Overshadowing
19The applicant submits that the plans for the proposed development have been altered in response to submissions to reduce the impact of the development and have had the support of Council officers. The adjoining residential premises are on a large block, and the house is close to the boundary; preserving the status quo for those premises would unreasonably limit the development of the site. The applicant submits that the issue is what is a reasonable impact on the relevant windows.
20The Council submits that the proposed development is too high and too close to the boundary, and that adverse impacts could be avoided by a more skilful design.
21Mr Layman and Mr Kennan disagreed as to whether the shadow diagrams provided (exhibit B, DA08, DA09) are adequate to assess overshadowing impacts. Mr Kennan was not confident that the heights of the buildings on 106 and 108 Stoney Creek Road are accurately depicted; Mr Layman was satisfied that the diagrams are a reasonable depiction of the impacts of the proposal. They agreed, based on the plans and the view, that at present in mid winter the kitchen window of 106 receives sunlight at 9.00 am until the building self shades at around 2.30-3.00 pm. The lounge room window is in shade at 9.00 am, and in full sun by 10.00 am, and the building self-shadows at around 2.30 pm. They agreed that the proposed development would mean that the kitchen window would receive a shallow band of sun at the top of the window at 9.00 am, increasing to full sun at 12.00 pm until 2.30 pm. The lounge room window would be half in sunlight (on the right hand side) at 11.00 am, and then in full sun until the building self shadows at 2.30 pm.
22Mr Layman and Mr Kennan agreed that the ridgeline of the proposed addition creates the shadow at 9.00 am, and by 10.00 am the shadow arises from the gutter line. Mr Kennan's evidence was that reduction of the sloping roof form from 22 degrees would reduce the shadows cast. Mr Layman agreed that the proposal is for a 22 degree roof pitch for that part of the main roof adjoining the cottage at 106 Stoney Creek Road, and his evidence was that by lowering the pitch of the ridge to 17.5 degrees that would make a difference of half an hour in shadowing. Mr Kennan and Mr Layman agreed that if the floor level was dropped by 300 mm and the proposed addition adopted the building line of the existing building there would be sunlight to the kitchen window at 10.00 am. The applicant conceded that if the proposed addition were lowered in height and the setback was increased the shadow would be lessened.
23Mr Kennan and Mr Layman disagreed as to whether such amendments to the proposed development would be reasonable. Mr Layman's evidence was that the modifications would reduce the floor space by approximately 11.2 sq m, and there would be a significant reduction in the storage area and the accessible toilet would have to be moved. Mr Kennan's evidence was that the accessible toilet would not need to be moved, and that the area could be re-designed to provide a more formal and modern storage area for the existing retail area while mitigating the impact of the proposed development on 106 Stoney Creek Road. The accessible toilet could be located in the void between the existing workshop and the adjoining residential development without undue impact on the amenity of the adjoining development.
24Mr Layman's evidence was that 106 Stoney Creek Road receives ample solar access at midwinter and there is no impact from the proposal on private open space or windows or doors of rooms connected to the private open space between 9.00 am and 3.00 pm in mid winter. The north facing rear sliding doors and windows as well as the west facing windows of the adjoining cottage are unaffected by the proposal as is the rear deck and private open space. There are no numerical controls for solar access with regard to commercial development, however the proposed development would meet the controls applicable to residential development in Hurstville Development Control Plan No 1 (DCP No 1).
25I accept the agreed evidence of the planners as to the overshadowing impact of the proposed development on the kitchen and lounge room windows. It was common ground that there are no applicable numerical controls as to appropriate periods of sunlight in the planning controls, and that at best the requirement in section 4.1.3.10 of DCP No 1 (which applies to residential land) that the principal private open space of both the subject lot and adjoining lot must receive a minimum of three hours direct solar access between 9.00 am and 3.00 pm in mid winter is a guide and not a requirement.
26Guidance in considering impacts on adjoining properties is provided in Pafburn v North Sydney Council [2005] NSWLEC 444, where Roseth SC considered previous judgments and identified five themes:
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.
27I accept the agreed evidence as to the contribution of the ridge height, and the reduced setback to the adjoining boundary, to the overshadowing of the dwelling on 106 Stoney Creek Road. I note that the two windows affected, being the lounge and the kitchen, are rooms in which the occupants of that dwelling could reasonably expect to spend time during the day. Both windows are vulnerable, in the sense identified by Roseth SC, being north-east facing and on the side boundary. The wall on which they are located is set back 2.3 m from the common boundary. Based on the planning evidence, the kitchen window would lose three hours of sunlight. The lounge room window would not be in full sunlight until after 11.00 am. I agree with the Council that these are significant impacts.
28Both parties referred to The Benevolent Society v Waverley Council [2010] NSWLEC 1082 in which Moore SC articulated a revised planning principle on solar access. The applicant submitted that because 106 Stoney Creek Road is an older house with modest window sizes, it is preferable to apply the previously adopted approach outlined in Parsonage v Ku-ring-gai Council [2004] NSWLEC 347, and to consider that if a window is to be assessed as being in sunlight, half of its area should be in sunlight. The approach of Moore SC is to have regard not only to the proportion of the glazed area in sunlight but also to the size of the glazed area itself. For the reasons stated by Moore SC at [139], I agree with the preferable approach is that adopted in Benevolent Society. That approach also considers the amount of sunlight lost as well as that retained, and reinforces the concern expressed in Pafburn that overshadowing arising out of poor design is not acceptable.
29It was conceded by the applicant that reducing the ridge height and increasing the side setback would reduce the loss of sunlight. In considering whether the impacts arise from a necessary or reasonable proposal, I prefer the evidence of Mr Kennan to that of Mr Layman. It was apparent from the oral evidence that the configuration of the lower ground floor, including the positioning of the access stairs, requires reconsideration in order to achieve a workable layout. I agree with the Council that there are unresolved questions as to the functionality of that space for the loading area, transport of boxes in to the premises, together with parking for two vehicles. I accept the evidence of Mr Kennan that there is scope to amend the roof form such that the 22 degree sloping roof form is replaced by a lesser slope so that the shadow cast is from the eaves in the early morning in mid winter rather than the ridge line. Mr Kennan's evidence that goods will need to be transported between the lower ground floor to the ground level, with or without a reduction in height, was consistent with the evidence from the applicant as to the pattern of delivery of supplies and loading of items for delivery from the premises. I accept Mr Kennan's evidence that the accessible toilet could be located in the void between the existing workshop and the adjoining residential development, although that would reduce the space available for outdoor clothes drying which the applicant proposes to provide for the tenants of the residential accommodation. I accept Mr Kennan's evidence that the consequence of these modifications would be that more storage space would be available for the applicant with mitigation of the overshadowing of the windows of the adjoining development. I agree that a more skilful design would achieve what the applicant is seeking in terms of improved storage while minimising impacts on the adjoining property.