Jamisa Design Pty Ltd v Ashfield Council

Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s 97AA of the Environmental Planning and Assessment Act 1979 against the refusal by Ashfield Council (the Council), of an application to modify development consent, Development Application 10.2010.18.2 (the application) for an additional room in a boarding house, currently under construction and nearing completion, at 59 Liverpool Road, Ashfield (the site).

Issues 2The contentions in the matter are whether:

• The proposed additional room will result in unacceptable overshadowing of the adjoining property at 61 Liverpool Road;
• Whether the proposal is in the public interest.

The site and its context 3No 59 Liverpool Road, Ashfield, is located on the northern side of Liverpool Road (Hume Highway), between Pembroke Street and Gower Street. The site has a frontage of 15.24m and an area of 855.6 m2. The site contains a partially constructed three storey residential flat building. The mass of the building is divided into three blocks, identified as the front building, middle building and rear building. The site is level. 4The adjoining property, 61 Liverpool Road, is to the south-west of the site and contains a single storey, Federation cottage, listed as a heritage item in Schedule 7 of the Ashfield Local Environment Plan 1985 (LEP 1985).

Background and the proposal 5Development consent for a three storey, boarding house development at 59 Liverpool Road, Ashfield, was granted on 11 May 2011 and permitted 31 rooms and a maximum of 39 persons. A single room on the third floor in the western corner of the middle building of the development was deleted, by amending the architectural plans prior to the granting of development consent, in response to Council's concerns regarding solar access to the neighbouring property at 59 Liverpool Road, Ashfield. 6The proposal seeks to add an additional room to the western side of the second floor and modify Condition 2 of the original consent to state: The boarding house shall comprise no more than 32 rooms and accommodate no more than 40 persons at any time. Management of the premises must at all times monitor the number of rooms and persons within the building to ensure that the maximum numbers are not exceeded.

Planning Framework 7The proposal has been submitted pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP (ARH)). The parties agree that the provisions of SEPP (ARH) are the most important consideration in terms of the hierarchy of planning instruments and controls. 8The parties disagree as to whether the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) are applicable. Council's contentions include that the proposal does not comply with SEPP 65, Part 2 Design Quality Principles, Principle 7 Amenity: Good design provides amenity through the physical, spatial and environmental quality of a development. Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility. 9The Council also contends that the proposal does not comply with The Residential Flat Design Code (RFDC), which, according to the Council's Statement of Facts and Contentions, requires a 12 metre separation between adjoining buildings to control overshadowing. 10The site is located within the 2(c) Residential and Part 9(c) County Road Widening Reservation Zones under the provisions of LEP 1985 and the proposal is permissible with consent. 11The Ashfield Development Control Plan 2007 (DCP 2007) applies to the development. Part C5 Multi-Unit Development in Flat Zones, under Solar Access states: 5.16 In assessing the adequacy of solar access the Council will use the following standards as the maximum amount of overshadowing: a) Sunlight to at least 50% (or 35m² with minimum dimension 2.5m, whichever is the lesser area) of the principal private area of ground level private open space (see definition at Section 8.2) of adjacent properties is not reduced to less than three (3) hours between 9am and 3pm on 21 June. Where existing overshadowing by buildings and fences is greater than this, sunlight is not further reduced by more than 20% at any one time. b) Any private courtyard within a development should also achieve 3 hours of sunlight over 50% of its area, between 9am and 3pm on 21 June. c) Existing solar access should be maintained to at least 40% of the glazed areas of any neighbouring north facing living room/dining room windows, for a period of at least three (3) hours between 9am and 3pm in mid winter (on 21 June). If existing solar access is already less than this standard, it should not be further reduced by more than 20% at any one time. d) North facing windows within a new development should achieve the same standard of solar access.

Evidence 12Expert planning evidence was heard from Mr Anthony Betros, on behalf of the applicant and Mr Atalay Bas on behalf of the respondent. 13The Court, in the company of the parties and their experts, observed the site and the adjoining property from an access driveway on the south-western side of the site. There were no resident objectors present at the site inspection. 14The experts agree that the maximum Floor Space Ratio (FSR) control would allow a FSR of 1.25:1 and that the proposal will result in an FSR of 1.11:1. The proposal therefore complies with the FSR control.

Overshadowing 15The experts agree that the proposal does not affect the solar access of the rear elevation or the rear yard of 61 Liverpool Road. 16According to Mr Betros, who inspected 61 Liverpool Road, the room in the northern corner is used as a bedroom. According to Mr Bas, who has not inspected 61 Liverpool Road, the room in the northern corner is shown on a layout drawing, supplied as part of a Building Applications in 1990 (BA 466/90) and 1994 (BA 60/94), as a living room. Further, Mr Bas pointed out that the room has a fireplace and corresponding chimney, shown in a photograph (Exhibit 1, tab 1, photo 4) and that living rooms commonly have decorative fireplaces in dwellings of this era. 17According to Mr Betros, as the room is used as a bedroom, clause 5.16(c) Part C5 of DCP 2007 does not apply and according to Mr Bas, as the room has been given consent for use as a living room, clause 5.16(c) does apply. 18Mr Patterson, on behalf of the respondent, referred to the Court's overshadowing planning principle in The Benevolent Society v Waverley Council [2010] NSWLEC 1082 (overshadowing planning principle). Relevantly, the planning principle was revised in this decision, in order to remove numerical elements, as explained within the judgment. The overshadowing planning principle provides the following principles, at paragraph 144: + The ease with which sunlight access can be protected is inversely proportional to the density of development. At low densities, there is a reasonable expectation that a dwelling and some of its open space will retain its existing sunlight. (However, even at low densities there are sites and buildings that are highly vulnerable to being overshadowed.) At higher densities sunlight is harder to protect and the claim to retain it is not as strong. + The amount of sunlight lost should be taken into account, as well as the amount of sunlight retained. + Overshadowing arising out of poor design is not acceptable, even if it satisfies numerical guidelines. The poor quality of a proposal's design may be demonstrated by a more sensitive design that achieves the same amenity without substantial additional cost, while reducing the impact on neighbours. + For a window, door or glass wall to be assessed as being in sunlight, regard should be had not only to the proportion of the glazed area in sunlight but also to the size of the glazed area itself. Strict mathematical formulae are not always an appropriate measure of solar amenity. For larger glazed areas, adequate solar amenity in the built space behind may be achieved by the sun falling on comparatively modest portions of the glazed area. + For private open space to be assessed as receiving adequate sunlight, regard should be had of the size of the open space and the amount of it receiving sunlight. Self-evidently, the smaller the open space, the greater the proportion of it requiring sunlight for it to have adequate solar amenity. A useable strip adjoining the living area in sunlight usually provides better solar amenity, depending on the size of the space. The amount of sunlight on private open space should ordinarily be measured at ground level but regard should be had to the size of the space as, in a smaller private open space, sunlight falling on seated residents may be adequate. + Overshadowing by fences, roof overhangs and changes in level should be taken into consideration. Overshadowing by vegetation should be ignored, except that vegetation may be taken into account in a qualitative way, in particular dense hedges that appear like a solid fence. + In areas undergoing change, the impact on what is likely to be built on adjoining sites should be considered as well as the existing development. 19Mr Patterson also referred to the Court's general impact planning principle in Pafburn v North Sydney Council [2005] NSWLEC 444 (general impact planning principle). The five themes (common to planning principles dealing with assessment of impact on neighbouring properties) identified in the planning principle, at paragraphs 20-24 are: 20 Five common themes run through the above principles. The first theme is that change in impact may be as important as the magnitude of impact. Where a north-facing living room receives uninterrupted sunlight all day in mid-winter, the occupant is likely to perceive its reduction to three hours as a major loss of amenity, despite the fact that the three hours of retained sunlight complies with the rule of thumb in most development control plans and the RFDC. 21 The second theme is that in assessing an impact, one should balance the magnitude of the impact with the necessity and reasonableness of the proposal that creates it. An impact that arises from a reasonable or necessary proposal should be assessed differently from an impact of the same magnitude that arises from an unreasonable or unnecessary proposal. For example, adding a balcony to the living room of a dwelling that has no other balconies is a more reasonable proposal than adding a balcony to a dwelling that already has six balconies. 22 The third theme is that in assessing an impact one should take into consideration the vulnerability of the property receiving the impact. A north-facing window 900mm from the side boundary is much harder to protect against loss of sunlight or views than a similar window 10m from the front or rear boundary. 23 The fourth theme is that the skill with which a proposal has been designed is relevant to the assessments of its impacts. Even a small impact should be avoided if a more skilful design can reduce or eliminate it. 24 The fifth theme is that an impact that arises from a proposal that fails to comply with planning controls is much harder to justify than one that arises from a complying proposal. People affected by a proposal have a legitimate expectation that the development on adjoining properties will comply with the planning regime.

Public Interest 20According to the Council's contentions, the proposal will provide an undesirable precedent in determination of future applications and the proposal is not in the public interest on the basis of the content of the submissions received.

Findings 21The Federation style cottage at 61 Liverpool Street, Ashfield is a local heritage item. The Council's Heritage Advisor's referral comment regarding the proposal is 'no objection' (at tab 5 of Exhibit 1). The only implication of the heritage listing of 61 Liverpool Street for this matter is that any future development of the site is likely to retain the majority of the fabric of the existing cottage and be of a similar scale. 22The amendment to the development application proposal to delete a single room midway along the western façade of the top storey was, in my opinion, a clumsy and simplistic response to the issue of overshadowing of the neighbouring property, which has resulted in a building envelope with a 'missing tooth'. It appears to be a solution proffered as a quick fix by the applicant to remove a matter of concern to the Council during the development assessment process.

SEPP 65 23The Council's Statement of Facts and Contentions includes, with regard to overshadowing of the adjoining property, the contention that the proposal does not satisfy either Principle 7 Amenity of SEPP 65 or the RFDC part 01, Local Context. The applicant contends that SEPP 65 does not apply to the proposal. 24Principle 7 of SEPP 65 refers to the design of the proposed residential flat building and does not address the amenity of surrounding properties. It is therefore not applicable to the issue of overshadowing a window of an adjoining property, as claimed in Council's contention regarding overshadowing. 25The RFDC, prepared by NSW Department of Planning and Infrastructure, contains detailed information about how development proposals can achieve the 10 design quality principles identified in SEPP 65. Part 1 of the Residential Flat Design Code includes a section titled Primary Development Controls, of which one is Building Separation, which states: Suggested dimensions within a development, for internal courtyards and between adjoining sites are:

• up to four storeys/12 metres -12 m between habitable rooms/balconies 26Given that development consent has been granted for the building envelope of the development and the proposal before the Court is for an additional room within the existing building envelope and not extending beyond it, the question of separation between the development and the adjoining cottage has already been addressed by the development assessment process undertaken by Council for the original development application.

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.

Public Interest 37I have given no weight to the objection of the residents at 2 Oaklands Ave, Summer Hill, as their property is a sufficient distance from the site so as to ensure they are not affected by the addition of a single room. Whether there are 39 residents or 40 residents residing at 59 Liverpool Road will not have any significant impact on their amenity. 38I do not find that the proposal will set a precedent for future development proposals and overshadowing of adjoining properties. Each individual application should be assessed on its own merits.

Conclusion 39Having regard to the relevant planning controls and the evidence provided, I find that the proposal would have an acceptable impact on the amenity of 61 Liverpool Road and that it should be given consent. 40The Conditions of Consent, at Condition 10, address the requirement for the window of the proposal to be fixed and translucent for the lower section 1.5m from the ground level, in order to address the issue of potential overlooking. The condition should read 'from finished floor level' as the term 'ground level' could be ambiguous.

Orders 41The orders of the Court are: 1.The appeal is upheld. 2.Development Application No. 10.2010.18.2 for a single room and bathroom addition to an approved boarding house currently under construction is granted consent, subject to conditions at Annexure A. 3.Condition 2 of the original consent is to be modified to state: The boarding house shall comprise no more than 32 rooms and accommodate no more than 40 persons at any time. Management of the premises must at all times monitor the number of rooms and persons within the building to ensure that the maximum numbers are not exceeded. 4.Condition 10 of the Conditions of Consent is to be modified to state: The lower sections of the window (1.5m from finished floor level) for proposed boarding room No. 26 shall be fixed and translucent. 5.The exhibits, other than exhibits 2A, tab 1 of 1, 3, 5 and A are returned. Susan O'Neill Commissioner of the Court

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: 10 April 2012