Meyer v Ashfield Municipal Council

CASES CITED: Parsonage v Ku-ring-gai [2004] NSWLEC 347 Pafburn v North Sydney Council [2005] NSWLEC 444

DATES OF HEARING: 03/07/2008 and 04/07/2008

APPLICANT Mr P. Brown and Mr J. Cole, solicitors of Home Wilkinson Lowry, Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr S. Patterson, solicitor of Wilshire Webb Staunton Beattie Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11340 of 2007 Paul Meyer v Ashfield Municipal Council This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT 1 This matter began as a s 34 Conciliation Conference on 26 February 2008 with no agreement being reached. As a consequence of that initial conference, amended plans and supplementary materials were provided to the council for the purpose of re-notification and further consideration. The conciliation conference resumed on 3 July 2008 and no agreement having been reached the parties agreed to me hearing and disposing of the proceedings pursuant to s 34 (4)(b)(ii) of the Land and Environment Court Act 1979.

2 The development as now proposed involves the renovation and restoration of the existing heritage item on the site known as Lyngrove and the construction, at the rear, of a garage with studio above, the construction of a new three-bedroom two level dwelling house. Subdivision is also proposed creating a new lot for the proposed dwelling house at the rear of the site opposite the proposed garage/studio. 3 The site at 79 Bland Street, Ashfield is irregular in shape and has an area of just over 2000 square metres. It has a frontage of about 23 metres and a rear boundary of about 69 metres. It is this width at the rear that provides for the creation of the proposed new lot that is to have an area of 303 square metres plus and access way of 45 square metres, a total of 348 square metres.

4 The site is included in the 2(a) Residential Zone under the Ashfield Local Environmental Plan 1985 and the various aspects of the proposal are permissible with development consent. Also applicable to the site is council's Development Control Plan No. 1 - Dwellings in Residential Zones and Development Control Plan - Heritage Conservation. Whilst the residential DCP has been superseded it remains relevantly applicable by virtue of the savings clause in the replacement development control plan. 5 As a result of the notification of the application, a number of objections were received from neighbouring property owners in Chandon Street and Charlotte Street whose properties adjoin the subject land. I shall come to these concerns later.

6 During the hearing I was informed that the council resolved on 10 June 2008 that, for the purposes of this case and any conciliation, a number of matters should be taken into account. These include the deletion of the second level on the boundary side of the proposed house and the reduction in the number of car spaces in the garage/studio and the proposed house. The applicant declined to make these changes observing that a number of significant modifications had already been made.

7 The remaining issue of concern as identified in Council's resolution is that it objects to the proposal on the basis of: Adverse amenity impacts arising from the amended plans through excessive overshadowing of adjoining properties and adverse visual impacts from the bulk and scale of the proposed buildings. 8 The relevantly adversely affected properties were not specifically identified in the council's resolution but in submissions made on behalf of the council particular reference was made to the properties of the residents who gave evidence during the hearing. In particular, concerns as to overshadowing and adverse visual impacts were described for the six townhouses being units 21 - 26 at 32 Chandos Street and the detached dwelling house at 71 Charlotte Street.

9 The relevantly applicable controls in the LEP include the promotion of the orderly and economic development of land. Clause 11 sets a minimum allotment size for a hatchet shaped lot of 700 square metres and because this development standard has not been complied with, on objection under State Environmental Planning Policy No. 1 - Development Standards has been provided.

10 The LEP also contains requirements in relation to heritage items but no issue in this regard has arisen, taking into account that Mr R Moore the heritage consultant is now satisfied with the various aspects of the modifications to the heritage item as well as the agreed programme of conservation works that are agreed by the applicant to be included as part of the conditions of consent. 11 There are numerous provisions of the DCP that relate directly or indirectly to the issues of overshadowing and visual impacts.

12 The general objectives of the DCP are concerned to ensure the creation of good living environments and to ensure that new development does not cause loss of residential amenity. The more particular housing density controls seek to achieve a quality of life and amenity for existing and future residents by setting standards for floor space ratio, subdivision and dwelling size and the encouragement of a mix of dwelling types. The minimum lot size for dwelling houses in the LEP is repeated.

13 Building envelope, siting and solar access controls are concerned with lot size and shape solar access visual and acoustic privacy and the avoidance of development that might be overbearing on neighbouring properties. This is to be achieved in part at least by optimising competing considerations in the design and siting of new buildings. Site and rear setbacks will be determined by neighbour amenity and urban design considerations. 14 As for building height the maximum number of levels in the building is two. The acoustic privacy requirements require that new development should internalise adverse effects associated with plant and equipment and vehicle noise. Views and outlook from neighbouring properties are to be maintained wherever possible.

15 The Solar access provisions contain standards for ensuring that adjacent properties including courtyards do not have such access reduced below certain levels.

16 The applicant has now provided hourly (9 a.m.-3 p.m.) shadow diagrams depicting the extent to which the proposed house will overshadow the courtyards of the above-mentioned townhouses. Mr Kennan the council's town planning consultant accepts these diagrams as being correct. 17 Mr Kennan has produced a table of compliance based on the DCP requirements that examines each of the six townhouses for each of the seven hours between 9 a.m. and 3 p.m. at the winter solstice. It reveals that townhouses 24 and 26 achieve compliance and that townhouse 23 does not comply at 3 p.m. townhouse 25 does not comply at 2 p.m. and 3 p.m., townhouse 21 does not comply at 11 a.m. 12 p.m. and 1 p.m. and townhouse 22 does not comply at 12 p.m. 1 p.m. 2 p.m. and 3 p.m.

18 Mr Kennan notes that the objective of the overshadowing control is not stated clearly in the DCP but in his opinion the objective is to ensure that shadow cast by any new development maintains a satisfactory level of solar access not only to itself but to the usable areas of private open space of adjoining development.

19 In this context he notes that the affected courtyards comprise two distinctive areas: a deck adjacent to the dwellings themselves and the landscaped garden areas below the level of these decks. In his opinion it is imperative that solar access to the decks be maintained. In this context he notes that the existing solar access to the deck areas of all of the townhouses is maintained between the hours of 9 a.m. and 1 p.m. Whilst the deck areas of townhouses 21, 22 and 25 are affected, reasonable solar access to those decks is maintained. Townhouse 21 receives good quality solar access at 3 p.m. Whilst the decks for townhouses 22, 23, 25 and 26 are affected solar access is nevertheless maintained for a minimum of three hours as required by the DCP. 20 Subjectively, Mr Kennan concludes that, at the winter solstice a satisfactory level of solar access to the deck areas of all of the townhouses is provided notwithstanding that there is some non-compliance with the council control. The minor non-compliances are acceptable and the variation to the standard is warranted. As is usual practice, shadow impacts from vegetation (other than hedge screens that do not exist here) are not taken into account.

21 The overshadowing question together with all of the other merit matters were considered by a council town planner in the report to the council dated 10 June 2008. In that report the general compliance with the DCP is noted and in particular observes that the extent of the overshadowing non-compliance is not of such significance as to warrant refusal of the application. 22 The residents who gave evidence plainly do not agree with Mr Kennan in relation to solar access. Taking into account that their courtyards comprise their only private open space these spaces are of considerable importance to them especially in terms of solar access in winter. These courtyards are used for entertaining, gardening and relaxing. In addition to Mr Kennan's contention that the decks are important the residents also believe that the adjoining garden areas were just as important. 23 In Parsonage v Ku-ring-gai [2004] NSWLEC 347 the planning principle dealing with impact on solar access suggest that numerical guidelines be applied with a great deal of judgment and that impacts on neighbours sunlight should be assessed in the context of reasonable development expectations of the proposal. In my opinion this is not a poor design and taking into account the concerns of the residents and the expert opinions of Mr Kennan and the council town planner I am satisfied that a reasonable balance has been achieved.

24 In Pafburn v North Sydney Council [2005] NSWLEC 444 a similar balanced approach is sought and in this context I do not accept that the proposal is either unreasonable or unnecessary. In this regard I note that there are no relevant non compliances with the planning controls such as height, setbacks and floor space ratio and I agree with Mr Kennan on the basis of his reasoning that the impacts are not so great as to require refusal of the application

25 I also note from some photographs shown to me and some of the objections, that, generally in the middle of the day there is good solar penetration into the townhouse dwellings themselves. Whilst a number of residents were concerned that the loss of natural light there was no objective evidence to support this contention to the effect that it might be determinative of the application. 26 A number of residents expressed concerns in relation to the appearance of the proposed dwelling house particularly its bulk and scale and the manner in which it will intrude into their outlook. Notwithstanding that the site is smaller than the LEP might otherwise require I do not find these concerns to be determinative. I have reached this conclusion taking into account the proposed building setbacks (noting that there are no numerical requirements in the planning controls), its compliance with the two-storey height control and its comfortable compliance with the floor space ratio requirement. Despite the building having few windows at the upper level, in the interest of privacy, I do not find it to be unattractive or unacceptable. The fact that the building will be able to be seen is certainly not a reason for refusal.

27 Finally, whilst the residents raised a numerous concerns including those relating to noise car parking and privacy, I heard no evidence to persuade me that these are matters of any determinative significance. 28 In relation to the lot size and the SEPP 1 objection I note that in the council officers report concluded that this objection can be supported, taking into account that the proposed dwelling house is consistent with the area, its size and character being generally acceptable. Taking into account its internal and external amenity and the various other controls that are applicable and notwithstanding the significance of the non-compliance, the variation sought is not unreasonable in its context. This context includes the fact that the locality is characterised by a mix of large and small allotments. In these circumstances I am satisfied that the SEPP 1 objection should be upheld.

29 Whilst I do recognize that there will be impacts on neighbouring dwellings I am satisfied that, as submitted on behalf of the applicant, weight should be given to the fact that the applicant is to spend a considerable amount of money in restoring the heritage item. In my opinion this is a significant public interest consideration and on balance by taking this into account together with the various requirements of the DCP, I have not been persuaded that the application should be refused. 30 I have therefore decided that the appeal should be upheld and conditional development consent be granted. The conditions will be those agreed between the parties.

      T A Bly
      Commissioner of the Court
      ljr

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