Prolet Constructions Pty Limited v Canterbury City Council

Judgment (9 paragraphs)

[1]

Solicitors: Mr C Gough, Storey & Gough (Applicant) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 10641 of 2014

[2]

Judgment

This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed, and subsequent actual, refusal by the respondent Council of consent to development application DA-94/2014 for the demolition of existing structures and the construction of a mixed use development comprising 71 residential apartments, 8 ground level commercial tenancies, and basement car parking, at 570-574 New Canterbury Road Hurlstone Park (the site).
The site is located on the southern side of New Canterbury Road on the corner of Garnet Street, to the east of the intersection of New Canterbury Road with Canterbury Road. The land on the opposite side of Garnet Street, on the northern side of New Canterbury Road, and on the western side of Canterbury Road at the intersection with New Canterbury Road, is in Marrickville local government area.
The site is irregular in shape and comprises 6 allotments with a combined site area of approximately 2600 sqm. The corner section of the site on New Canterbury Road and Garnet Street was previously used as a service station, which has been demolished and remediation works undertaken. The western section of the site currently accommodates three single storey brick dwellings and ancillary structures. Vehicle access to the site is provided from New Canterbury Road and Duntroon Lane, which runs off Duntroon Street.

Planning controls

State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applies, and cl 30 requires consideration of design quality when evaluated in accordance with the design quality principles in cll 7-18, and the Residential Flat Design Code (RFDC). The draft State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (Amendment No 3), and its associated draft Apartment Design Guide (exhibit 4) were publicly exhibited until 31 October 2014.
The site is in the B2 Local Centre zone under Canterbury Local Environmental Plan 2012 (the LEP), and the proposed development is permissible with consent as "shop top housing", defined to mean "one or more dwellings located above ground floor retail premises or business premises". The objectives of the B2 zone, to which regard must be had under cl 2.3(2) of the LEP, are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To facilitate and support investment, economic growth and development for active, diverse and well-designed centres.
Clause 4.3(2) of the LEP provides for a maximum height limit of 18m. The proposed development is 21.6m, and Prolet has provided a written request to vary the height development standard under cl 4.6 of the LEP (revised during the course of the hearing, exhibit G). The report by the Director City Planning to the Council's Independent Hearing and Assessment Panel meeting on 29 September 2014 (exhibit 3, tab 19) noted (p 149) that the variation to the height control relies on the major development sites provisions under section 3.1.3 of the DCP (extracted below); and that the proposed development meets the requirements of those provisions as the land area is greater than 2000sqm, the additional height does not exceed one storey and does not exceed a maximum of 15% of the overall site area. The report noted that the length and depth of the site allows for an appropriate transition in height along the site from the north and south; that the additional seventh storey had a 5m setback from New Canterbury Road, 11m from Garnet Street and 12m from the rear boundary; and concluded that the variation to the height standard would not create unreasonable overshadowing, privacy or amenity impacts for occupants of the surrounding locality, and the cl 4.6 variation could be supported. That position was maintained in reports to the Council's City Development Committee meetings of 9 October 2014 and 13 November 2014 (exhibit 3, tab 20, 21). The Council does not raise an issue as to height in this appeal.
Clause 4.4(2) of the LEP provides that the maximum floor space ratio (FSR) for any site is as identified in the Floor Space Ratio Map. The area of land in the B2 zone on the southern side of New Canterbury Road, including the subject site, is not subject to a maximum FSR on the Floor Space Ratio Map.
The land to the south of the site on Garnet Street and Duntroon Street is in the R3 Medium Density Residential zone under the LEP. The maximum height is 8.5m, and maximum FSR is 0.5:1.
Clause 5.10(5)(c) of the LEP provides that a consent authority may require a heritage management document to be prepared when considering an application for development on land in the vicinity of land on which a heritage item is located. The Council did not require such a document for this development application, however the impact of the proposed development on the heritage items in Garnet Street was the subject of expert heritage evidence in this appeal, as noted above.
The Canterbury Development Control Plan 2012 (the DCP) applies. Part 3 Business Zones applies to land in the B2 Local Centre zone. Part 3 identifies four business zone characters: Neighbourhood Centres, Local Centres, Canterbury Road, and Roselands. The Objectives for Business Centres are: O1. Lively business centres accommodating a mix of retail, commercial and community activities, and catering to locals and the wider community, relative to their size and intended function. O2. Long-term social and economic viability of business centres is maintained and they remain significant to the community for their individual character, ease of access, and urbane appeal. O3. Retail and business activity is maintained at ground level to promote pedestrian activity and contribute to lively streets in centres O4. Facades are maintained in the business centres where they contribute to the character of the traditional main streets. O5. Frontage type is appropriate for the location and will maximise activity at the public/private interface, and provides weather protection for pedestrians. O6. Impacts of commercial development on adjacent residential properties are minimised.
The building envelope controls are provided in section 3.1: 3.1 ENVELOPE CONTROLS 3.1.1 Building envelope components Note: Building envelopes define a three-dimensional form that limits the extent of a building. The height, length and depth of building envelopes are defined in metres. Building envelopes are at least 20-25 precent greater than the achievable floor area of a building. Objectives O1. The form and shape of new buildings is defined by building envelope controls. O2. The appearance and performance of development is an important consideration in designing, rather than building to the maximum building envelope. Controls i. Building envelopes are defined by a combination of controls that include: ● building height, ● building depth, ● building separation, ● building setbacks, ● side and rear setbacks to residential zones. ii. More complex building envelope diagrams are provided for the following master plan sites: ● Canterbury Town Centre - mainly for the Riverside Precinct, ● Campsie Civic Centre Precinct, ● Undercliffe Bridge, ● Roselands. iii. The maximum building envelope is not always achievable due to the need to comply with other requirements of the CDCP; as a general guide 75 -80% of the specified building envelope will be achieved to allow for building articulation and the particular circumstances of a site or proposal.
Section 3.1.3 deals with major development sites: 3.1.3 Major development sites Objective O1. Facilitate development to the full potential of land, and accommodate higher densities on sites where it is appropriate. Controls i. Major development sites are sites within neighbourhood and town centres that, because of their size and location, may be able to accommodate increased heights over that specified in the CLEP and the CDCP. ii. To qualify as a major development site the land area must be greater than 2000m2. iii. The density bonuses do not apply to the master planned sites and areas such as Campsie Civic Centre Precinct, Canterbury Road Corridor, and Undercliffe Bridge Precinct, which have had potential density bonuses factored into the master plans and controls. iv. Any increase in height beyond that specified in Part 3.1.6 must not exceed one storey, and must not exceed a maximum of 15% of the overall site area. v. To avoid creating the appearance of an additional storey do not locate the additional floor space at the front of the site. Locating the additional floor space to accentuate a corner may be acceptable. v. Incorporate design measures (including setbacks and stepping down levels) to minimise the impacts of height and bulk).
Section 3.1.6 deals with height: 3.1.6 Height Note: Maximum height of buildings, in metres, is provided in the CLEP (for all land in the business zones except for Roselands and the Campsie Civic Centre Precinct). Objectives O1. New buildings have a scale that is visually compatible with adjacent buildings and heritage buildings, where this may require height of new development to lower than the permitted height. O2. Transition in scale and bulk from highest in the middle of centres to lower at the interface with residential zones and residential buildings. O3. Greater guidance as to the required built form through the provision of maximum storeys controls. O4. Floor to ceiling height is adequate for the operation of the intended and potential use. O5. Good residential amenity within buildings and externally, including natural light access for dwellings. Controls Building height i. Refer to the CLEP for maximum height of buildings in metres. ii. For proposed new buildings in a traditional streetscape, the building height at the street wall is to be compatible with the height of adjoining and nearby two storey buildings. Floor to ceiling heights iii. Provide a minimum 3.3m floor to ceiling height for the ground floor. iv. Provide a minimum 2.7m floor to ceiling height for residential floors. v. Minimum car parking floor to ceiling height 2.8 m: vi. The floor to ceiling height may need to be increased to meet the requirements of the intended use, however, the maximum building height will still need to be complied with. Floor to ceiling height - B6 Zone Enterprise Corridor vii. A floor to ceiling height 3 m per storey is required.
Section 3.1.8 deals with setbacks. The Objectives and Controls are: Objectives O1. Establish the desired spatial proportions of the street and define the street edge. O2. The traditional street building wall is maintained where this is the existing or desired future character. O3. Minimise building size and bulk by setting back upper storeys. O4. Minimise amenity impacts on adjoining properties. O5. Increased setbacks along Canterbury Road provide for possible future implementation of street parking and assist in reducing traffic noise impacts. Controls i. Comply with the street level setback, number of storeys at the street level, and upper level setback in the following table. ii. A rear setback is not required if the land adjoins a lane. …
The applicable provision for the subject site in the accompanying table is 1-3 storeys at the street level and build to front boundary, and for upper level setbacks, 3m for a fourth storey, and 5m for greater than 4 storeys (all storeys to be set back this distance including the fourth storey).
There are specific provisions for side setback, side setback on a boundary with a residential zone, and rear setback on a boundary with a residential zone: Side setback vi. Do not provide a side setback in the B1 or B2 zones when the desired character is for a continuous street frontage, unless (vii) - (xii) below apply. vii. A minimum side boundary setback of 4.5m in the B5 zone with SEPP 65 separation requirements for height of 4 storeys and above (see section 3.1.9 (i)). On boundary with residential zone - side setback viii. Establish a 45o height plane projected at 1.5m from the residential boundary. ix. Provide minimum 1.5m setback to the residential zone boundary. x. A two-storey limit on the boundary with residential zone applies. (Refer to Figure 3.4) On boundary with residential zone - rear setback xi. Establish a 45o height plane projected at 6 m from the residential boundary. xii. Provide minimum 6m setback to the residential zone boundary. xiii. A two-storey limit on the boundary with residential zone applies. (Refer to Figure 3.5)
Section 3.1.9 deals with building separation, and has the following objective: O1. Separation between buildings promotes improved levels of residential amenity in new development, and preserves reasonable sunlight, privacy and general amenity for residents of existing dwellings.
The minimum separation specified between buildings on adjoining sites is provided in table form: Storey Habitable room/balcony Habitable room/balcony Between non-habitable rooms to habitable room/balcony to non-habitable room Up to 3 6 4 3 Fourth 12 9 6 Fifth to Eighth 18 13 9 Ninth + 24 18 12

Consideration

The Council contends that the setbacks of the proposed development are inadequate and do not comply with the requirements in section 3.1.8 of the DCP, and that failure to provide adequate setbacks has impacts on visual bulk, privacy, and overshadowing of adjoining properties.
The parties differ as to whether the boundary of the subject site with 8 Garnet Street, which is in the R3 Residential zone, is a side or rear boundary for the purposes of the application of the setback controls specified in Figure 3.4 or Figure 3.5 of the DCP. The Council contends that the boundary of the site at 8 Garnet Street is a rear boundary, and Prolet contends that it is a side boundary.
Prolet submits that Figure 3.4 shows the intent of the DCP where a proposed development abuts a side boundary of a neighbouring property, and that the building in the figure in the residential zoning can be equated with 8 Garnet Street. As a consequence, where a building is proposed to be constructed on the side boundary of its neighbour, that is the outcome required by the Council: in 1.5m from the boundary up 2 storeys, and a building height plane at 45 degrees to the boundary above 2 storeys. Figure 3.5 does not have a diagrammatic representation of a dwelling in the residential zoning, and shows a rear yard of the property in the residential zoning, so that when building onto the back yard of the property in the residential zoning a larger setback has to be applied for a better relationship between the development in the two zones. Prolet submits that a commercial mixed use does not need to have a rear yard, and the focus is on the lower density and scaled building in the residential zone. Prolet submits that howsoever the boundary is characterised as a question of fact, a reasonable relationship must exist between the proposed development and the neighbouring development having regard to the existing and/or desired future character of the locality, an assessment under s 79C of the Act, and a reasonable outcome having regard to the application planning controls.
The Council submits that the boundary with 8 Garnet Street is a rear boundary, on the basis that the development is oriented to new Canterbury Road which is the front of the site, and that consolidation of the lots will change what was otherwise a side boundary with 8 Garnet Street to a rear boundary. The Council submits that whether it is a side or rear boundary, the proposed development does not comply with either setback control. The Council submits that the non-compliances are not insignificant or inconsequential when considered against the objectives of the controls.
The planners addressed this issue in their joint report (exhibit 6). Mr Morad was of the opinion that the shared boundary is a rear boundary because it is part of the rear of the site as the boundary extends from Duntroon Lane, and the rear of the site is defined with respect to the primary street frontage which is New Canterbury Road. Mr Harrison was of the opinion that the shared boundary is a side boundary, including because it is a side boundary to 8 Garnet Street, regardless of the subject site, and is perpendicular to Garnet Street; it is not an extension of Duntroon Lane; an observer walking along Garnet Street would see a side fence between a single storey cottage and the proposal; and the building fronts both New Canterbury Road and Garnet Street by its elevation designs that are specific for each street.
In my view, the boundary to No 8 Garnet Street is a rear boundary for the subject site, for the following reasons.
The subject site has in effect five boundaries. The six existing lots that comprise the site are to be consolidated into one allotment, noting that the parties are in dispute as to whether that consolidation should be required prior to the issue of a construction certificate or prior to the issue of an occupation certificate. The existing lots are shown (shaded in red) on the following photograph (exhibit B, tab 4):
Two of the existing lots (lot 1 DP 168997, which adjoins 8 Garnet Street, and lot 1 DP 168996 to its north) are oriented to Garnet Street, as are the adjoining dwellings at 8 Garnet Street (lot 1 DP 169089) and the lots further south along Garnet Street. When considered by reference to those two lots, Mr Harrison is correct in his observation that the traditional subdivision pattern would be that the boundary with 8 Garnet Street is a side boundary. However, other lots, namely the three lots on the western part of the site fronting New Canterbury Road, are clearly oriented with their primary frontage to New Canterbury Road and with rear access for two of them to Duntroon Lane. Given that the proposed development occupies the entirety of the site, and the existing six lots are to be consolidated, the existing subdivision pattern is, in my view, of limited relevance.
The starting point for application of the general setback provisions for Business zones as stated in 3.1.8 of the DCP is the development the subject of assessment, as reflected in objective O4 which identifies consideration of the amenity impacts of that development on adjoining properties. In that context, the Controls in (viii)-(xiii) for land with a boundary with a residential zone reflect additional requirements to respond to the sensitivity of that relationship, by reference to how the proposed development is configured on its site. The diagrammatic representation of a dwelling, and its orientation, in Figure 3.4, and the absence of one in Figure 3.5, do not detract from the focus in both figures on the text, and on the representation of the required building height plane on the site the subject of the proposed development.
Considering the proposed development, the vehicle entry to the development is from Duntroon Lane at its eastern end, at the boundary of the rear of 8 Garnet Street. The vehicle exit is on to Garnet Street on the boundary with No 8, with approximately 1.5m of landscaping to the boundary for approximately half its length. There is additional landscaping and communal open space at the side of the development closest to 8 Garnet Street. The pedestrian residential entry is on New Canterbury Road. The eastern most retail/commercial unit on the ground level has its entries on New Canterbury Road and onto the walkway leading to the vehicle exit, and the residential units above are generally in a north/south orientation accessed off a central walkway running west to east across the site. The units on levels 1, 2 and 3 have their balconies on the northern side (on New Canterbury Road), with bedroom windows facing east on levels 1 and 2, while level 3 has no window facing east. It is not until levels 4, 5 and 6 that there are balconies on the eastern elevation. Having regard to the development as proposed on the site as a whole, I would regard the location of the vehicle exit and the ground level communal open space, and the general orientation of the retail and residential units, as supporting a conclusion that while the relevant boundary is clearly a side boundary for 8 Garnet Street, it is nonetheless a rear boundary for the proposed development. That relationship of the rear boundary of a property adjoining the side boundary of its neighbour can be observed on the opposite corner of Garnet Street where Lots 1 and 2 of DP314209 (and other adjoining development to the east) have their primary frontage on New Canterbury Road, with their rear boundary adjoining the side boundary of lot A DP418948.
However, if I am wrong in that conclusion, and the appropriate setback control to apply is that for a side setback in 3.1.8 (viii)-(x) and Figure 3.4, then on the evidence before the Court whichever setback control is applied, the proposed development does not comply.
That is demonstrated by sections through the proposal from the shared boundary with 8 Garnet Street providing side and rear setback height planes (Annexure 1 to the planners' joint report, exhibit 6), and confirmed by Mr Harrison's notations to the plans in exhibit A, agreed by Mr Morad. Mr Harrison was asked in oral evidence to indicate on the plans where the setback line would fall, based on Figures 3.4 and 3.5. For ground level and level 1, the proposed development would comply with both controls. For level 2, it would comply with the side setback control, but not the rear control. For levels 3, 4, 5 and 6, elements of the building would encroach within either setback: on level 3, balconies and planting (side setback), or parts of units 3.07 and 3.08; for levels 4, 5 and 6, parts of units 4.07, 4.08, 5.06, 6.06, and balconies and the central walkway; and at the roof level. Mr Harrison returned to the witness box on the third day of the hearing to clarify some aspects of his markings, stating that for level 6 the side setback line he had drawn on the previous day was approximately 1m further from the boundary than it should have been, based on interpretation of the 45 degree building height plane as stated in the text of the DCP, and he provided a diagram illustrating that interpretation (exhibit K). However, even on the basis of this revised evidence, the amended notation on drawing 209 shows that with a side setback line drawn closer to the boundary there would still be part of unit 6.06 and part of the central walkway within the side setback. Based on the plans, those encroachments within the setbacks, whether side or rear, are not limited to balconies or awnings or other minor encroachments that might be permitted as exceptions to the minimum setback area under section 3.1.10 of the DCP.
The issue then is to consider the impacts of these non-compliances. The Council submits that the failure to provide adequate setbacks gives rise to additional visual bulk, privacy impacts, and overshadowing. Prolet concedes that there are minor breaches of the side setback control, however submits that there is substantial compliance, and to the extent that there are breaches, there are no consequential impacts. Prolet submits that applying a rear setback control would reduce the building footprint but not the scale of the building, and reducing the bulk of the building is inconsistent with the urban design outcome for a major development site, and that the breaches to the side setback control are minor and de minimis.
Mr Harrison was of the opinion that the non-compliances are marginal and acceptable, and that with the stepping nature of the southern façade there is much more unused space within the permissible envelope of the side setback control than protrudes: in his opinion the design is a skilful response to the complex configuration of the site, the street corner and the neighbouring buildings. The objectives of section 3.1.8 include "minimise building size and bulk by setting back upper storeys", and "minimise amenity impacts on adjoining properties". In Mr Harrison's opinion the proposal does set back the upper storeys and does address amenity impacts by orientation of apartments away from the southern boundary and employing a range of privacy measures such as screens, planters, and window size and orientation.
The Council does not raise privacy as an issue. Mr Morad agreed in the joint report, and confirmed in his oral evidence, that the design changes provide sufficient additional privacy protection in terms of apartment orientation, screens, solid balustrades and planters. The planners agreed that visual privacy is also a function of building separation.
Prolet submits, based on the evidence of Mr Harrison, that the proposed development complies with the requirements of SEPP 65 in terms of building separation, which requires separation of 12m at ground level between buildings, and that the proposed development meets the minimum requirements of 6m building separation from the boundary. Mr Harrison also relied on the draft Apartment Design Code, which in his opinion represents best practice. In his opinion the relevant separation distance, given that 8 Garnet Street is less than 4 storeys, is 12m building to building, with half the minimum separation measured from the boundary. In his opinion the separation distances specified in the RFDC and the draft ADC are about the relationship between balconies which face each other, and in this instance the primary aspect of the units on that southern side of the development is towards Garnet Street. Accordingly, this is not a situation with windows and primary balconies looking straight into each other.
It is not necessary to determine whether or not that is an appropriate approach to adopt to the RFDC or the draft ADC. If Mr Harrison's approach to the RFDC is applied, the proposed development does not in any event meet a 6m separation on the south eastern corner of level 5; and the objectives of the RFDC Building Separation provisions, which include appropriate massing and spaces between buildings, and controlling overshadowing of adjacent properties, would be relevant in considering the appropriateness of the building separation distances that are achieved. The draft ADC goes further, and provides additional considerations in setting building separation, including (at p 39) that separation may need to be increased to achieve adequate solar access, may need to increase at boundaries between lower and high density residential areas, and that the building setback should be increased by 3m at the boundary between a change in zone from apartment buildings to a lower density zone.
The overshadowing impacts of the setback non-compliances was the subject of detailed expert evidence by Mr King. In his expert report dated 7 October 2014 (exhibit A, p 55) Mr King explained his modelling, noting that his preferred analysis technique is to prepare "views from the sun" at appropriate intervals (hourly or half hourly),prepared from a 3D digital model of the development. Mr King was of the opinion that it makes little difference whether the common boundary with 8 Garnet Street is a side or rear boundary as it makes little difference to the question of merit related to the overshadowing by a new development giving effect to the expected height and density of the designated zoning of the subject site. Mr King considered overshadowing of 8 and 10 Garnet Street, and he noted a slightly greater overshadowing by a building envelope for a side boundary when compared to a rear boundary, which he considered very small and arguably negligible. Mr King concluded that the design of the proposed building foregoes building bulk which would otherwise appear to be allowable under the DCP control, and preserves morning sun for the properties neighbouring the south east corner of the subject site.
As noted above, during the course of the hearing Mr King undertook additional modelling, which added a representation of 12 Garnet Street, and included deletion of the top floor, to produce a hypothetical version of the scheme which complies with the height without the extra floor bonus; and which took a single viewpoint from the south (exhibit D). In that additional analysis, Mr King addressed the comparison of overshadowing of the private open space of properties at 8, 10 and 12 Garnet Street between the proposed building and alternative building envelopes generated from the rear setback and side setback height controls; the comparison of overshadowing of those private open spaces by the proposed building and the same building with the top floor deleted; and clarification of the relationship between the south façade of the proposed building and the building envelopes resulting from the alternative setback controls. The latter was carried out by superimposing those hypothetical envelopes on the 3D model of the proposed building so that exceedances of the envelopes are shown protruding through their surfaces, and with hourly views showing when any such exceedance contributes to overshadowing.
Mr King's conclusions from this additional analysis, as recorded in exhibit D, and which he confirmed at the end of his oral evidence, were:

the comparison of the proposed building as amended with the envelopes generated from alternative setback controls showed that the proposal creates less overshadowing of 8, 10 and 12 Garnet Street than does the side setback envelope, and retains comparable areas of sun from just before 12 noon to shortly after 1pm on June 21 for the rear private open space of 10 Garnet Street;
the private open space of 12 Garnet Street retains over three hours of sun to a proportion of its area which may be considered to fully comply with the relevant DCP control, and the ground level private open space is unaffected by overshadowing from the proposed development for the duration, with shadows being from the dividing fences;
the top floor of the amended proposal does not appear to generate any additional overshadowing of the relevant ground floor private open space of 8, 10 and 12 Garnet Street;
the comparison of the proposed extents of the building on its south elevation show a number of small horizontal protrusions in comparison to the envelope generated from the side boundary setback control; while some of those protrusions do add marginally to the extent of the shadows of the proposed building envelope, in no instance did they appear to add to the overshadowing of relevant portions of the affected properties. In the comparison to the rear setback control envelope those horizontal exceedances were much greater; in Mr King's view the identifiable difference between the shadows of the proposed building and those of the complying rear setback envelope was marginal and negligible.

In oral evidence Mr King explained his additional analysis. He noted that for the addition of 12 Garnet Street to the model in the absence of survey data he had had to rely on limited cadastral information as to boundaries and had assumed levels to be similar to No 10, however he did not consider that any inaccuracy that might result would materially affect the analysis. Exhibit D has two Tables, both three dimensional aerial views. Table 1 compares the currently proposed height of the building with its top floor; then the same building with the top floor deleted, then the envelope generated from the side setback control (full height), and finally the envelope generated from the rear setback control. Table 2 starts with the proposed building, and the two images below are the horizontal protrusions beyond the side and rear setback controls. In the course of his oral evidence Mr King marked exhibit D to show the protrusions, and the areas where the protrusions cause shadows. Mr King further elaborated on his analysis by reference to particular views of the digital model on his computer, as observed by the Court and the parties' representatives; some of those images relating to 9.00am, 10.00am and 11.00am were subsequently printed (exhibit H). Mr King also addressed in his oral evidence additional shadow impacts to the rear yard of properties with frontage to Duntroon Street.
Mr King frankly acknowledged some limitations in this additional analysis, given the time he had to undertake the additional modelling and the information he had available as to surrounding properties, including properties with frontage to Duntroon Street. However, I am satisfied that the central aspects of his evidence were supported, and enable conclusions to be drawn. In considering that evidence, the significant factors are that while the modelling demonstrated the protrusions into the setback controls, what matters is the extent to which those protrusions are sunlit and so contributing to additional shadow; whether any additional shadow falls on private open space or onto a roof or other structures, and if onto private open space, whether that is a front or rear yard; and the self-shading of side walls and private open space of 8, 10 and 12 Garnet Street need to be taken into account in understanding the shadow consequences of any of the protrusions.
Based on that evidence, I accept that when compared with a compliant side or rear setback control envelope, the proposed development gives rise additional overshadowing to the private open space of the adjoining properties in Garnet Street in the morning. In particular, at 9.00am and 10.00am the proposed development shadows the rear yard of 12 Garnet Street where compliance with the rear setback control would provide some solar access (limited at 9.00am and more substantial at 10.00am); and at 11.00am, compliance with the rear setback control would significantly increase solar access to the rear yard of No 12 when compared with the proposed development and the side setback envelope. For 10 Garnet Street, compliance with the rear setback would provide a small triangle of sun at the rear yard at 12 noon, and for approximately half that yard at 1.00pm, when compared with the proposed development or the side setback envelope. As noted by Mr King, the introduction of a glazed roof to the walkway on the top level provides for some additional sun to the private open space of No 10 at 1.00pm. No 8 and 10 retain some solar access to the front yard at 12 noon, when compared with the rear and side setback envelope, while that is retained for No 12 at 12 noon with a rear setback.

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Cases Cited (4)