Tambimutto v Hurstville City Council

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

DATES OF HEARING: 18/02/2008 and 19/05/2008

APPLICANT Mr M. Arch, solicitor, of Concordia Pacific LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor, of Deacons

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11198 of 2007 Shane Tambimutto v Hurstville City Council This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT 1 This is an appeal against the refusal by Hurstville Council (council) of a development application for alterations and additions to an existing house at 4 Dawn Street, Peakhurst (the site). 2 The site, its context, the history of the application and the planning controls are in the Statement of Facts and Contentions filed by Council on 16 January 2008. 3 The appeal commenced on site as a conference under s 34 of the Land and Environment Court Act 1979. The conference was adjourned for the applicant to prepare amended plans and it resumed on 19 May 2008. The parties did not reach agreement but agreed to the disposal of the proceedings under s 34(4)(b). 4 The only matter in dispute between the parties remained the overshadowing and visual bulk impact of the proposed two-storey addition on the principal area of private open space of the adjoining property to the south (6 Dawn Street).

5 The Court heard evidence from the owner of 6 Dawn Street, Mr Griffin. His principal concerns reflected those of Council, but he raised additional issues in relation to the overshadowing impact on the north wall and western window to the bedroom of his property and the impact that increased overshadowing would have on the damp that currently his property experiences. He also perceived that the proposal would adversely impact on privacy and that noise would be generated from the pump room. Mr Griffin also considered the appearance of the dwelling to be uncharacteristic of the area in both its design and materials. 6 The Court heard expert planning evidence from Ms T Christy, for the Council, and Mr D Crane, for the applicant. The difference of opinion between these experts is stated in their joint report. This can be summarised as being that Ms Christy considers the two-storey addition does not maintain the predominant rear setback in the street, which results in adverse impacts on amenity. In particular, the two-storey form will be visible and will create a "boxed-in" feeling when viewed from the rear 6 Dawn Street. 7 The proposal does not comply, in Ms Christy's opinion, with the objectives of cl 4.5.7 of the Development Control Plan (DCP):

…to provide dwellings with adequate daylight to habitable rooms and adequate sunlight to private open spaces.

The design of buildings should minimise the overshadowing of neighbouring private open space or windows to habitable rooms. 8 Ms Christy considered the overshadowing control to relate to the principal private open space being the area directly accessed from the rear sunroom of 6 Dawn Street. In her opinion, the control required no reduction in solar access to this area for 4 hours in mid-winter between 9 am and 3 pm. 9 In her report to Council on 5 March 2008 dealing with the amended design, Ms Christy stated that: The amendments allow the adjoining property's principal private open space to start to receive more sunlight from approximately 10.15 am and by 11 am approximately 50% of that space is in sunlight. By 12 noon the majority of that space is in sunlight. …..

Although the proposal still does not achieve full compliance with the minimum 4 hrs sunlight as required under Council's Single Dwelling controls; it does comply with Council's concession for east-west orientation sites as identified in those controls. 10 Ms Christy considered that a better, more skilful design would minimise overshadowing. In her opinion, the two-storey section should be more in line with the adjoining buildings or situated on top of the existing dwelling house to minimise both visual bulk and overshadowing impacts.

11 In Mr Crane's opinion, the proposal was consistent with the rear setback of nearby properties. He noted that the rear setback of the sunroom of 6 Dawn Street is about three metres from the boundary, which is similar to the proposed setback of bedroom 1/ensuite in the proposal. He acknowledged that the sunroom is single storey but considered there to be no established "open space corridor" and that non is required by the planning controls. In his opinion, the second storey element did not result in an adverse impact. 12 In relation to both visual bulk and overshadowing, Mr Crane considered that the height of bedroom 1/ensuite (6.7 m to the ridge), the floor to ceiling height (2.5 m), the setback of bedroom 1/ensuite (4.055 m from the southern boundary and 3.348 m from the rear boundary), and the articulation, design and materials all sought to minimise impacts on the adjoining neighbour. In particular, the rear and side setbacks were greater than the minimum requirements in the DCP of 1.5 m for two-storey development. 13 In Mr Crane's opinion, the overshadowing control referred to private open space areas, which included the whole of the rear area of No. 6 Dawn Street. He stated that:

The proposal achieves four (4) hours of sunlight to approximately two-thirds of the rear private open space of the southern adjoining dwelling at No. 6. The majority of the rear open space is in full sunlight between noon and 3 pm in mid-winter. In my opinion, that meets the objectives of DCP No 1. 14 Even if the private open space was limited to the paved area with direct access off the sunroom, Mr Crane considered the increase in overshadowing to be acceptable particularly when compared to the solar access already lost by the boundary fence and to the impact that would result even from a single storey addition set back 1.7 m from the boundary. Findings 15 The principal issue in this case is the impact of the two-storey component of the proposal, which extends beyond the rear western façade of 6 Dawn Street. The element contains bedroom 1/ensuite. It extends 3.68 m and is set back 4.55 m from the common boundary between 6 Dawn Street and the site. The proposal was amended to increase the setback of this element to reduce the impact of overshadowing and visual bulk on the adjoining property. 16 The private open space of 6 Dawn Street comprises a paved area with a washing line, which is directly accessed off the sunroom and is approximately 6 m wide. There is also a grassed area to the west of the sunroom that is about 3 m wide. Mr Griffin stated that the paved area is primarily used. 17 The paved area will receive almost no sun until about 10.15 in mid-winter. This area is currently shaded at this time of year until after 9 am but the proposal will increase the shadow. From after 11 am, about 50% of the paved area will be in the sun and after 12 almost all of the area. The solar access to the grassed area will not be affected by the proposal. 18 "Private open space" and "principal private open space" are both defined in the appendix to the DCP. Clause 4.5.7 refers to private open space, which would include all of the area to the rear of 6 Dawn Street. Even if the definition of "principal private open space" is accepted, I consider that both the paved and grassed areas would be included in that definition as both areas are private and have direct access to a living area. Although not utilised by the Griffins, both areas could provide amenity as useable open space. 19 Solar access to at least two thirds of the combined open space area will be maintained. Solar access to the paved area will be reduced but not to any significant extent as at least 50% of the area will receive sun from about 11 am in midwinter. While I recognize that this change is of concern to the Griffins, it is not unreasonable given the planning controls nor is it unreasonable when the principles in Parsonage v Ku-ring-gai [2004] NSW LEC 347 and Pafburn v North Sydney [2005] NSW LEC 444 are applied. 20 In particular, the proposal is reasonable when considering the extent of solar access to be lost as well as how much is to be retained. 6 Dawn Street is to the south of the proposal and is therefore vulnerable to impacts. This is recognised in cl 4.5.7 of the DCP, which permits less than the 4 hour requirement on sites with an east-west orientation. Even with this constraint the proposal maintains 4 hours of sunlight to the private open space of 6 Dawn Street. 21 The proposal has been amended to address overshadowing impacts. It provides considerably greater rear and side setbacks than required by the DCP and is consistent with the form and likely impacts of development anticipated by the DCP. 22 If Council is concerned that two-storey elements should be excluded from the rear of properties, this should be explicit in its planning controls. I note that the contentions raised in response to the earlier proposal did not raise the deletion of the two storey section of the proposal, rather that it should be set back further from the boundary fence. This has been achieved and the overshadowing impact is acceptable. 23 The height, setback and articulation of the proposal will also not result in any unreasonable visual impact when viewed from the adjoining property. 24 In relation to the other issues raised by Mr Griffin, I accept the assessment in Council's reports. 25 The proposal meets the objective in Hurstville Local Environmental Plan 1994 "to preserve and enhance the character and amenity of established residential areas" and complies with both the numerical controls and the objectives of s 4.5 in the DCP. Orders 26 The orders of the Court are therefore: 1. The appeal is upheld. 2. The development application for alterations and additions at 4 Dawn Street, Peakhurst is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibit 5, 6 and B are returned.

      Annelise Tuor
      Commissioner of the Court

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