Wilson and others v Coffs Harbour City Council

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

APPLICANTS Mr J Wilson, litigant in person

RESPONDENT LEGAL REPRESENTATIVES: Mr B Langler, solicitor SOLICITORS MBT Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10533 of 2005 Roderick John Wilson & Ors v Coffs Harbour City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the deemed refusal of DA 1561/04 by Coffs Harbour City Council (the council) for the construction of four two-storey dwellings and a community title subdivision of these dwellings at 786 Pacific Highway, Sapphire Beach (the site). The site 2 The site is Lot 2 in DP 1045219. It is irregular in shape with a maximum width of approximately 30 m and a total area of 2,462 sq m. The site is vacant and has a gentle slope at its western end and falls steeply at its eastern end with a pronounced escarpment between the different slopes.

3 The land to the north contains a two-storey residential flat building and the land to the south contains a large residential flat building known as "Sapphire Pines". This building consists of one three-storey block and one five-storey block. Relevant planning controls 4 The site is zoned 2A Low Density Residential under Coffs Harbour Local Environmental Plan 2000. The proposed use is permissible with consent in this zone.

5 The council's Low Density Housing Development Control Plan (the DCP) also applies.

6 The site is subject to other planning instruments but the council raised no issues that relate to these documents. The issues 7 The council filed a Statement of Issues containing 11 issues and a number of sub-issues but following further discussion between the parties and the provision of amended plans, the issues in dispute were limited to: 1) overshadowing of units in Sapphire Pines, principally Unit 26 Issues 2.7, 2.8, 4 and 5), and 2) overlooking of units in Sapphire Pines (Issues 2.6 and 4). 8 The other remaining issues relating to fill (Issue 2.5) and drainage (Issue 6) were addressed to the council's satisfaction through the conditions, although there was some disagreement on the council's drainage condition. The evidence 9 The parties agreed to the appointment of Mr Paul Snellgrove as the Court appointed town planning expert. Additional town planning evidence was provided by Ms Lyn Green for the council and Mr Ken Maguire for the applicant. The Court also heard evidence on-site from several residents and Unit 26 in Sapphire Pines owned Mr and Mrs Dodd was inspected and an assessment made of the proximity and features of the proposed development from this unit and outdoor patio area. Overshadowing 10 There was general agreement that the most significant issue in the proceedings was the effect of overshadowing on Unit 26. The DCP addresses solar access by requiring that: "Buildings should be designed to allow at least two hours of sunshine upon the living areas of adjacent dwellings and open space areas between 9.00 am and 3.00 pm on 22 June." 11 The applicant provided shadow diagrams and while there was some dispute over the accuracy of the diagrams at the earlier stages of the assessment process, the experts generally agreed on the accuracy of the shadow diagrams. There was however, a range of evidence on the consequences of the overshadowing and how the overshadowing related to the DCP requirement.

12 While accepting the general accuracy of the shadow diagrams, Ms Green maintained that they did not properly reflect the overshadowing of the Dodd's property, as there were no details of shadowing from existing features, such as embankments and existing buildings. In her opinion, the impact could not be properly assessed without this information. Overall, she stated that the impact was inconsistent with the DCP requirements.

13 Mr Snellgrove maintained a similar view but accepted that the DCP requirements were met based on the impact of the proposed buildings. He did however reinforce the need to consider existing shadow impacts and any assessment of shadow impacts should be based on the cumulative impacts of the existing shadows and those generated by the proposed development. 14 Mr Maguire stated that the proposal did not unacceptably impact on the Dodd property and that the DCP requirements were satisfied.

15 Mr and Mrs Dodd provided their evidence on site and in the absence of shadow diagrams that showed the effect of existing features, indicated that in mid-winter their patio area and internal rooms have no sunlight after around midday to 12.30 pm. This is the result of shadowing from existing vegetation, an embankment and shadows cast from their own building. At present there is also no dividing fence between the site and the Dodd property. Mr and Mrs Dodd also disputed the shadow diagrams that showed no sunlight to their internal rooms because of the overhang of the balcony of the unit above. They maintained that in mid-winter there is a band of sunlight approximately 2 m wide across their living room.

16 In considering the impact of overshadowing, I agree with the general concerns expressed by Ms Green and Mr Snellgrove. To properly address this issue, it is necessary to know the existing overshadowing impacts. This information was unfortunately not available at the hearing. In my view, it is not sufficient to simply base an assessment on the impact of the proposed development. 17 The planning principal in Pafburn v North Sydney Council [2005] NSWLEC444 for assessing impact on adjoining property asks, "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". This question cannot be answered on the evidence before the Court as there is no evidence of the shadowing created by the existing development, likely development (such as fences) and natural features. It is not uncommon for development proposals to show both the existing and proposed shadow impact to assess the cumulative impact and to determine whether that impact is acceptable.

18 The conclusions of Ms Green and Mr Snellgrove are also consistent with the planning principle in Parsonage v Ku-ring-gai Council [2004] NSWLEC 347. Even if it was established that the DCP requirements were satisfied, the planning principle in Parsonage states that even compliance with an adopted standard may cause an unacceptable amenity impact. The planning principle in Parsonage also states "numerical guidelines should be applied with a great deal of judgment". The consideration of other overshadowing sources, in addition to the proposed development, is also endorsed in Parsonage. 19 In this case, the Dodd property loses its sunlight around midday to 12.30 pm in mid-winter so that solar access between 9.00 am and midday is critical. Putting aside the extent of existing shadowing, the shadow diagrams show that at 9.00 am a large portion of the courtyard is in shadow and that the shadow extends to the wall of the unit. To complicate matters, the elevation shadow diagrams that show the extent of the shadow that intrudes into the unit was inconsistent with the observations of the Dodds. At 11 am, the shadow recedes from the building but still occupies a large portion of the courtyard area. At 1.00 pm the shadow is limited to an area along the common boundary with the subject sites. In my view, this impact shown by the shadow diagrams is significant considering the importance of the time between 9.00 am and midday for solar access to the Dodd property.

20 Clearly, the limited existing solar access calls for a "great deal of judgment" in assessing any potential impact on the limited available area. I accept that strict reliance on a prescriptive standard (even if it was satisfied) is an inappropriate method when winter sun is at a premium.

21 I also note that no details are provided on boundary fencing. This fencing could also potentially impact on shadowing of the adjoining property because of the topography and lot orientation. Because of the limited sunlight currently available to the Dodd property, I am not satisfied that even considering the orientation of the lots, the generous set-backs and height of the dwelling on Lot 2 that the relationship with the Dodd property is acceptable, based on the evidence presented to the Court. 22 In coming to this conclusion, I accept that the proposed development is not without some merit. The issue of overshadowing is the only significant issue in the proceedings and is the result of only the upper level of one dwelling. While attempts were made at the hearing to consider amendments to increase the solar access to the Dodd's property, no obvious solutions were available. It may well be that the level of development sought by the applicant may not be able to be achieved and other design solutions may need to be explored. Other issues 23 The issue of loss of privacy is adequately addressed through proposed screens and with the reduction in some balconies. Any additional noise generated by vehicles on the proposed driveway is not likely to be significant, based on the scale of development.

24 In my view, there are no other issues raised that would warrant the refusal of the application. Orders 25 For these reasons, the orders of the Court are:

1. The appeal is dismissed. 2) DA 1561/04 for the erection of four two-storey dwellings and the community title subdivision of the dwellings at 786 Pacific Highway, Sapphire Beach, is refused. 3) The exhibits are returned.

              G T Brown
              Commissioner of the Court

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