1. The Hobart City Council is directed to issue an amended permit for development application PLN-22-282 according with these orders within 14 days.

1. Any application for an order for costs in this appeal is to be made in writing with supporting submissions within 21 days. If no application is so filed each party is to bear their own costs.

Resource and planning - Planning appeal - Multiple dwellings - Whether private open space orientated to take advantage of sunlight.

Jacobs v Hobart City Council [2023] TASCAT 158; Jacobs v Hobart City Council (No.2) [2023] TASCAT 71B;

Jacobs v Hobart City Council [2024] TASSC 38;

Jacobs v Hobart City Council (No.3) [2024] TASCAT 229;

M Cubitt & T Powell v Launceston City Council & Ors [2022] TASCAT 47;

Raff Angus Pty Ltd v Resource Management and Planning Appeal Tribunal [2018] TASSC 60.

1. In Jacobs v Hobart City Council [2023] TASCAT 158 (Jacobs (No.1)) we made a preliminary determination that the appeal in this matter should be dismissed and that the decision by the Council to grant a permit for a development application by the second respondent should be affirmed. Directions were made in respect to the filing of proposed conditions, and final orders were made in Jacobs v Hobart City Council (No.2) [2023] TASCAT 71B.
2. The appellant appealed the Tribunal's decision to the Supreme Court. The appeal was upheld by Porter AJ in Jacobs v Hobart City Council [2024] TASSC 38 (Jacobs (Court)). His Honour set aside the Tribunal's decision and ordered that the matter be returned to the Tribunal for reconsideration in accordance with his Honour's reasons.
3. An application by the second respondent to reopen the evidence was refused in Jacobs v Hobart City Council (No.3) [2024] TASCAT 229. The hearing proceeded by way of submissions.
4. At the remitted hearing the Council adopted the submissions made by the second respondent.

1. We repeat in the following six paragraphs the observations made in Jacobs v Hobart City Council (No.3) at [6]-[11] in respect to the appeal to the Court and his Honour's determination.
2. The appeal to the Tribunal was made on nine grounds, each of which was dismissed. The appeal to the Court was argued on three grounds, however as observed by his Honour at [14] "in essence, the three grounds really involve the same question, that being whether the Tribunal was wrong in its interpretation of what the Scheme required by virtue of the phrase in criterion P2(b) - "oriented [sic] to take advantage of sunlight"".
3. His honour was referring to an issue arising in connection with ground 3 of the appeal to the Tribunal, which raised compliance with the performance criterion P2(b) of cl 11.4.3 of the Hobart Interim Planning Scheme 2015 (the Scheme), it being common ground that the acceptable solution A2 would not be satisfied by the proposal in respect to each of the 22 multiple dwellings making up the proposed development. P2(b) requires private open space that is "orientated to take advantage of sunlight":

11.4.3 Site coverage and private open space for all dwellings

That dwellings are compatible with the amenity and character of the area and provide:

(a) for outdoor recreation and the operational needs of the residents;

(b) opportunities for the planting of gardens and landscaping; and

(c) private open space that is conveniently located and has access to sunlight

P2

A dwelling must have private open space that includes an area capable of serving as an extension of the dwelling for outdoor relaxation, dining, entertaining and children's play and is:

(a) conveniently located in relation to a living area of the dwelling; and

(b) orientated to take advantage of sunlight.

1. Clause 11.4.3 P2 is also relevant to ground 4 of the appeal to the Tribunal. Ground 4 raises compliance with cl 11.4.4 P1 of the Scheme, which references cl 11.4.3 P2:

11.4.4 Sunlight to private open space of multiple dwellings

That the separation between multiple dwellings provides reasonable opportunity for sunlight to enter private open space for dwellings on the same site.

P1

A multiple dwelling must be designed and sited to not cause an unreasonable loss of amenity by overshadowing the private open space, of another dwelling on the same site, which is required to satisfy A2 or P2 of clause 11.4.3 of this planning scheme.

1. The Tribunal applied the construction of the phrase "orientated to take advantage of sunlight" in P2(b) explained in M Cubitt & T Powell v Launceston City Council & Ors [2022] TASCAT 47 (Cubitt) at [41]-[46], which was that the use of 'orientated' required consideration of whether the relevant area is orientated to take advantage of sunlight by compass reference. The Tribunal considered that the proposal would comply with P2. Porter AJ determined that the Tribunal misdirected itself as to the construction of P2(b), resulting in a constructive failure to exercise jurisdiction.
2. At [30] his Honour described the correct approach to be taken to the application of P2(b):

What is required by P2(b) is an assessment of the sunlight available to the site, and then an examination of whether the private open space is positioned so as to take advantage of that sunlight. To that extent, the test requires a qualitative analysis, not a generalised quantitative assessment of positioning by reference to north. Through its focus on the boundaries of the open space being generally referable to the north on the assumption that it provides the "best advantage of what sunlight might be available", the Tribunal failed to assess whether the positioning, whatever that might be, in fact enabled the open space to take advantage of sunlight.

3. His Honour determined the appeal on that basis. He observed that an issue remained between the parties concerning the use of the zone purpose statements in determining an application for a permit, but considered that it was unnecessary to determine that matter to dispose of the appeal. That issue has since been addressed in Gillard v Launceston City Council [2024] TASSC 37.

1. The hearing proceeded on the basis that the ambit of the matter remitted was reconsideration and determination of grounds 3 and 4 of the appeal to the Tribunal. Those grounds are:

3. The application is required and fails to demonstrate compliance with cl.11.4.3 P2 of the Hobart Interim Planning Scheme 2015 as to gain an exercise of the discretion under cl.8.8.1(b) to approve the proposal because the dwellings numbered 1-11 on Drawing No. DA10 Revision C do not have private open space that includes an area capable of serving as an extension of the dwelling for outdoor relaxation, dining, entertaining and children's play that is conveniently located in relation to a living area of the dwelling and orientated to take advantage of sunlight. > > 4. The application is required and fails to demonstrate compliance with cl.11.4.4 P1 of the Hobart Interim Planning Scheme 2015 as to gain an exercise of the discretion under cl.8.8.1(b) to approve the proposal because the dwellings are not designed and sited to not cause an unreasonable loss of amenity by overshadowing the private open space of other dwellings on the same site, namely those numbered 1-11 on Drawing No. DA10 Revision C.

2. Ground 3 raises compliance with the performance criterion P2 of cl 11.4.3 of the Scheme.
3. Ground 4 relates to compliance with cl 11.4.4 P1 of the Scheme and is brought into contention as it relates to areas of private open space determined by reference to findings in respect of P2 of cl 11.4.3.

1. In Jacobs (No.1) at [5]-[7] we described the site in the following terms:
   1. The site is located at the intersection of Sunnyside Road and Paviour Street in New Town. It covers an area of 1849m². It has an irregular shape, with road frontage to Paviour Street along the northeast boundary and road frontage to Sunnyside Road along the southeast boundary. The site is to the east of New Town Road. It has a short road frontage to New Town Road via a narrow strip running between two adjacent properties. Residential dwellings adjoin the site on the northwest and southwest boundaries.
   2. The site was once quarry and has steeply sloped walls on the Paviour Street and Sunnyside Road frontages.
   3. The site is currently in public ownership. It was used as a tennis club before being purchased in 2020 by Homes Tasmania, which is the Tasmanian state housing authority.

1. The description of the proposal in Jacobs (No.1) included the following at [8]-[9] and [37]:
   1. The proposal is for social housing. The social housing will be managed by Centacare.
   2. The proposal would demolish all the current built form on the site and provide 22 dwellings contained within a single built form. The dwellings would be comprised of 11 single-storey units on the ground floor and 11 two-storey units on the first and second floor.
   3. Each of the ground floor dwellings will have two areas of private open space, which are identical as between the dwellings: a terrace on the western elevation and a terrace on the eastern elevation. The western terrace will include the front gate and entry to the dwelling. It will also include a small air-conditioning unit. The eastern terrace will incorporate a folding clothesline and a hot water cylinder. Both the eastern terrace and the western terrace will have a width of 3.88m. The western terrace will have a depth of 1.98m and the eastern terrace will have a depth of 1.42 metres.
2. The terraces have variously been described as being on the eastern and western elevations and the northeast and southwest elevations. In this decision we have described them as being northeast and southwest.

1. The focus of the submissions of the appellant at the hearing was on ground 3. Compliance with P2(a) was not in contention. The issue advanced by the appellant in respect to ground 3 is whether each of the 11 dwellings on the ground floor, being units 1 to 11, will have private open space that is "orientated to take advantage of sunlight" for the purposes of P2(b).
2. Porter AJ summarised the facts relevant to ground 3 at [7] - [11] of his decision:

7. The appeal to the Tribunal, insofar as it was concerned with the provision of private open space, was limited to the 11 ground floor units. Before the Tribunal it was common ground that the acceptable solution A2 would not be satisfied by the proposal in respect of each of the units. By virtue of cl 8.8.1(b) of the Scheme, (set out later in these reasons), because the proposal relied on the performance criteria to comply with the standard, the exercise of whether or not to grant the permit became a discretionary one. The proposal had to demonstrate compliance with performance criteria P2 for each of the dwellings. The criteria in P2 are cumulative and there is no issue about compliance with P2(a). > > 8. Each of the 11 units was provided with two areas of private outdoor space, one located to the east and one located to the west. The private open space afforded by those units was to be provided by way of two terraces, one located to the north-east of the dwelling accessible through the bedroom, and the other to the south-west and access directly from the living areas of the dwelling. > > 9. The Tribunal had expert evidence relevant to the P2(b) issue. For the appellant, Neil Shephard said that ordinarily, the location of private open space between the dwelling and northern exposure would maximise the opportunity for sunlight to reach the space; conversely, locating the open space behind the dwelling with a southerly orientation would not. In his view, on the basis of shadow diagrams and other information, the private open space on the south-western facing terraces was not oriented to take advantage of sunlight. As to the rear north-eastern facing terraces, he said that while they enjoy that orientation, the physical features of the site, (including a bank/cutting at the rear), meant there was no sunlight of which such an orientation could take advantage. > > 10. Michael McClenahan gave evidence for the Council. His evidence was to the effect that the private open space on the eastern elevation was oriented approximately 66.1 degrees east of north, while that on the western elevation was orientated approximately 113.9 degrees west of north. His assessment was that the private open space for the ground floor dwellings was orientated to take advantage of sunlight. In his opinion a consideration of the topographical context of the open space for assessment against cl 11.4.3 P2 was not relevant. As to the second terrace on the western elevation, he said that this orientation was not as advantageous with respect to sunlight access but thought that as secondary, supplementary area, the combination with that available on the eastern terrace was "sufficient to be considered satisfactory in having private open space to a dwelling taking advantage of sunlight so as to facilitate a reasonable amenity for its occupants." > > 11. Monica Cameron gave evidence for the respondent. In her opinion it was a preferential option to locate private open space on eastern and western elevations rather than north and south, as they would access sunlight for longer periods during the day between the two. The private open spaces on the eastern elevation would receive sunlight throughout the morning, while those on the western side, would receive sunlight in the afternoon. As the spaces will receive sunlight through most of the day, and are provided on two different building elevations, the areas were considered sufficiently orientated to take advantage of sunlight.

3. The relevant areas of private open space comprise the terraces on the northeast and southwest of each dwelling unit. As noted by his Honour, the southwestern areas of private open space would have access directly from the living areas of the dwellings, and so would satisfy the requirement in P2(a) that the area of private open space be conveniently located in relation to a living area of the dwelling. In Jacobs (No.1) we found that the northeast terraces would also satisfy P2(a). That finding was not challenged on the re-hearing. We also determined at [48]-[50] that the northeast terraces would accommodate the activities identified in P2. The appellant did not dispute that finding at the re-hearing and did not contend that the southwest terraces would not also accommodate those activities.
4. P2 relates to solar access to private open space. The objective of a standard may provide context for the interpretation of the standard: Raff Angus Pty Ltd v Resource Management and Planning Appeal Tribunal [2018] TASSC 60 [22]-[24]. Clause 11.4.3(c) provides the following objective:

That dwellings are compatible with the amenity and character of the area and provide: > > (c) private open space that is conveniently located and has access to sunlight.

The acceptable solution refers only to the location and dimension of the private open space and orientation to true north, and provides no context for the qualitative analysis required by P2. P2 does not quantify access to sunlight, require any particular period of solar access, or refer to access in a particular season or at a particular equinox or solstice. Neither does the objective, or the acceptable solution A2. The standard does not require that the areas of private open space receive sunlight, but that they be orientated to take advantage of sunlight.

1. The standard does not require that the existing solar access be retained for private open space. Generally, all buildings will cast shadow. A building developed on the site cannot reasonably be expected to retain as much sunlight to its private open space as is experienced in the undeveloped state of the site, unless the space is located on the roof or physically separated from the building and placed away from any walls. This would be inconsistent with the test in the standard that the private open space serve as an extension of the dwelling, and with the requirement in P2 (a) that the area be conveniently located in relation to the living area of a dwelling.
2. The appellant contended that units 1-11 would get little sunlight to their private open spaces. The appellant focused on winter as the worst case scenario. Units 1, 2 and 3 will have little if any sunlight to their private open spaces in winter. The appellant contended that as a consequence, the proposal should be refused.
3. The possibility of conditioning the proposal to require that the impugned units be provided some non-residential use, such as storage, was canvassed at the hearing but was not advanced by either party. Doing so would, of course, not affect the form of the building and the impact of the form of those units and the building on the remaining units.
4. While the worst case for solar access is in winter, P2 makes no reference to the time of year, nor does the objective. P2 does not expressly require that the relevant space has to have some sunlight throughout the year, merely that the space be orientated to take advantage of sunlight.

1. In evidence are shadow diagrams prepared by Mr Andrew Strugnell, an expert called by the second respondent at the original hearing. The parties generally agreed that the diagrams were correct, subject to some disagreement concerning fence types and heights for the private open spaces, and the consequent balance between privacy and sunlight penetration.
2. The site is an inner city in-fill site. The shadow diagrams identified existing external shadow impacts from neighbouring houses and trees and on-site impacts, particularly the quarry face, which will continue and which will impact the proposed building.
3. The shadow diagrams show that at 9am on the March 21 equinox the site is shadowed by the quarry face over much of its ground surface. The shadowing starts to recede some time before 10am and by 12pm the only shadow on the site is from trees on the neighbouring site to the north corner and a small shadow from the top of the quarry running along its base. This situation stays much the same until around 3pm when the quarry shadow is gone and the site starts being shadowed by trees to the north. By 5pm the shadowing is from the neighbouring buildings to the west and south west. The spring equinox on 21 September is much the same.
4. At the winter solstice on 21 June the morning shadow does not recede as quickly. At 11am the shadow is still deeper than at 10am on the March equinox and at 12pm the shadow cast by the trees to the north is still significant across the northern corner of the site. This northern shadow persists and grows past 2pm and 3pm and eventually falls over much of the site, combined with western shadows from neighbours, by 4pm.
5. Therefore, the site has existing shadowing, which is longer in winter and affects the majority of the site in winter afternoons. As might be expected, the shadowing is at its least at the summer equinox on 21 December.

1. The second respondent identified a number of design decisions made by the developer, including siting the building away from the quarry face, but there was no evidence of alternative siting options for the building, with consequential alternative shadow patterns. Notably, P2 does not refer to the building being orientated to take advantage of sunlight but to the private open space being so orientated.
2. The proposed siting and design enables private open space for the units to be positioned on both the northeastern and southwestern facades of the building at ground level, so providing two areas for each dwelling. If the building was set closer to the quarry wall the private open spaces on the southwest side of units 1-11 could be larger in area but at the expense of the northeastern terraces and they would not have the increased privacy of the terraces on the northeast side. It is possible that deeper and larger private open spaces on the southwest side of units 1-11 would get a little more sunlight than is proposed but we have no evidence of that.
3. The extent of shadow on the private open spaces, both to the northeast and the southwest, is demonstrated by perspective views created by Mr Strugnell. The tables below summarise our analysis of sun penetration for June, March and December to the northeast and southwest areas of private open space for units 1-11. The tables do not include the September equinox, as it is similar to the March equinox.

Northeast private open space sunlight for units 1-11

A little more than units 1 and 2 between 11am and 12pm

Some between 12 and 1pm but walkway obstructs the view: probably less than units 4 and 5

Sun at 11am until after 12 but gone by 1pm - but the walkway reduces this

Sometime prior to 11am there is sun until sometime prior to 1pm

Sometime prior to 11am there is sun until sometime prior to 1pm

Sometime prior to 11am there is sun until sometime prior to 1pm

Sometime prior to 11am there is sun until sometime prior to 1pm

Sometime prior to 11am there is sun until sometime prior to 1pm

Southwest private open space sunlight for units 1-11

Small portion of sunlight at 2pm to 4pm approx. 1/3 to1/4 of the space

Small amount of sun at 2pm turning to almost full sun by 3pm and on to 5pm when tree to the north intervenes

Small portion of sun at 3pm to half area with sun by 5pm then tree intervenes

Sometime before 3pm - 5pm full sun most of the time

Sometime before 3pm - 5 pm full sun most of the time

Sometime before 3pm - 5 pm full sun most of the time

Sometime before 3pm - 5 pm full sun most of the time

Sometime before 3pm - 5 pm full sun most of the time

Sometime before 3pm - 5 pm full sun most of the time

Sometime before 3pm - 5 pm full sun most of the time

Sometime before 3pm - 5 pm full sun most of the time

1. It is apparent that all the areas of private open space have some access to sunlight at different times of the year, and for different periods of time. All are orientated to take advantage of what sunlight there is. No apparent re-orientation of them would increase their access to sunlight. The least solar penetration is to the private open space of units 1, 2 and 3 and possibly 6. In winter parts of Units 1, 2 and 3 will have no sun. The southwest private open spaces of those units will have at least some sunlight in the other seasons.
2. Having regard to the limited sunlight available to the site, applying the qualitative approach described by Porter AJ, and observing that P2 does not set any quantitative tests as to length of or timing of solar access, we are satisfied the areas of private open space of units 1-11 are each positioned so as to take advantage of that sunlight. P2 is therefore satisfied and ground 3 is not made out.

1. Ground 4 relates to compliance with cl 11.4.4 P1. Although the issue was alive on the ambit of the remitted appeal, the appellant's case turned on P2 of cl 11.4.3 and ground 4 was not actively pressed by the appellant except insofar that he asserted that findings by the Tribunal in Jacobs (No.1) concerning overshadowing caused by the dwellings themselves was inconsistent with finding that the proposal would satisfy P2 of cl 11.4.3.
2. Our findings in respect to ground 4 were set out in Jacobs (No.1) at [58]-[71]:

58. It was common ground that the acceptable solution would not be met and that the proposal must be assessed against the performance criteria P1 [of cl 11.4.4]. > > 59. P1 is directed at consideration of unreasonable loss of amenity by overshadowing of private open space. It is directed to overshadowing of dwellings on the site by other dwellings on the site. > > 60. Amenity is defined in cl 4.1.3 as meaning: > > in relation to a locality, place or building, any quality, condition or factor that makes or contributes to making the locality, place or building harmonious, pleasant or enjoyable. > > 61. The standard contemplates that there may be an acceptable loss of amenity, and P1 will be satisfied if the loss is not unreasonable. In A&N McCullagh v Glamorgan Spring Bay Council & Ors [2019] TASRMPAT 30 at [24] RMPAT said that 'unreasonable', in consideration of an unreasonable loss of amenity, means something which is immoderate or exorbitant. > > 62. The usual before-and-after analysis of amenity, as described in G Palmese v Hobart City Council & J Connolly [2022] TASCAT 137, cannot be applied in this case as the multiple dwellings will be constructed at the same time. What is required is to consider the amenity of the private open space of a dwelling as if the other relevant dwelling or dwellings were not constructed and to compare that level of amenity with the amenity of the dwelling as if the other relevant dwelling or dwellings are constructed. > > 63. Figure 11.4 in the Scheme, which informs consideration of the acceptable solution, suggests that the clause was drafted in contemplation of physically separate multiple dwellings. Assessment of the performance criteria is complicated by having the dwellings contained within a single built form. Any potential overshadowing that might affect amenity will arise in respect to the ground floor units, and be caused by the first floor units, and the immediately adjoining units on the same level. > > 64. The topography of the site, and in particular the siting of the ground floor units approximately 6.5 metres below Paviour Street, will restrict solar access. However, topographic affects, and the effects of adjoining properties are not engaged by P1. > > 65. Comprehensive shadow diagrams were provided by Mr Andrew Strugnell, who was called by Centacare. > > 66. The worst effect of a combination of topographical overshadowing and overshadowing from the proposal itself will occur in June, and the least effect in December. These effects were usefully described by Mr McClenehan in the following terms: > > During June, on the eastern elevation, the private open space of all ground floor dwellings will be in shadow, to the best of my understanding, from 9:00am until 2:00pm as a result of existing topography on the site. This private open space will only be overshadowed from other multiple dwellings on the same site from 2:00pm until sunset, roughly 3 hours. Based on the available documents I cannot discern sunlight falling on the eastern elevation private open space of the ground floor units. On the same date on the western elevation my understanding is that sunlight will only reach the ground floor units private open space from 4:00pm, all other daylight hours will see this private open space in shadow from the building itself. > > During December, the ground floor unit's private open space along the eastern elevation will be in partial sunlight from 9:00am and full sunlight from 10:00am until at least 12:00pm. Diagrams from 1:00pm onwards were not provided for this elevation. On the western elevation, unit 01 will have its private open space in some sunlight from 1:00pm with sunlight then falling on all other ground floor units from 3:00pm. > > 67. However, the shadowing effect on the private open space on the eastern terraces, other than by the topography, will be caused by privacy screens and shared communal walkways of the proposal, rather than by other dwellings. > > 68. In respect to the western terraces, it is difficult to assess the extent to which the first floor dwellings affect the ground floor dwellings from the shadow diagrams. Comparing the proposal with the single-storey residential dwellings facing onto New Town Road, which are also included in the shadow diagrams, which adjoin the site, it is apparent that the structures of the buildings themselves overshadow their own western spaces. This shows that there would be overshadowing to the western terraces even if the ground floor units constituted a single-storey development without the units above. > > 69. Even if the western terraces are overshadowed by the upper dwellings, the eastern terraces will not be overshadowed by the upper dwellings. > > 70. The shadow diagrams also showed some overshadowing of private open space by the privacy screens between the respective units private open space. Given that the privacy screens are shared between the units, the proportion of the privacy screen attached to a unit will not increase the overshadowing of a neighbouring unit beyond the overshadowing caused by that neighbouring unit's privacy screen. > > 71. The extent of any overshadowing to any unit caused by other units in the proposal will not cause an unreasonable loss of amenity. > > 72. We are satisfied that the proposal will comply with P1.

3. Our findings in respect to ground 3 do not cause us to reach a different conclusion in respect to ground 4. The proposal will receive sunlight to the private open spaces of all units on the ground floor around the middle of the day on one side and in the afternoon on the other side, at different times of the year. We remain satisfied that the extent of any overshadowing to any unit caused by other units in the proposal will not cause an unreasonable loss of amenity to those units.

1. Neither of the grounds raised on the remitted hearing are made out. We determined in Jacobs (No.1) that the remaining grounds of appeal, which were not the subject of the appeal to the Court, should be dismissed.
2. Following the substantive decision in Jacobs (No.1) the parties agreed on varied conditions of the permit, which were annexed to the final decision in Jacobs v Hobart City Council (No.2). No party has proposed any further variation to those conditions.
3. Accordingly:
   1. The decision of the Hobart City Council to grant a permit for development application PLN-22-282 is varied by substituting the conditions of the permit with conditions in the terms set out in annexure A to Jacobs v Hobart City Council (No.2) [2023] TASCAT 71B.
   2. The Hobart City Council is directed to issue an amended permit for development application PLN-22-282 according with these orders within 14 days.
   3. Any application for an order for costs in this appeal is to be made in writing with supporting submissions within 21 days. If no application is so filed each party is to bear their own costs.