Pafburn v North Sydney Council

Applicant: Mr P Tomasetti, barrister instructed by Mr D Tudehope of O'Hara Co LEGAL REPRESENTATIVES: Applicant: Ms H Irish, barrister instructed by Ms M Tregoning of Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11071 of 2004 Pafburn Pty Ltd v North Sydney Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the deemed refusal by North Sydney Council (the council) of a development application to demolish the existing house and erect a residential flat building containing 19 apartments on lot B DP370405, known as 197 Walker Street, North Sydney.

The site 2 The site is on the eastern side of Walker Street, between Ridge and Hampden Streets. It is a battleaxe allotment with an area of 1,400m2 excluding the access handle. A brick house now stands on the site. The southeast part contains vegetation and rock outcrops. 3 The site is in the North Sydney Centre Planning Area and within that area, in the Hampden Neighbourhood. It is not within a conservation area. To the north, the site adjoins the Wenona School grounds, on which stands a three-level structure on the boundary containing an indoor swimming pool. Further north is a 14-storey apartment building at 95 Ridge Street. To the west the site adjoins a nine-storey apartment building at 199 Walker Street. To the east is the Warringah Expressway. To the south the site adjoins 191-195 Walker Street, which contains an eight-storey apartment building close to Walker Street (and distant from the site) and a five-storey apartment building close to the Expressway.

The proposal and its history 4 The applicant proposes to demolish the existing house and erect a five-storey apartment building containing 19 dwellings with basement parking. 5 The applicant lodged the application in June 2004. Following notification, the council received 34 submissions. The applicant lodged the appeal against deemed refusal in September 2004. On 27 September 2004 the council resolved to defend the appeal. With the consent of the parties, the Court appointed three experts: Mr R Chambers, a town planner, Mr C Hallam a traffic consultant, and Mr J Mills, an expert on assessing solar access and view loss. The matter was set down for hearing in April 2005; however, the date was vacated to allow the applicant to prepare amended drawings that required re-notification. At a case management meeting on 13 July 2005 the Court gave leave to the parties to adduce evidence from one expert each, in addition to the three Court-appointed experts. The council relied on the evidence of its town planner, Mr G Mossemenear, while the applicant relied on the evidence of Associate Professor J Toon, an architect, town planner and urban designer. Since Mr Mills and Mr Hallam were not required for cross-examination, only Mr Chambers, Mr Mossemenear and Associate Professor Toon gave concurrent evidence during the hearing.

Relevant planning controls 6 Local Environmental Plan 2001 (LEP 2001) zones this site Residential C, a zone in which residential flat buildings are permissible with consent. The relevant parts of LEP 2001 are its General Aims (cl 2); Specific Aims (cl 3); Building Height (cl 17); Building Height Plane (cl 18); and Landscaped Area (cl 20). 7 Development Control Plan 2000 (DCP 2000) applies to the area, including the character statement for the Hampden Neighbourhood. State Environmental Planning Policy - Design Quality of Residential Flat Buildings (SEPP 65) governs the design of apartment buildings. The Residential Flat Design Code (RFDC) interprets the principles of the Policy into practical design guidelines and "rules of thumb". State Environmental Planning Policy 1 - Variation of Development Standards (SEPP 1) applies. The applicant lodged three Objections under SEPP 1 to the height, building height plane and landscaped area.

The issues 8 The council's Statement of issues contained nine issues. At the beginning of the hearing Mr Mossemenear defined the three live issues as follows: · Is non-compliance with the 12m-height control justified? · Is the internal amenity acceptable? · Is the survival of the Norfolk Island Pine on 199 Walker Street close to the access ramp assured?

The objectors' concerns 9 In addition to reading the letters of objectors, the Court heard, during the visit to the site, the evidence of Ms E Ryan, strata manager of 199 Walker Street, and Ms C Gray, business manager of Wenona School. Ms Ryan raised the following concerns: · the proximity of the access ramp to the Norfolk Island Pine on the No 199 property; · the impact of queuing and stopping traffic on the access way; · the increase in traffic on Walker Street; and · view loss. 10 The Norfolk Island Pine is an issue in the case and discussed below. The Court-appointed traffic expert, Mr C Hallam, assured the Court that Ms Ryan's concerns about traffic were not valid. Mr Chambers and Mr Mossemenear agreed that there was no significant view loss from the apartments in No 199. Mr Chambers supported this statement with a photograph taken from the living room of the most vulnerable apartment on level 4. 11 Ms Gray had two major concerns. First she feared that the north-looking apartments would overlook the pool, pool deck and play area of the school. Second she was concerned that the development would impact on the development potential of the school. In my opinion, a certain level of overlooking is inevitable if the site is to be developed at all. It could be avoided only by preventing the applicant from providing windows to the north. The Wenona School has built its indoor pool and play area on the common boundary, which is a highly vulnerable position. If overlooking of a play area is a concern (and I do not think that it should be), the school should take its own measures to protect itself against it. As regards the second concern, I note that there are no current plans for redevelopment. If such plans eventually come to be realised, the setback and height of the proposal would not prevent the School from achieving a reasonable development within the constraints imposed by LEP 2001.

External impact of non-compliance with height 12 Clause 17 of LEP 2001 establishes a height limit of three storeys and 12m for the site. It was common ground between the experts that it was possible to design a four-storey building with a 12m height, and that such a building would be acceptable to all experts (though, presumably, it would still require an Objection under SEPP 1). However, the proposal is for a five-storey building (with an additional dwelling at basement level), which clearly exceeds the 12m-limit. While I cannot glean from the evidence the exact height of the building in the latest amendment; given that there are five floors above ground, the variation is likely to be in the order of 3m, or one floor. The question for the Court is whether a variation of the height development standard is justified. 13 The applicant lodged an Objection under SEPP 1 to the height standard. In Mr Mossemenear's and Mr Chambers' opinion, the Objection is not well founded because, among other minor shadows, the result of the additional height is the overshadowing of the living and dining room of the third-floor northern unit in 191-195 Walker Street. Mr Chambers said that, for the proposal to be acceptable, its non-complying elements should not cast a shadow on the living and dining room windows of the third floor apartment between noon and 2pm. Associate Professor Toon did not agree. He said that the apartment would continue to achieve more than three hours of sunlight, that this complied with the RFDC, and that the impact was therefore acceptable. 14 I note for the record that the shadow diagrams prepared by Mr Mills were detailed and informative. Mr Mills' evidence is the best of its kind that I have ever had in a case where overshadowing was the major issue. His clear and informative evidence allowed the Court to come to a decision on the basis of precise knowledge. 15 Mr Mills' diagrams indicate that two apartments on the north side of No 191-195 would be affected by new shadow from the non-complying parts of the proposal (ie those parts that are above the 12m height). They are on the third and fourth floors. In respect of the fourth floor apartment, new shadow falls on the dining room, kitchen and bedroom window. The shadow affects the kitchen and bedroom windows from about 9am to 9.45, when it becomes shadowed by existing development. The dining room window is in new shadow from 10am to about 10.30am, when it becomes shadowed by existing development. In Mr Chambers' and Mr Mossemenear's opinion, this amount of overshadowing was minor, and acceptable despite the fact that it was the result of a non-complying part of the building. 16 As concerns the third floor apartment, the living and dining room windows now receive more than 5 hours of sunlight between 9am and 3pm at midwinter. Existing development overshadows them from about 11 am to about 11.15am; and from about 2.30pm to 3pm. The proposal would cast additional shadow on the living and dining room windows of the apartment for 1 hour and 30 minutes, ie from 12-noon to about 1.30pm. The windows would still remain in sunlight for more than 3 hours and thus comply with the rule of thumb in the RFDC. 17 All the overshadowing on the living room window and almost all of the overshadowing on the dining room window is due to that part of the proposal that is above 12m. The difference for the occupant between a complying and a non-complying proposal is 1 hour and 30 minutes of sunlight. Put another way, if the proposal complied with the height limit, the living and dining rooms would receive sunlight from morning until 2.30pm with a short interruption at 11am. With the non-complying proposal the living and dining rooms would receive sunlight until noon with a short interruption at 11am, be in shadow from noon to 1.30pm and receive sunlight again from 1.30pm to 2.30pm. The dwelling now receives more than five hours of sunlight and a complying proposal would maintain the status quo. A non-complying proposal would reduce it to less than four hours. 18 It is likely that, if the loss of sunlight were caused by a complying development, most experts (and probably most residents) would accept it as reasonable. The question is whether the impact is also reasonable when it is caused by the non-complying elements of the proposal.

Criteria for the assessment of impacts on neighbouring properties 19 Several judgments of this Court have dealt with the principles to be applied to the assessment of impacts on neighbouring properties. Tenacity Consulting v Warringah [2004] NSWLEC 140 dealt with the assessment of views loss; Parsonage v Ku-ring-gai Council [2004] NSWLEC 347 dealt with the assessment of overshadowing; while Meriton v Sydney City Council [2004] NSWLEC 313 and Super Studio v Waverley Council [2004] NSWLEC 91 dealt with the assessment of overlooking. 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.

25 The above suggests that there are questions that are generally relevant to the assessment of all forms of impact on neighbouring properties. (Other questions will arise depending on the specific nature of the case, the proposal, the impact and the affected properties.)

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? 27 I apply the above principles to the subject application. The loss of sunlight due to the non-complying section of the proposal for the fourth floor apartment is 45 minutes on the kitchen window and 30 minutes on the dining room window, while the living room window is unaffected. I accept Mr Chambers' and Mr Mossemenear's view that this impact is, in the context of the whole apartment, minor. 28 The impact on the third floor apartment is the loss of 1 hour and 30 minutes of sunlight on the living and dining room windows between noon and 1.30pm, when the sun is at its warmest in mid-winter. The windows face towards a side boundary; however, the setback is 4-5m, so they are only moderately vulnerable. There is no evidence that the impact arises out of poor design. The impact is due to the non-complying portion of the proposal. This last fact is the reason why Mr Chambers and Mr Mossemenear considered it unacceptable. I accept their evidence. In my opinion, the loss of 1 hour and 30 minutes of sunlight in mid-winter on living area windows is a significant impact on the amenity of the apartment. The occupant has a reasonable expectation that his/her amenity is not lost because the consent authority has failed to enforce the planning controls. The overshadowing impact, due to the non-complying parts of the proposal, on the third floor north-facing apartment of 191-195 Walker Street renders the proposal unacceptable. 29 The SEPP 1 Objection to the height development standard is not well founded. This is because one of the objectives of the height standard [cl 17(1)(d)] is to maintain solar access to new and existing dwellings, public reserves and streets, and promote solar access to new buildings. 30 The proposal does not meet the above objective.

Internal amenity: solar access to new dwellings 31 Mr Mills' evidence indicates that nine (47%) of the 19 apartments achieve three hours of sunlight on their living room windows, while ten (53%) achieve two hours. The RFDC suggests that the proportion of apartments receiving two hours of sunlight in a high-density area should be at least 70%. In Mr Chambers' opinion, the proposal's performance was poor but, in view of the site's constraints, acceptable. In Mr Mossemenear's view, the performance was satisfactory. Assistant Professor Toon considered it a good performance. None of the experts suggested that the poor solar access to the dwellings was a reason for refusal. 32 In my opinion, two factors bear on this issue. First, existing overshadowing of the site restricts the availability of sunlight to the site. Second, the view of the Harbour to the southeast appears to have led the designer towards a preference for view rather than sunlight. I note that the environmental test BASIX does not apply to the proposal; however, if it did, the proposal's overall environmental performance would be improved by the fact that it includes to water tanks, one for gardening and one for flushing toilets. Balancing these factors and taking into account the expert evidence, I conclude that the proposal's performance on solar access is acceptable.

The Norfolk Island Pine 33 The excavation for the proposed ramp to the basement car park is within less than 1m of an existing Norfolk Island pine on the adjoining property, 199 Walker Street. Mr Mossemenear and Mr Chambers, neither of them arborist, expressed concern about the tree's chances of survival. The Court heard the evidence of Mr I English, an arborist retained by the applicant. Mr English told the Court that the existing retaining wall near the tree is likely to have caused the roots to grow vertically rather than horizontally. As long as the retaining wall remains undisturbed, the tree's chances of survival are good. The proposal does not involve work on the retaining wall. 34 Since there was no other expert evidence on the Norfolk Island Pine, I accept that the probability of the tree's survival is sufficiently high to satisfy the Court.

SEPP 1 Objections to the Building Height Plane and Landscaped Area 35 In addition to the Objection to the height limit, the applicant lodged SEPP 1 Objections also to the Building Height Plane and Landscaped Area standards. Mr Mossemenear and Mr Chambers agreed that non-compliance with the Building Height Plane did not result in adverse impacts. They also agreed that the shortfall in the landscaped area was not material. They considered that the Objections to these two standards were well founded. I accept their evidence.

Conclusions 36 This proposal has been amended on several occasions. The council raised three issues in relation to the latest version. While the Court was satisfied on two of those issues, it found that the SEPP 1 Objection to the height standard was not well founded and therefore the proposal cannot be approved in its present form. 37 The applicant's advocate, Mr P Tomasetti, submitted that it would be unreasonable to refuse the application only because of its overshadowing impact on one single apartment. I do not think that this is putting the matter fairly. What the submission fails to mention is that the Court had before it a proposal that, in order to be approved, needed three successful SEPP 1 Objections. The reason for focusing on the impact on a single neighbouring apartment was that the proposal did not comply with the planning controls. The proposal has significant impact also on two other apartments. None of the experts considered this unacceptable, because the impact resulted from the complying part of the building. 38 It is possible to turn Mr Tomasetti's submission around and say that, while the concern focused on the overshadowing of only one apartment, the cause of the impact was probably also one apartment. If that apartment were removed from the proposal, the impact would disappear. 39 One piece of important evidence missing in the case was a projection of the building envelope that would result in no additional shadow on the living area windows of the third floor apartment in No 191-195 between noon and 2pm from non-complying elements of the proposal. If the applicant amended the proposal to fit into such an envelope, without other changes that increase overshadowing elsewhere, the one issue that stands in the way of approval would be removed. 40 Given that the proposal is capable of amendment to comply with the above findings, I do not think it reasonable to dismiss the application without giving the applicant an opportunity to amend it. The council's advocate, Ms H Irish, submitted that the council intends to seek compensation for the costs of assessing several versions of the proposal. The submission did not go into detail, nor was there an opportunity for the parties to agree on costs without intervention by the Court. Whatever the decision may be on the costs incurred up to the hearing, it seems reasonable that the council should be compensated for the cost of notifying and assessing a further version of the proposal.

Directions The Court directs the parties to approach the Registrar with a timetable for progressing this matter, · by eCourt before 23 August 2005, if they reach agreement; · at the callover on 23 August 2005, if they do not reach agreement.

      Dr John Roseth
      Senior Commissioner

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