARH.
6. The experts agree that the controls established in clauses 3.1, 3.1.1 and 4.1.4 of the MDCP should guide the Court in its assessment of the proposed development's consistency with the streetscape and compatibility with the local area character.
7. The MDCP defines 'streetscape' broadly in clause 3.1.1 as the 'interrelationship between buildings, landscapes and open spaces in the street scenes', and specifically in the dictionary as: "streetscape means the spatial arrangement and appearance of built and natural elements (in the private and public domain) within a street, which create the character of that street. Such elements include the appearance of positively contributing building forms and styles, vistas, road, driveway and footpath surfaces, street trees, other vegetation, fences, walls, street furniture, utility services and traffic devices."
8. The objectives and requirements of clauses 3.1, 3.1.1.1, 4.1.4 and 4.1.4.1 of the MDCP that are relevant for the Courts consideration in this appeal are described below: "3.1 Streetscapes and Townscapes Relevant DCP objectives to be met include the following: Streetscape Objective 1) To minimise any negative visual impact of walls, fences and carparking on the street frontage. Objective 2) To ensure development generally viewed from the street complements the identified streetscape. ... Townscape .. Objective 5) To assist in maintaining the character of the locality. …. 3.1.1.1 Complementary Design and Visual Improvement a) Development in the streetscape (including buildings, fences and landscaping) should be designed to: i) complement the predominant building form, distinct building character, building material and finishes and architectural style in the locality; ii) ensure the bulk and design of development does not detract from the scenic amenity of the area (see also paragraph 3.4 Amenity) when viewed from surrounding public and private land; iii) maintain building heights at a compatible scale with adjacent development particularly at the street frontage and building alignment, whilst also having regard to the LEP height standard and the controls of this plan concerning wall and roof height and the number of storeys; .. vi) visually improve existing streetscapes through innovative design solutions; and vii) incorporate building materials and finishes complementing those dominant in the locality. The use of plantation and/or recycled timbers in construction and finishes is encouraged. See also paragraph 3.5.7 Building Construction and Design. …. Setback Principles in Higher Density Areas c) In higher density areas (including LEP Zones R1 & R3), careful consideration should be given to minimising any loss of sunlight, privacy and views of neighbours. This is especially relevant in the design of new residential flat buildings adjacent to smaller developments. See also paragraph 3.4 Amenity. … 4.1.4 Setbacks (front, side and rear) and Building Separation Note: This section addresses the buildings' setback from its various property boundaries. Relevant DCP objectives to be met in relation to this part include: Objective 1) To maintain and enhance the existing streetscape including the desired spatial proportions of the street, the street edge and the landscape character of the street. Objective 2) To ensure and enhance local amenity by: providing privacy; providing equitable access to light, sunshine and air movement; and facilitating view sharing and maintaining adequate space between buildings to limit impacts on views and vistas from private and public spaces. defining and adding character to the streetscape including the provision of adequate space between buildings to create a rhythm or pattern of spaces; and ... …. 4.1.4.1 Street Front setbacks .. a) Street Front setbacks must relate to the front building line of neighbouring properties and the prevailing building lines in the immediate vicinity. b) Where the street front building lines of neighbouring properties are variable and there is no prevailing building line in the immediate vicinity i.e. where building lines are neither consistent nor established, a minimum 6m front setback generally applies. This street setback may also need to be set further back for all or part of the front building façade to retain significant trees and to maintain and enhance the streetscape. c) Where the streetscape character is predominantly single storey building at the street frontage, the street setback is to be increased for any proposed upper floor level. See also paragraph 4.1.7.1. d) Projections into the front setback may be accepted for unenclosed balconies, roof eaves, sunhoods, chimneys, meter boxes and the like, where no adverse impact on the streetscape or adjoining properties is demonstrated to Council's satisfaction. Note: Reference to 'prevailing building lines' in this paragraph means the building lines determined in undertaking the context and site analysis required to accompany all DAs (see Council's Administrative Guidelines) including, in this case, demonstrated survey of all building lines and street frontages in the vicinity i.e. the visual catchment along the street."
9. Setting aside the issues related to solar access amenity for the rear of the proposed development, which are addressed later in this judgement, clause 4.1.4 of the MDCP provides relevant objectives for the Court's consideration which assist in assessing the proposed development's compatibility with streetscape and the future, desired character of the local area.
10. We are satisfied that the agreed relevant objectives (1 and 2) of clause 4.1.4 of the MDCP are achieved by the proposed development.
11. In considering clause 4.1.4, Objective 1 of the MDCP, it is noted that from a streetscape perspective, the building maintains the spatial proportions established by adjacent buildings including the building directly adjacent at 24 Stuart Street, through a consistent approach to height, number of storeys, width and side setbacks. The 'street edge' is formed by a series of detached buildings with variable building setbacks and heights, and landscape setbacks of varying depth and treatment. Established buildings at 12 and 16 Stuart Street form a street wall with the building edge, and buildings to the south of the site and on the eastern side of Stuart Street, utilise a variety of walls, fences, paving and landscape treatment to diversify this street edge.
12. On the site, the proposed building setback enables a planted edge that includes shrubs and a tree, and a driveway for basement access. This is consistent with the variable street edge and landscape character of the street, and therefore satisfies Objective 1 of clause 4.1.4 of the MDCP.
13. In relation to clause 4.1.4 Objective 2, we accept the evidence of the experts that the proposed front setback will not result in adverse impact on privacy, view or amenity to adjoining properties. We find this will define/add to the streetscape through the design, provision of adequate space between buildings, following an existing rhythm and pattern of space. The proposed development therefore satisfies the requirements of this objective.
14. The experts agree, and we accept that the proposed building height, side setbacks, materials, landscaping and design are consistent with the streetscape and not incompatible with the local area. It is also agreed that there are no adverse amenity impacts to adjoining properties as a result of the proposed front setback.
15. To support this assessment, clause 4.1.4.1 of the MDCP describes the requirements for street front setbacks, which relate to streetscape character. We are satisfied that control (a) of clause 4.1.4.1 is achieved by the proposed development. Both experts accept that the proposed ground level (front) setback adequately meets the requirement, as identified by Exhibit E.
16. With regards to the proposed first-floor level setback, we prefer Mr Minto's assessment that the first-floor element and setback is characteristic of the streetscape. He refers to Exhibit 3, that highlights a repeated pattern of vertical articulation to the adjoining buildings. We do not accept Mr Prosser's assessment that greater weight should be given to the two dwellings to the south of the site, which he says provide greater articulation and front setback, and that the adjoining RFB is an aberration within the streetscape that should not be considered. We observed that the buildings adjoining north and south of the site, present with a vertical façade, variable setback, limited articulation and negligible front setback landscaping. We agree that number 24 Stuart Street in particular, has a vertical façade, which will appear consistent with what is proposed on the site.
17. The experts agree that there is no prevailing building line or established front setback in the streetscape, although dispute whether it is reasonable to rely primarily on the setback to adjoining properties of 24 and 26 Stuart Street or to average the front setback. They also agree that clause 4.1.4.1(b) of the MDCP, which establishes a minimum 6m front setback where a prevailing building line is not established, should not be strictly applied to this development as it would be out of character for the streetscape, with front setbacks generally between 0.6m and 4.9m on the western (site) side of Stuart Street, with the eastern side of Stuart Street, having larger setbacks of between 3m to 10.1m. As shown in Exhibit E, we accept that a 6m front setback on the site would appear uncharacteristic in the streetscape and visual catchment.
18. For this site, to address clause 4.1.4.1, Mr Minto considers that the proposed development could reasonably adopt an average setback between the adjoining two properties (north and south), which he defines as 2.92m. He notes that the proposed development is designed with a minimum front setback of 3.5m, which he considers is reasonable within its setting and that a further setback of the first floor level is not required to attain consistency in this streetscape. He observes that the adjoining property at 24 Stuart Street has minimal landscaping in the front setback due to the hard surface for parking, which is contrary to the MDCP requirements, and that the proposed development provides sufficient deep soil in the front setback for tree planting. Thereby, softening the effect of any perceived verticality of the building.
19. In the alternative, Mr Prosser considers that the adjoining residential flat building (RFB) to the north of the site does not provide a reasonable basis for reference, and that the front setback should relate directly to the adjoining properties at 24 and 26 Stuart Street, and also to the eastern side of Stuart Street. He establishes a front setback should be in the order of 4.5m. Mr Prosser agrees that a smaller (ground floor) front setback (as proposed) is reasonable, provided there is a greater setback on the first floor, thereby reducing the verticality of the front facade of the proposed building. This, he considers would provide a better presentation to the streetscape, particularly as the proposed deep soil landscaping in the front setback will not sufficiently soften the verticality of the proposed façade.
20. With regards to clause 4.1.4(b) of the MDCP, we accept that there is no prevailing building line in the immediate vicinity of the site, which the Court considers extends beyond 24 and 26 Stuart Street, and that a 6m front setback is not characteristic for this site, in the streetscape.
21. The advisory note in clause 4.1.4.1 of the MDCP defines 'prevailing building lines' as the building lines determined through context and site analysis, including a survey of all building lines and street frontages within the visual catchment. We accept that Exhibit E demonstrates there is an inconsistent building line within this catchment. It is noted that Exhibit E only measures the ground level setbacks, however from visual analysis on site and further submission by the applicant, we accept that both ground and upper-level setbacks in the immediate vicinity are highly variable. We therefore consider that the proposed development adequately reflects the prevailing building lines of the immediate vicinity. Furthermore, the inclusion of a portion of the façade without any upper-level setback is not inconsistent with adjoining buildings. The scale of the vertical element is proportional to adjacent buildings, and therefore is consistent with the streetscape character. Clause 4.1.4.1(b) is therefore satisfied.
22. Clause 4.1.4.1(c) of the MDCP, which describes an increased setback for any proposed upper floor level, only applies where the streetscape character is predominantly single storey. The experts and the Court agree that the streetscape character is defined by buildings that vary between one and four storeys. Therefore, clause 4.1.4.1(c) is not applicable to the proposed development.
23. The experts and Court agree that clause 4.1.4(d) of the MDCP is not relevant to the proposed development. The proposed development does not project any structures, as described, forward of the building line.
24. In relation to the relevant objectives (1, 2 and 5) of clause 3.1 of the MDCP, we are satisfied that these objectives are achieved by the proposed development. We accept that the proposed development does not propose any walls, fences or parking in the front setback, and negative visual impact on the street frontage is minimised (objective one). This is further achieved by the presentation of a deep soil and planted front setback, which we agree could assist to soften the building in the streetscape. The proposed building scale and articulation, and the inclusion of a tree in the front setback facilitates the development generally being viewed as complimentary to the streetscape and assists in maintaining the established/desired future character of the locality (objectives 2 and 5). The proposed development does not rely on the front setback deep soil landscaping to achieve the objectives, however the landscaping does assist.
25. In assessment of the objectives of clause 3.1 of the MDCP, we are also satisfied that the relevant requirements of clauses 3.1.1 and 3.1.1.1 that support these objectives are achieved by the proposed development. We consider that the proposed development recognises and positively contributes to the predominant streetscape qualities and visual catchment, through height, building form, scale, patterns, materials, colours and landscaping, which is compatible with the character of the local area. The relevant objectives of clause 3.1 are achieved by the proposed development.
26. We are satisfied that the proposed development, based on its design, landscaping and siting within the lot, is consistent with the objectives for this (R1) zone, as established in cl 2.3 of the MLEP.
27. In assessment of all the evidence before the Court and based on observations from the site visit at the start of the hearing, we are satisfied that the proposed development is compatible with the character of the local area, and therefore achieves cl 30A of the SEPP ARH. As assessed above, the proposed development achieves all relevant objectives and controls of the MDCP. The proposed development is consistent with the streetscape and compatible with character of local area.

Does the proposed development cause unreasonable adverse amenity impact to adjoining properties?

1. Council contends that the proposed development will have adverse amenity impact, due to loss of solar access to the adjoining property at 24 Stuart Street, and specifically the dwelling at 1/24 Stuart Street. According to Council, there is insufficient rear setback and a lack of appropriate modulation of the proposed building form on the site, which results in a loss of existing solar access to the living areas of the adjoining southern dwelling.
2. The experts accept that solar access amenity is demonstrated through a series of shadow diagrams (Exhibit A), produced for both the winter solstice (21 June) and the equinox (21 March/September). In addition, they accept the equinox solar access video in Exhibit K, showing the rear living area of the dwelling at 1/24 Stuart Street.
3. The experts agree that there is no issue regarding solar access to the proposed development, as assessed under the provisions of the SEPP ARH, or to the private open space or habitable rooms, other than living areas at 1/24 Stuart Street, of the adjoining dwellings, as assessed under the provisions of the MDCP.
4. With respect to assessing the sufficiency of solar access (amenity) to the living rooms of adjoining dwellings, the issue relates primarily to the dwelling at 1/24 Stuart Street. The experts agree and we accept that there is no breach of the relevant objectives and controls of the MDCP, and therefore no adverse solar access impact with respect to 2/24 Stuart Street. Therefore, the issue relating to solar access raised by the resident at this property is resolved.
5. The experts also agree, and we are satisfied, that there are no adverse privacy, acoustic or other amenity impacts to the adjoining properties resulting from the proposed development, and there is no breach of the relevant provisions of the MDCP.
6. The experts refer to clauses 3.4.1, 3.4.1.2 and 4.1.4.4 of MDCP, which they explain protects adjoining properties from potential adverse amenity impacts, and as specifically contended in this appeal from loss of solar access, as described below: "3.4.1 Sunlight Access and Overshadowing … Relevant DCP objectives to be met in relation to this part include the following: Objective 1) To provide equitable access to light and sunshine. Objective 2) To allow adequate sunlight to penetrate: • private open spaces within the development site; and • private open spaces and windows to the living spaces/ habitable rooms of both the development and the adjoining properties. Objective 3) To maximise the penetration of sunlight including mid-winter sunlight to the windows, living rooms and to principal outdoor areas by: • encouraging modulation of building bulk to facilitate sunlight penetration into the development site and adjacent properties; and • maximising setbacks on the southern side of developments to encourage solar penetration into properties to the south. Note: The winter solstice on the 21st June is the most critical time to assess solar access. On this date, the sun's altitude of 30 degrees will cause shadows 3 times as long as the height of the object. … 3.4.1.2 Maintaining Solar Access into Living Rooms of Adjacent Properties In relation to sunlight to the windows or glazed doors to living rooms of adjacent properties: a) for adjacent buildings with an east-west orientation, the level of solar access presently enjoyed must be maintained to windows or glazed doors to living rooms for a period of at least 2 hours from 9am to 3pm on the winter solstice (21 June); b) for adjacent buildings with 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 4 hours from 9am to 3pm on the winter solstice (21 June); c) for all adjacent buildings (with either orientation) no reduction in solar access is permitted to any window where existing windows enjoy less than the minimum number of sunlight hours specified above. … 4.1.4.4 Rear Setbacks a) The distance between any part of a building and the rear boundary must not be less than 8m. b) Rear setbacks must allow space for planting of vegetation, including trees, other landscape works and private and/or common open space. The character of existing natural vegetated settings is to be maintained. See also paragraph 3.3 Landscaping. c) On sloping sites, particularly where new development is uphill and in sensitive foreshore locations, consideration must be given to the likely impacts of overshadowing, visual privacy and view loss. d) Rear setbacks must relate to the prevailing pattern of setbacks in the immediate vicinity to minimise overshadowing, visual privacy and view loss."
7. The requirements of clause 3.1.1(c) of the MDCP, which relates to setbacks for development in an R1 zone, is also relevant for the Courts consideration. In addition, Objective 1 in clause 3.4 of the MDCP is relevant for the Courts consideration.
8. Both experts agree, and we accept, that the proposed development complies with the requirements of clause 3.4.1.1(a) of the MDCP, and therefore (b) is not relevant for further consideration in this appeal.
9. The primary issue between the experts is whether assessment of solar access in clause 3.4.1.2 of the MDCP relates to the equinox. Both parties agree and we accept that this clause applies solely to the assessment of living rooms, and does not apply to any other habitable rooms.
10. The experts agree and we accept that the proposed development is oriented east-west and achieves the requirements of clause 3.4.1.2(a) of the MDCP. The windows and glazed doors to the living room of 1/24 Stuart Street currently receives no solar access between 9am and 3pm on the winter solstice (21 June). This is not changed by the proposed development, therefore, the existing level of solar access in dwellings at 24 Stuart Street is 'maintained'.
11. The experts agree and we accept, that clause 3.4.1.2(b) of the MDCP is not relevant for assessment of the proposed development, because the site is not oriented north-south.
12. With respect to clause 3.4.1.2(c) of the MDCP, Mr Prosser understands that this clause requires that there is no reduction of solar access to any (living room) window, at any time, where existing windows enjoy less than the minimum number of sunlight hours, which as specified in clause 3.4.1.2(a) is two hours. He states that, as the living room windows at 1/24 Stuart Street do not currently enjoy any sunlight hours between 9am and 3pm on the winter solstice, no further reduction of solar access to these windows should be permitted at any other time of the year. Critically, clause 3.4.1.2(c) does not refer to a particular date, and therefore he states both the solstice and equinox should be considered in the Court's assessment.
13. Mr Prosser refers to the applicants' shadow diagrams generated for the equinox (21 March/September), which he says illustrates an additional shadow cast over one living room window. He therefore concludes, that there is a breach in the requirement of clause 3.4.1.2(c) for 'no reduction of solar access…to any window', and that the impact of the proposed development on the amenity of 1/24 Stuart Street is unacceptable.
14. Mr Prosser contends that this solar access non-compliance is the result of an unacceptable rear setback to the building and insufficient modulation to the central form of the proposed building. He refers to clause 4.1.4.4(a) of the MDCP, which he says requires a rear setback of no less than 8m, and at (c) requires that rear setbacks must relate to the prevailing pattern of setbacks in the immediate vicinity to minimise overshadowing, visual privacy and view loss.
15. In evidence, Mr Prosser stated that a prevailing rear setback (pattern) is currently established through the relatively consistent rear setbacks of buildings at 16, 22, 24 and 26 Stuart Street. He understands that a relationship to the prevailing pattern could be formed by applying a greater setback than proposed, similar to the averaging method applied to the front setback. Mr Prosser stated that the rear setback should be informed by the solar non-compliance to ensure no adverse amenity impacts on adjoining properties.
16. Mr Minto contends that even by adopting Mr Prosser's interpretation of clause 3.4.1.2(c) of the MDCP, the evidence provided in Exhibit K, a computer-generated animation of the solar access to the living room windows of 1/24 Stuart Street on the equinox, shows no adverse solar access to 1/24 Stuart Street. He says the video, in Exhibit K demonstrates that on the equinox, both living room windows at 1/24 Stuart Street receive direct sunlight between 11am and 1:15pm. Mr Minto therefore concludes that the living room windows of 1/24 Stuart Street will 'enjoy' the minimum number of hours specified in clause 3.4.1.2(a) on the equinox, which is 2 hours between 9am and 3pm. Further to this, he states that the reduction of sunlight at 3pm, illustrated on drawing DA31 of Exhibit A, does not demonstrate a non-compliance.
17. We have considered the submissions of both experts and the detailed nuances of clause 3.4.1.2 of the MDCP. Given the specificity in the drafting of this clause, the absence of words is as significant as their inclusion. We note that clauses 3.4.1.2(a) and (b), specifically refer to the date of 21 June, whereas no date is referenced in clause 3.4.1.2(c). It is also noted that clause 3.4.1.2(c) only refers to windows and not glazed doors, as specifically referred to in (a) and (b). It is therefore reasonable for the Court to accept that the living room windows of 1/24 Stuart Street must enjoy a minimum of two hours of solar access between 9am and 3pm at any time of year, measured at the winter solstice and the equinox.
18. We accept that a compliant assessment requires solar access to be 'maintained' and not lost, for a minimum two hour period between 9am and 3 pm at either of these times of the year, and that in this situation, because the living room windows at 1/24 Stuart Street currently receive no sunlight at the winter solstice, the requirement for maintaining at least two hours of sunlight at the equinox is important to the wellbeing of residents in the adjoining property. We also make the distinction of where the (solar access) assessment is made, because clause 3.4.1.2(c) only refers to (living room) windows, and not glazed doors.
19. Having extensively reviewed the solar access video in Exhibit K and the solar access diagrams in Exhibit A, we agree with Mr Minto, that the living room windows at 1/24 Stuart Street receive a minimum of two hours of solar access between 9am and 3pm, at the equinox. Therefore, the requirements of clause 3.4.1.2(c) of the MDCP are achieved by the proposed development.
20. Both experts agree that the proposed development breaches the 8m rear setback as established in clause 4.1.4.4(a) of the MDCP, by 500mm, due to a bay projection from the communal room. They also agree that this breach will not result in any additional or adverse amenity impacts to adjoining properties, including solar access and privacy.
21. Mr Minto contends that clause 4.1.4.4(d) of the MDCP relates to a conventional subdivision pattern, which is not demonstrated on or around this site. Mr Minto considers that, as the site is significantly deeper than adjoining lots, clause 4.1.4.4(d) should be given little weight in the Court's consideration. He concludes that, given the 500mm non-compliance, pursuant to clause 4.1.4.4(a), has no adverse impact on amenity, on the sloping site (b and d), and there is sufficient landscaping at the rear (c), the requirements of clause 4.1.4.4 and the objectives of clause 4.1.4 are generally achieved. Therefore, the proposed rear setback is reasonable.
22. Given the concurrence of the experts and the lack of impact on amenity caused by the proposed 7.5m rear setback, we consider that the non-compliance of clause 4.1.4.4 (a) of the MDCP is acceptable, and accept the evidence of Mr Minto on the subdivision pattern intent of clause 4.1.4.4(d). Given the proposed development adequately minimises overshadowing, visual privacy and view loss, the proposed rear setback is acceptable.
23. We are satisfied that there are no unacceptable (external) amenity impact to the adjoining properties from the proposed development, or internally for boarding house residents. We therefore find that the proposed development complies with the relevant provisions of the MDCP and SEPP ARH, as they relate to amenity.

Assessment of other relevant jurisdictional requirements not in contention?

1. Pursuant to s 4.15(1) of the EPA Act, to grant consent to a DA, the Court is required to consider all matters of relevance to the DA under appeal. A recent decision by Chief Justice Preston in HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [16] explains that the Court must be jurisdictionally satisfied irrespective of whether jurisdictional issues were raised in contention.
2. Below are further considerations for the Court's satisfaction of other relevant jurisdictional requirements that relate to the DA under appeal, and which have not been addressed above.
3. We are satisfied that the site is suitable for the proposed development, pursuant to the requirements of State Environmental Planning Policy No 55 - Remediation of Land.
4. We are satisfied that the proposed development relates to the BASIX certificate by the provision of an amended BASIX Certificate (Exhibit H), which satisfies the requirements of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The Court notes that the amended BASIX certificate to be relied on is dated 13 January 2021. Leave is granted to rely on this version of the BASIX certificate, without opposition of the respondent.
5. In consideration of the relevant matters that relate to the environmental planning provisions, both gazetted and proposed, as required in s 4.15(1)(a)(i) and (ii) of the EPA Act, we have already addressed and found consistency with the relevant provisions of the SEPP ARH. Specifically, we are satisfied that all the provisions identified in cll 29 and 30 are addressed by the proposed development as shown in the amended plans and supporting documents to the DA under appeal. We accept that the site is located within an R1 zone, accessible to transport and commercial development, and permissible with consent, pursuant to cll 26(a), 27 and 28 of the SEPP ARH, and cl 2.3 of the MLEP.
6. With reference to the contention originally raised by Council and supported by an objector, regarding groundwater seepage into the basement, the Court relies on the evidence provided from the Council's development engineer (Exhibit 6), the stormwater plans provided in Exhibit D (accepted by Council), and the agreed conditions of consent. On questioning by the Court, the parties agree and are satisfied that the proposed stormwater and groundwater management, is both appropriate and sufficient to resolve this issue, and achieve cl 6.4 of the MLEP and relevant clauses of the MDCP.
7. Specifically, Council's development engineer has reviewed the geotechnical reports that relate to the site, dated 2017 (Exhibit J) and 2019 (Exhibit C), and expresses his satisfaction with regards to the relevant requirements of the MLEP. The conditions of consent that support this consideration are agreed by the parties and described in the draft conditions of consent (Exhibit 5), which address the residents' concern regarding geotechnical stability and groundwater ingress.
8. We accept that the site is not located within a mapped landslide risk area and is geotechnically sound for the proposed development, which is further considered in the conditions of consent. Therefore, the requirements of cll 6.2 and 6.6 of the MLEP are achieved, and the contention as originally raised, is resolved. The amended landscape plan in Exhibit G resolves any terrestrial biodiversity issues, satisfying cl 6.5 of the MLEP.
9. We are satisfied that the amended DA under appeal complies with the relevant matters established in ss 4.15(1)(a)(i) and (ii) of the EPA Act.
10. In assessment of s 4.15(1)(a)(iii) of the EPA Act, we have assessed the proposed development, pursuant to the relevant objectives and controls described in the MDCP. Further to the assessment of the MDCP previously addressed in this judgment, we are satisfied by the evidence before us that the other relevant controls of the MDCP, are achieved. Specifically, and as originally raised in contention that was advised to the Court as resolved, we accept the advice of Council that the proposed stormwater management system shown in the amended plans (Exhibit D) is capable of servicing the site and is appropriately addressed by conditions of consent. The parties agree that the proposed stormwater management is therefore consistent with the requirements of the MDCP.
11. We are satisfied that the amended DA before the Court under appeal achieves the relevant matters of consideration required for s 4.15(1)(a)(iii) of the EPA Act. As described above, the objectives and controls of the MDCP in contention are resolved to the Court's satisfaction. All relevant requirements of the MDCP are achieved by the plans and documents supporting the DA under appeal, and the conditions of consent.
12. We accept that s 4.15(1)(a)(iiia) of the EPA Act is not relevant to the amended DA under appeal. With regards to s 4.15(1)(a)(iv), we accept these requirements are addressed by the supporting documents to the DA and agreed conditions of consent, and therefore this provision is satisfied.
13. We are satisfied that the proposed development will not have adverse environmental, social or economic impact, and that the site is suitable for the proposed development. Therefore, ss 4.15(1)(b) and (c) of the EPA Act are achieved.
14. We accept that the amended DA under appeal was notified to residents on two occasions, consistent with the requirements of the MDCP. The (resident) submissions received in response to notification periods have been provided in evidence and are assessed by the Court. We are satisfied that s 4.15(1)(d) of the EPA Act is achieved.
15. The resident submissions have been considered and are addressed to our satisfaction, and we find there is no assessed adverse impact to adjoining residents. Therefore, we are satisfied that the proposed development is in the public interest, and s 4.15(1)(e) of the EPA Act is achieved.
16. The issues raised by the Council and given in the reasons for recommendation of refusal have been addressed to our satisfaction by the amendments made to the design of the building, associated infrastructure and landscaping, and the conditions of consent, which the DA now relies upon.

Conditions of consent relating to DA 2019/0661

1. The parties have agreed to the conditions on which the consent should be granted, as provided in Exhibit 5 (dated 15 January 2021).
2. We accept the conditions in full as agreed between the parties, which become Annexure A to DA 2019/0661.

Conclusion

1. The proposed development has been assessed, based on the evidence before the Court, including the DA's (amended) supporting plans, documents, agreed conditions of consent, expert reports and submissions from experts and residents.
2. In determining this application, we find that the DA does satisfy the requirements of the relevant instruments for assessment, namely the EPA Act, SEPP ARH, the MLEP and MDCP. The reasons for our determination are principally because the proposed development: is consistent with the streetscape and compatible with the character of the local area; does not cause adverse amenity impact to adjoining residences or boarders; presents with a design suitable for the site; and is in the public interest.
3. Therefore, DA 2019/0661 is approved, subject to conditions of consent in Annexure A, pursuant to s 4.16(1)(a) of the EPA Act.

Orders

1. Consequently, the orders of the Court are as follows: 1. Leave is granted to rely on an: amended BASIX certificate 1023381M_02, dated 13 January 2021; and amended architectural, stormwater and landscape plans in Exhibits A, D, and G, respectively. 2. The appeal is upheld. 3. Development Application 2019/0661 seeking demolition of existing structures, and construction of a two-storey boarding house of 13 boarding rooms, including a managers room, with basement parking for 7 car spaces and 2 motorcycles, associated infrastructure, landscaping and tree removal on Lot 4 DP 82179, also known as 22 Stuart Street, Manly is approved, subject to conditions as modified in Annexure A. 4. The exhibits, except for Exhibits 2, 3, A, D and E are returned.

Acting Commissioner of the Court Annexure A (536781, pdf) Architecture Plans (3862670, pdf) Stormwater Plans (1766311, pdf) Landscape Plan (461098, 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 February 2021