The Evidence
13 This was an onsite hearing so I had the benefit of viewing the proposal from the two adjoining neighbouring properties, the owners of which had lodged objections to the council.
14 I heard evidence from the owners of both of those properties in relation to their concerns regarding the proposed development and viewed the site from their land in order that they could indicate precisely the concerns they had.
15 The owner of the property to the south of the site, No. 13 Carr Street, expressed major concerns in relation to the development and its impact on the solar access currently enjoyed in his living room. He states that the living area was designed to maximise sunlight in winter whilst maintaining the floor levels of the original house. He considers that the design minimised privacy impacts on neighbours and accommodated topography constraints whilst facilitating accessibility needs of his family. He was concerned that the proposed development did not satisfy Council's planning controls, particularly in relation to solar access.
16 The owner of the property to the north, No. 17 Carr Street, was concerned about the height and bulk of the proposed building and the loss of privacy that he considers will occur.
17 Expert town planning evidence was provided by Mr Glendinning for the applicant and Mr Sanders for the respondent. These experts provided views on the matters to be assessed under clause 13D of the LEP, the solar access requirements of the DCP and the shadow diagrams.
18 Mr Glendinning considered that clause 13D provided for special circumstances so that compliance with solar access would not always be required. In his opinion, the fact that No. 13 Carr Street had been excavated in the vicinity of 2 metres meant that special circumstances applied. He described the living area of the dwelling on this land as 'sub-terrainian' and due to the extent of cut, could not be expected to retain solar access on redevelopment of the land to the north. He stated that the upper level and deck at the rear of the dwelling at No 13 Carr Street would enjoy the requisite 3 hours sunlight in winter and the lower areas would receive sun in winter. He considered that this would be acceptable and that it would be possible to convert the study at the upper level of the dwelling to a living area.
19 Mr Sanders took a contrary view and stated that planning test for solar access is that living areas are to receive a minimum of three hours sunlight at the winter solstice. He stated that the reference to 'special circumstances' in clause 13D related to those circumstances where the minimum solar access could not be achieved. He acknowledged that the development as approved by Council would not achieve the 3 hours sunlight to the adjoining premises. Therefore he considered that the condition imposed to reduce the height of the proposed dwelling, so as to provide some solar access to the living area at No 13 Carr Street, was reasonable.
20 Both experts agreed that the shadow diagrams submitted provided a true representation of the impacts of the proposed development on the adjoining property.
21 There is agreement that the private open space of the adjoining dwellings will receive the required solar access and that a new fence will not affect the solar access to the living areas of the adjacent dwelling.
22 The shadow diagrams indicate that the living area of the adjacent dwelling currently receives some sun at 9am increasing to full sun at noon and reducing until no sun is received at 3pm on the winter solstice.
23 Details of the impact of the proposed dwelling without the height reduction show that the living areas would be fully shaded at 9am, would receive a slither of sun to the top of the windows at 10.30am, some sun on the top portion of half of the windows at noon and no sun by 1.30pm. Accordingly, the living room would not receive the required 3 hours sunlight.
24 Figures 36-40 of the shadow diagrams detail the impact of the proposal as approved by Council with the 500mm reduction in roof and eave height of the dwelling. At 9am the living room of the proposed dwelling is in shadow, at 10.30am approximately half of the window receives sun, at noon, half of the windows receive sun to half of the panes and at 1.30 pm, the entire window area is shaded. It is apparent that even with the reduction in height of the proposed dwelling, the living area of the adjoining dwelling will not receive the required three hours sunlight.
25 The matter that is to be determined is whether the difference made by reducing the height of the dwelling is significant and therefore warranted.
26 Mr Glendinning considers that the dwelling at No 13 Carr Street is poorly designed and this contributes to the loss of sunlight and as the Council's DCP requirement includes the words 'where possible' compliance with the standards for solar access need not apply. He is of the view that the difference in solar access by the reduction in height of the proposed dwelling is small only and 'places an unacceptable burden both form a lifestyle and amenity perspective and cost perspective on the applicant'.
27 Mr Sanders accepts that the changes are minor however is of the view that marginal changes would have a material difference of the amenity of the adjacent dwelling and accordingly, the reduced height is justified.