The evidence
21The hearing commenced on site where I heard evidence from the chairperson of the executive committee of the adjacent residential flat building, No 188 Bronte Road on behalf of owners of units within that complex. A view of the site was undertaken, including internal inspection of units 11, 12, 9 and 3. The concerns raised were:
Height of the proposal is excessive and will result in loss of sunlight and outlook, particularly to unit 11;
The current approval is already excessive and results in adverse impacts to the property;
Loss of privacy;
Loss of amenity through noise, lighting and overlooking;
Additional parking demand and traffic associated with 11 parking spaces to be provided on site;
Overshadowing of clothes drying area.
22Expert town planning evidence was heard from Mr Stavis for the applicant and Mr Reid for the council.
23Mr Stavis is of the view that the development is consistent with the aims and objectives of the LEP and DCP, the council's planning controls and the earlier judgment in Yugaro 2010 , with particular reference to height, bulk and presentation to Short Street at each level. Mr Stavis compares the development to that approved by the consent and argues that the proposed development will have a net improvement to the amenity of the adjoining property to the south, No. 188 Bronte Road.
24Mr Reid disagrees and considers the development to be incompatible with the surrounding development and is too bulky, contrary to the council's planning controls, would be visually obtrusive when viewed from Short Street and is out of scale and character with development in that street. In addition, he considers the proposal is incompatible with and would have an adverse impact on the adjoining development at No 188 Bronte Road.
25The parties disagree on the FSR of the proposed development however, do agree that the FSR of the development approved by the consent is 1.22:1 and the DCP control for the site is 0.9:1. It is agreed that the proposed development has a FSR somewhere between 1.39 and 1.45:1 and that this is well in excess of that envisaged under the DCP controls.
26Mr Stavis considers that the proposed development is consistent with the character of the area, which he says is drawn from the school buildings on the opposite side of Short Street and more recent development approved to the south of the site and described in para. 8 of this judgment, as well as the desired future character for the area contemplated by the DCP. Mr Reid disagrees and says that the school development should not be used to determine the appropriate scale for development on the site due to the different zoning applying to that land (special use) and says the development should be measured against that within the block bounded by Bronte Road, Church Street and Short Street. That development is primarily one and two storey development and therefore he says what is proposed is out of scale with the locality. He also distinguishes the more recent development from that proposed saying that different circumstances applied in the assessment of those developments and accordingly, are not relevant to this matter. He does agree that the desired future character of the area is drawn from the objectives, strategies and controls contained within the DCP.
27In justifying the considerable variation to FSR, Mr Stavis considers that the affordability of the units is sufficient to allow the additional floorspace, height and non-compliance with the attic provisions of the DCP. Mr Reid takes the view that the development the subject of the application is not to be considered under the affordable housing provisions (section 4.12) as it does not include a VPA, does not pass the tests for additional floorspace contemplated by the clauses i.e. the environmental impacts of the additional floorspace must be deemed acceptable. He considers that the impacts of the additional building areas are unacceptable and accordingly, do not merit consent. Those impacts are the additional overshadowing caused from the floorspace, particularly the impact to unit 11, No 188 Bronte Road and the clothes drying area for that property and the adverse impact caused from the increased wall height of the proposal when viewed from the adjacent property. Mr Stavis argues that there is a net benefit in terms of solar access to the adjoining property when compared to the development authorised by the consent and that there is in part, an improvement to the outlook from the neighbouring property.
28A detailed shadow analysis was undertaken on behalf of the respondent (Exhibit 4). Whilst there is some dispute in relation to the conclusions drawn from those diagrams, it was agreed that the representation of shadowing impacts from both the proposed and approved developments were accurate.
29At issue was whether there should be any further impacts resulting from loss of sunlight as a result of the proposed development or whether compliance with the council's minimum requirements for solar access was sufficient. Part G2 of the DCP deals with solar access and the intent of the controls are:
To preserve solar access to north facing 'solar collectors' (such collectors include windows, photovoltaic cells, solar hot water/air panels, clerestory windows etc.), private open space and clothes drying facilities in all residential development.
30The identified solar impacts are to the windows in the northern and eastern walls of the adjacent residential flat building at No 188 Bronte Road. The performance criteria set in the DCP, in relation to adjoining development is that new development will not reduce the solar access of collector/s of an adjoining property to less than two hours per day in mid-winter except solar hot water and photovoltaic panels, full access must be maintained.
31Mr Stavis says that the development will meet the requirements of the DCP in that all of the windows affected by the development will receive the two hours minimum sunlight and in some cases there is a net improvement to windows compared to the impacts caused from the originally approved development. Mr Reid says that there should be no loss of solar access on the basis that the DCP requires that solar access is to be 'preserved' and that the additional impact is unreasonable and unacceptable because it arises directly from building height and bulk that will grossly exceed the maximum permitted FSR on an existing building that already substantially exceeds the maximum permitted FSR.
32In regard to outlook, Mr Stavis says that there is an improvement to the outlook from the living room window of unit 11, No 188 Bronte Road through the altered roof profile. Mr Reid does not agree with the methodology adopted by Mr Stavis in that the view considered is that looking directly towards the site whereas, Mr Reid considers the impact is beyond that view line and is therefore a poorer outcome due to the increased wall height of the attic level. The evidence provided shows the outlook from the kitchen of that unit is compromised.