Maley and Anor v Leichhardt Municipal Council

KEY ISSUES: DEVELOPMENT APPLICATION :- Dwelling extensions, excessive bulk, overshadowing

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Leichhardt Local Environmental Plan 2000

APPLICANT Mr C Maley (Solicitor) SOLICITOR Maclarens Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Ms J Walsh (Solicitor) SOLICITOR Pikes Lawyers

JUDGMENT: tTHE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Background. 1 This appeal was lodged against council's refusal of a development application for alterations and additions to an existing cottage at 20 Crescent Street, Rozelle. The issues identified for the appeal are summarised as follows: o Excessive bulk and resultant overshadowing of adjoining open space areas. o Inconsistent with the urban form guidelines that apply in this heritage conservation area. o Unsatisfactory design of the front fence. o Public interest matters. The site 2 This site is described as Lot 2 in DP 224795 and is situated near the intersection of Crescent and Parsons Streets. It has a total area of 190sq m, a splayed street frontage of 4.86m and side boundaries of approximately 40m. As a consequence of its situation, the rear boundaries of 4 residential properties facing Parsons Street back onto the sites southern boundary.

3 There is an existing single storey cottage with metal, gable roof on the site. It forms the southern half of a semi-detached pair. There is also a detached single garage adjacent to the rear (laneway) boundary.

4 The immediate locality is mixed use in character with industrial and other non residential uses located to the west/south west across Crescent street and to the rear, across Moore lane. The Parsons Street properties to the south are generally in residential use comprising both single and 2-storey dwelling houses. The rear gardens of these properties include a variety of ancillary domestic structures, such as various forms of sheds. The proposal 5 This proposal is to maintain the 2 existing bedrooms at ground level and extend the existing building into the rear yard area and construct a new laundry, bathroom, kitchen and lounge opening onto a timber deck.

6 Over part of this ground floor extension, it is proposed to construct a new first floor containing a study, master bedroom with en-suite. The application also proposed some alterations to the front fence.

Planning controls 7 The following controls are relevant: o Leichhardt Local Environmental Plan 2000; under which the site is within the residential zone and the development is permissible with consent. The site is located within the Balmain Heritage Conservation Area. Clause 19 (2) allows a maximum FSR of 0.7:1. Clause 19(3) requires a minimum landscaped area of 40% of the site. o Leichhardt DCP 2000; under which the site is within The Valley Distinctive Neighbourhood, Rozelle. 8 To comply with the description of this neighbourhood and 'desired future character' the following controls and guidelines apply: .1 Urban Form - Conserve and complement the existing styles of housing with special regard to the simple timber cottages and Victorian terraces. - Conserve and complement the established streetscape with regard to setbacks, street trees and general lack of driveway crossings. - Buildings should step with the slope in order to facilitate view sharing. .2 Building Elements - Preserve the consistency and simplicity of built form, style and materials of the neighbourhood. - Complement the existing pitched, hipped or gabled roof forms as well as setbacks and fencing styles prevalent in each street. - Conserve stone cottages and stone walls throughout the neighbourhood. - Maintain the established open low timber and iron picket front fences. .3 Building Envelope - The building wall height generally applying to the neighbourhood is 3.6m. .4 Side setbacks - Clause B1.2 provides for minimum side setbacks based on a building height plane projected at an angle of 45 degrees from a point 2.4m above ground level. 9 Other controls that apply to the development are: - Draft Leichhardt LEP 2000 - Amendment X (Conservation Areas and Heritage Provisions). - Draft Leichhardt LEP 2000 (pre-1850 Heritage Items).

The evidence 10 Detailed planning evidence was presented by Ms D Laidlaw (Council's consulting planner) and Mr A Ludvik (Applicant's consulting town planner) in the form of a joint report

11 Objections were also expressed by a number of the neighbours about: o Excessive bulk of the alterations and resultant overshadowing of the rear yards of No 23 and 25 Parsons Street. o Privacy impacts. o Impact on existing vegetation.

12 The main issue in this matter concerns the amenity impacts of the proposal on the neighbouring properties, particularly the visual bulk of the 1st floor extension and the resultant overshadowing of the neighbouring yards. Taking into account the suite of controls that apply to the site, Ms Laidlaw does not support this application because she considers that a better outcome would be achieved by the deletion of the first floor and instead, further extending the dwelling at ground level.

Building bulk 13 With regard to the excessive bulk issue, Mr Ludvik relies on the FSR as being an accepted measure. As the proposal has an FSR of 0.65:1, which includes the garage, he considers this comfortably complies with the maximum FSR control of 0.7:1, thereby not introducing excessive bulk.

14 Another index for the bulk and scale of buildings concerns the building height. Mr Ludvik says that the overall height of the extension has been minimised on the basis of 2.5m floor to ceiling heights and the provision of a flat roof. Furthermore, this new 2-storey element is only 7.41m long, with the roofline of the addition only extending some 10.9m past the existing roofline.

15 Insofar as the extension does not comply with the side setback provisions of cl B1.2, Mr Ludvik says that this compliance is not possible on narrow lots such as the subject lot. Notwithstanding this, he supports the proposal as being reasonable in the circumstances and says that the extent of the view of the addition from No 23 and 25 Parsons Street is largely restricted because: o There are no living room windows at the back of No 23, o Views from the rear of No 25 are significantly restricted by the existing tree in the north-eastern corner. o The view impact from the rear yard of No 23 needs to be considered in the context of the shade structure that has been constructed in the north-eastern corner of that property.

16 Against this, Ms Laidlaw says the proposal will result in an articulated wall around 5.4m high and 11m long that will dominate the outlook across the rear garden area from No 23 and 25 Parsons Street. Also that: "The extent of open aspect (ie of sky) that is replaced by built form will have an impact far in excess of that currently presented by the single storey additions or by the more distant two storey developments at 14 - 16 Crescent Street. The severity of this impact is unreasonable in my view." 17 Ms Laidlaw disagrees with Mr Ludvik's assessment, saying that the FSR is a crude control only, particularly when applied to small sites. Accordingly she does not consider determining weight should be given to this proposals FSR compliance, instead she prefers a single level extension with the same FSR, would have reduced amenity impacts and be more acceptable.

18 Furthermore, whilst the 'heads of consideration' in Part B1.2 allows some discretion depending on whether "the potential impacts on amenity of adjoining properties, in terms of sunlight and privacy and bulk and scale, are minimised", the proposal's non-compliance with the side setback does not satisfy this criterion. Ms Laidlaw says that even though the development adopts minimum floor to ceiling heights, this still needs to be balanced against the context that it is a 2 storey extension to a single storey cottage, where a single storey extension, even with perhaps greater ceiling heights, would not have the same impacts.

19 Apparently the single level extension preferred by Ms Laidlaw would likely cause in a small deficiency with the private open space provisions, but she considers this still results in a reasonable outcome. However a consequence of this ground level extension is that it would extend over the existing sewer main. According to the applicant this would likely incur excessive construction costs in protecting the main and require ancillary works on the adjoining properties.

Overshadowing 20 The proposed 2-storey extension would cause some additional overshadowing to No 23 and No 25. Parsons Street as assessed by the planners on the following basis: " 23 Parsons Street * The rear yard, which has an area of approximately 93.m2 currently receives solar access to an area of between approximately 14m2 and 64.m2, between 9am and 3pm at the winter solstice, excluding the impact of any shadows cast by: * the shade structure located in the north-eastern corner of the yard; and * the 10 m high tree in the north-eastern corner of 25 Parsons Street. * This represents between 15% and 69% of the yard area. * The yard currently receives solar access to at least 50% of its area for approximately 3.75 hours between approximately 9.45am and 1.30pm. * The proposal will reduce solar access to the yard to between 36.2m2 to 41.1 m2 for the 3 hours between 9am and 12 noon, which represents between: * 38.7% and 43.9% of the yard area, meaning that at no time of the day will 50% of the rear yard be in sunlight at midwinter ; or * a reduction of between 1.9% and 43.5% of the area to which solar access is currently available. 25 Parsons Street * The rear yard, which has an area of some 29.8m2, receives solar access to between nil and 10.9m2, between 9am and 3pm at the winter solstice, excluding: * the impact of any shadows cast by the 10m high tree in the north-eastern corner of the yard; and any fencing constructed adjacent to the legal boundaries of the land and * the area at the rear of 27 Parsons Street which is currently being used as yard area associated with 25 Parsons Street. * There is a strip of land approximately 1.36m wide between the northern boundary of 25 Parsons Street and the southern boundary of 20 Crescent Street which is in separate but unidentifiable ownership that has been fenced and included as part of the yard of 25 Parsons Street. * The currently available solar access represents between 0% and 36.6% of the yard area, meaning that the rear yard currently does not receive solar access consistent with the control contained in Leichhardt DCP 2000. * The proposal will reduce solar access to the yard to between 0.4m2 and 2.9m2 for 3 hours between 10 am and 1 pm, which represents between: * .3% and 9.7% of the yard area; or * a reduction of between 20% and 81.7% of the area to which solar access is available (AL's assessment). In DL's assessment, the reduction is around 80% over all of this period, with the arguable exception of 1 pm where both existing and proposed solar access is in both cases negligible. * The rear yard of 25 Parsons Street will receive little (or in DL's opinion, no) effective sunlight outside of these hours at midwinter (ie before 10am and after 1pm).

21 Consequently, the planners agreed that the proposed development will not effect the level of solar access enjoyed within the dwellings situated on 23 and 25 Parsons Street and the only significant effect is overshadowing of the rear yards of those properties. This overshadowing is subject to the provisions of Part B3.1 of DCP 2000, which states: 'Where solar access already exists to the private open space of adjacent dwellings, ensure it is maintained over a minimum of 50% of the private open space for a minimum period of 3 hours between 9.00 a.m. and 3.00 p.m. at the winter solstice'. 22 However the planners disagreed on the interpretation of this control. According to Mr Ludvik, this control requires solar access not to be reduced by more than 50% of the area, which currently enjoys solar access for a minimum of 3 hours between 9am and 3pm at the winter solstice. He says this is consistent with the acceptable solutions contained in Amcord.

23 On this basis, Mr Ludvik considers that the level of solar access to No 23 is satisfactory. Also, that No 25 still retains an unaffected area for clothes drying facilities and this area is affected by the existing tree and the resultant overshadowing is not unreasonable in the circumstances. Accordingly, he supports this position by reference to the planning principle in Parsonage v Ku-ring-gai Council, which contains guidelines for balancing the impacts on neighbouring properties.

24 However, Ms Laidlaw does not support this approach. Instead, she says that the control should be interpreted on the basis that the proposed shadow impact is measured as a proportion of the overall "private open space" area. This approach is to maintain a reasonable level private open space that is not shadowed. Otherwise, Mr Ludvik's interpretation could allow for a series of developments to progressively reduce the available sunlight by 50%. Consequently this would not be consistent with the DCP principle "to minimise overshadowing of the habitable rooms and private open space of existing housing".

25 Ms Laidlaw says that this is the way the control is regularly applied by council. Having considered these competing positions, it seems to me that Ms Laidlaw's approach more appropriately achieves the development control principles.

26 Insofar as some other issues were raised, including alteration to the front fence, I am satisfied they are of less importance than the building bulk and overshadowing issues and could be covered by conditions in any consent granted.

Conclusions 27 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. The development of this property is constrained by its narrow width and east-west orientation with 4 rear yards forming its common southern boundary.

28 Accordingly the DCP contains a detailed suite of controls, which endeavour to minimise the potential impacts on adjoining properties, in terms of sunlight and privacy and bulk and scale. Applying these controls to the subject context, it is apparent that the orientation of the subject dwelling is quite sensitive to the amenity of the adjoining No 23 and No 25/27. These properties have their main, northerly outdoor areas facing the proposed extension, which impacts on their visual amenity and solar access.

29 Insofar as reference was made to other surrounding development, I give this diminished weight and instead consider the merits of the proposal should be assessed on the basis of the current controls in the DCP. Likewise, I give little weight to the submissions concerning other development controls on solar access that might apply in other local government areas.

30 I have also taken into account the submissions regarding the various planning principles that have some relevance to the subject case. Firstly, reference was made to the principles to be considered when assessing the impact on neighbouring properties were set out by Roseth SC in Pafburn v North Sydney Council [2005] NSWLEC 444.

The Senior Commissioner said: Planning principle: criteria for assessing impact on neighbouring properties 26. The following questions are relevant to the assessment of impacts on neighbouring properties: - How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained? - How necessary and/or reasonable is the proposal causing the impact? - How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? - Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours? - Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal? 31 Adopting and applying these principles to the present case, I am inclined to rely on the opinions of Ms Laidlaw that as the proposal does not comply with the side boundary setback and incorporates the offending 1st level extension, it then causes a significant adverse loss of solar amenity and visual amenity to the neighbouring properties. In this regard, I consider it reasonable that consideration be given to other design alternatives, particularly the ground level extension suggested by Ms Laidlaw, to achieve a reasonable balance. However no detailed evidence was presented in this regard.

32 In Parsonage v Ku-ring-gai [2004] NSWLEC 347, Roseth SC dealt with the planning principles concerning the impact on solar access of neighbours. The relevant paragraphs of the decision read: 6. The Australia-wide resource document for residential development, AMCORD , suggests that a development should not reduce the sunlight received by the north-facing windows of living areas of neighbouring properties to less than 3 hours between 9am and 5pm at the winter solstice. The NSW-specific Residential Flat Design Code , which applies only to apartment buildings of three storeys and over, recommends 3 hours of sunlight to the living rooms and private open spaces of 70% of apartments between 9am and 3pm, reducing it to 2 hours in dense urban areas. The Code does not specifically deal with the impact on sunlight received by neighbouring buildings, though one may assume that the same criteria apply. Where local controls contain numerical guidelines, they usually require the retention for neighbouring properties of 3-4 hours of sunlight on living room windows and private open spaces between 9am and 3pm at the winter solstice. 7. The Court must, of course, take into account whatever guidelines are relevant to an application. However, numerical guidelines should be applied with a great deal of judgment. Consider a dwelling that now receives sunlight all day. Taking away that sunlight from 9am till noon would satisfy most guidelines; and yet the occupants of such a dwelling are likely to perceive it as a devastating impact on their dwelling's amenity. The other side of the coin is that the impact on a neighbour's sunlight must be assessed in the context of the reasonable development expectations of the proposal and the constraints imposed by the topography and the subdivision pattern. Preserving 3 hours of sunlight on a neighbouring site may require an unreasonable reduction in the development potential of the proposal. 8. Numerical guidelines dealing with the hours of sunlight on a window or open space usually 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. Numerical guidelines should therefore be applied with the following principles in mind, where relevant: - 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. - To be assessed as being in sunlight, the sun should strike a vertical surface at a horizontal angle of 22.50 or more. (This is because sunlight at extremely oblique angles has little effect.) For a window, door or glass wall to be assessed as being in sunlight, half of its area should be in sunlight. For private open space to be assessed as being in sunlight, either half its area or a useable strip adjoining the living area should be in sunlight, depending on the size of the space. The amount of sunlight on private open space should be measured at ground level. - 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.

33 Adopting and applying those principles to this case, it seems to me that the proposed non-complying 1st level extension will significantly reduce the solar access to the north facing, rear yard areas of No 23 and particularly No 25/27, significantly below that prescribed in Part B3.1 of the DCP. Because of the existing lot configuration and orientation of buildings, I accept that the opportunity to experience a reasonable level of solar access is an important expectation for the occupants of these dwellings. Compliance with the current controls would likely achieve a more balanced outcome.

34 I note that submissions were made regarding other merit decisions at a variety of other properties. However in the absence of establishing some specific relevance to the subject site, I do not consider they have any precedentl value and give them little weight.

35 In the ultimate, I rely on the evidence of Ms Laidlaw that this non-complying extension, in particular the 1st floor level, which does not comply with the side boundary setbacks, causes unreasonable shadowing of the already restricted open space areas of the adjoining No 23 and No 25/27 Parsons Street. As such it does not demonstrate reasonable compliance with the solar access controls and amenity impact considerations.

36 As I have mentioned, the existing lot layout and orientation constrains future development of the subject property. Consequently, I accept that neighbours could also have an expectation that any development would generally comply with the controls. In these circumstances, the proposed 1st floor level would not be allowed and consequently there would not be a new structure "that dominates the outlook across the rear garden from No23 and 25 Parsons Street", as stated by Ms Laidlaw. This visual impact of increased bulk is also a negative aspect of the proposal, in my assessment. 37 Notwithstanding this, it does appear that there are other opportunities for the alternative extension of this single level cottage, along the lines suggested by Ms Laidlaw, which would be more compatible with the character of the area. I am satisfied that such an extension would likely result in a more desirable amenity outcome, as envisaged by the suite of development controls in the DCP. It is also likely to result in more orderly development, if it is considered in conjunction with the alterations mentioned for the adjoining semi.

38 Consequently, this application is refused on the grounds of non-compliance with the side boundary setbacks and resultant adverse solar impact on the private open space areas of the neighbouring properties.

Court orders 39 The Court orders that: 1 The appeal is dismissed. 2 Development application No D/2008/396 for alterations and extensions to the cottage at 20 Crescent Street, Rozelle is refused. 3 The exhibits be returned except 2 and A.

      R Hussey
      Commissioner of the Court
      ljr

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