Overshadowing
27Much attention was given in the expert evidence and submissions as to whether the room on the northern corner of the Federation cottage at 61 Liverpool Street is currently used as a bedroom or a living room, on the basis that if it is characterised as a living room, the parties agree that the control in DCP 2007 Part C clause 5.16 would apply.
28I have not relied on the floor plan of 61 Liverpool Road as indicated on DA-04 issue C, as it the plan is provided by the applicant (59 Liverpool Road) and it is not possible to substantiate, without any doubt, the accuracy of the layout. I accept Mr Betros' evidence that when he inspected 61 Liverpool Road the room in the northern corner was used as a bedroom, however I do not rely on it.
29On the basis that the room in question is located at the rear of the building, in the northern corner, with an original and intact fireplace and surround, it is conceivable that future use or development of the residence may locate a living room in this area. I have therefore assumed, for the purpose of this assessment, the room is a living room and that DCP 2007 Part C5 clause 5.16 is applicable.
30I accept that, as the window orients approximately east-northeast it can be classified as a 'north facing window'. I was not taken to a definition of 'north facing' in DCP 2007. Presumably there is some flexibility in the definition of north facing and it does not require a strict interpretation that it must face directly north. However, as the windows on the side elevation face east-northeast, the windows on the rear elevation face north-northwest and therefore the rear elevation is the façade that most closely orients towards the north.
31The window that is the subject of this scrutiny is a vertically proportioned window, narrow and tall and located close to the internal wall of the room, on one side of the chimney breast (Exhibit 1, tab 1, 2A photo 4). The sunlight to be affected by the proposal is the morning sun at the winter solstice. According to Mr Betros, the window will continue to have solar access at the equinoxes and during summer.
32Based on the evidence, there are a number of alternative living areas within the Federation cottage, including a front room and the enclosed rear verandah, adjacent to the room in the northern corner that is the focus of the overshadowing contention. The enclosed verandah has a large window in the rear elevation, observed during the site visit. Significantly, in this instance, there is an opportunity in the future of modifying the cottage at the rear to take best advantage of its rear northern aspect. The overshadowing, based on the agreed expert evidence, does not affect the rear elevation or rear yard of 61 Liverpool Road.
33With regard to the overshadowing planning principle by Senior Commissioner Moore, I note the Senior Commissioner includes, at paragraph 144, the following statement:
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.
34The controls in DCP 2007 Part C5 clause 5.16(c) are quite specific regarding the amount of time (at least 3 hours between 9am and 3pm in mid winter) and the area of the window (at least 40%) to which solar access should be maintained. DCP 2007 does not leave open a question as to what proportion of the window should be in sunlight and so there is no need to turn to the overshadowing planning principle to make an assessment.
35With regard to the general impact planning principle, it is necessary to look at the overall change in impact and balance the magnitude of the impact with the necessity and reasonableness of the proposal that creates it. Neither the Council's Statement of Facts and Contentions, nor Mr Bas' evidence, addressed the magnitude of the overshadowing impact on the window, relative to the existing overshadowing, except to state that the overshadowing caused by the proposal will not comply with DCP 2007 Part C5 clause 5.16(c). In turning to the magnitude of the impact, I have considered the Federation cottage and its access to sunlight as a whole. The dwelling will continue to enjoy solar access at the northern rear elevation and the loss of sunlight, at the winter solstice, to one small window on a side elevation is relatively minor. The proposal that creates the impact is a reasonable one, as the addition of the room is within the existing building envelope and it complies with the FSR control. In taking into consideration the vulnerability of the property receiving the impact, the Federation cottage is located within area zoned for higher density and the window is located on a side elevation with an east-northeast aspect. It is harder to protect a window on a side elevation in a denser area. The proposal is well designed and will complete the massing of the residential flat building and it complies with the planning controls, including FSR.
36Balancing the size of the affected window, its location on a side elevation and existing opportunities for solar access at the rear of the dwelling against the clumsy solution of deleting a single room midway along the side elevation of 59 Liverpool Street, I find that the minor impact on the amenity of 61 Liverpool is acceptable and that restoring the proposal to its intended form is desirable.