Fodor Investments v Hornsby Shire Council

The applicant's expert's evidence 22 Mr Steven McMahon, a planner and urban designer retained by the applicant, gave evidence. While he was not given leave to comment on the final amended drawings, his original comments remained relevant. · The additions to the Tulloch Wing did not add visual bulk to the existing building. They improved its appearance. · Units 7 and 8 could not overlook 20 Somerset Street. · The privacy within the proposal was acceptable. A certain extent of overlooking in medium density development is unavoidable.

Findings 23 As regards the impact of the additional floor on the Tulloch Wing on Somerset Street, I accept Mr McMahon's opinion, supported by perspective drawings, that the impact will be minor. The additional floor is set back and will not be easily seen from street level. 24 As regards the overlooking of the rear yard of 20 Somerset Street from Units 2, 3, 7 and 8, I agree with Mr Dickson that it will create uncomfortable conditions for that property. I do not think, however, that this alone is a reason for refusal, since it would be possible to avoid the problem, at least from the top units, by making parts of the roof terrace non-trafficable. The applicant is gaining a great deal of floor space by adding another floor to the Tulloch Wing. With a more modest approach to the roof terraces, the top floor could be designed to have negligible impact on 20 Somerset Street. 25 The main weakness of the proposal is the amenity it would provide to its own residents. In my opinion, this is worse than Mr Dickson suggested; and he did not support the proposal. The examples he gave of overlooking are only a sample of the many instances where balconies and windows are too close to each other for comfort. I accept, of course, that in medium density developments a certain amount of overlooking from upper floors is unavoidable. In this proposal, however, overlooking occurs also at ground level. The worst example is from the communal open space into the private courtyards of the units to the south of it. The problem is due to the communal space being elevated above the courtyards, which is an unusual feature in housing projects of this kind. Privacy can be achieved only by relying on planting. Although Mr Dickson did not raise the issue, I note that the difference in levels, combined with the large balcony above, will ensure that the courtyards and the glazing to the lounge and kitchen of Units 19 and 20 will be in permanent shadow in mid-winter. It seems pointless to place living areas and courtyards to the north only to deprive them of sunlight by overhangs and level changes. 26 Mr Dickson's concerns about insufficient headroom in the basement level appear valid. I hesitate to put too much weight on this because his evidence came late (through no fault of the applicant or Mr Dickson) and because it is unusual for mechanical ventilation drawings to come before the Court. On the other hand, the proposal is unusual in having so many different floor levels at basement and ground. My concern is that the ground levels would have to be raised further to create adequate headroom in the basement. 27 I accept the Court-appointed expert, Mr Dickson's view that the internal amenity of this proposal falls short of acceptable. The appeal is therefore dismissed.