Land and Environment Court of New South Wales CITATION : Chon & Kim v Hunters Hill Council [2004] NSWLEC 509 APPLICANT Chon & Kim PARTIES : RESPONDENT Hunters Hill Council FILE NUMBER(S) : 10265 of 2004 CORAM: Tuor C. Development Application :- alterations and additions to an existing house KEY ISSUES: solar access bulk and scale streetscape LEGISLATION CITED: Hunters Hill Local Environmental Plan No 1 CASES CITED: DATES OF HEARING: 06/09/2004 EX TEMPORE 09/07/2004 JUDGMENT DATE : APPLICANT Mr M Fraser Solicitors Lewarne & Goldsmith LEGAL REPRESENTATIVES: RESPONDENT Mr J Reilly Solicitors Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 7 September 2004 10265 of 2004 Chon & Kim v Hunters Hill Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Hunters Hill Council (council) of a development application for alterations and additions at 9 Luke Street, Hunters Hill. The application involves the partial demolition of the existing single storey house to the rear and construction of a new two-storey addition. The site and its context 2 The site is located on the eastern side of Luke Street opposite St Josephs College. It has a frontage of about 13.69m, a depth of about 32m and an overall area of 432sqm. There is currently a single storey house on the site. 3 The site shares boundaries with four properties that contain 7 dwellings. The property to the south, known as The Pines, 3-7 Luke Street, has four townhouses. Townhouses nine, eight, seven and six have their only area of private open space adjoining the site and facing north. To the north, the site adjoins three houses, which face Short Street. Planning Framework 4 The site is zoned Residential 2(b) under Hunters Hill Local Environmental Plan No 1 (the LEP) and is within a conservation area. Development Control Plan Number 15 - Residential Development (DCP No 15) is also relevant. The issues and evidence 5 The court heard evidence from the following residents: 6 Mr E Daley, 3 Short St Mr G Gorman, Townhouse 9, 3-7 Luke Street Ms J Charters, Townhouse 8, 3-7 Luke Street Mr P Van Raalte, Townhouse 7, 3-7 Luke Street 7 Mr E O'Hanlon, an architect, also gave evidence on behalf of the owners of townhouses eight and seven. 8 Mr R Albon, for council, and Mr B Hynes, for the applicant, provided expert planning advice. 9 The key issues can be summarised as: i. Whether the proposal will have an acceptable impact on the solar access of townhouses nine, eight and seven; ii. Whether the bulk of the proposal is acceptable from these properties and the properties in Short Street, particularly number 3, which is a heritage item; iii Whether the proposal will have an acceptable impact on the streetscape; and iv. Whether the proposed garden area is sufficient. 10 The experts agreed that privacy issues could be resolved by conditions. Bulk 11 In relation to bulk, the evidence of Mr Hynes is that the proposal is below the height limit and set back to a greater extent on its southern boundary than required by DCP 15. In Mr Hynes opinion the massing that results from the height, setback and floor space ratio of the proposal is acceptable. 12 The proposal has a height of 5.97m to the under side of the ceiling and 7.19m to the ridge. The DCP requirement is 7.2m to the underside of the ceiling. The setback to the southern boundary of the ground floor is 2.3m, which is greater than the existing house, and 2.8m to the upper-level. These exceed the DCP requirement of 1.5 metres. On its northern boundary, the setback is 1.2m, which, while less than the DCP requirement, is the same setback as the existing house. 13 Mr Albon's opinion was that the site was constrained by its relationship to adjoining properties, particularly those to the south. The setback requirement in the DCP of 1.5 metres is an appropriate setback in relation to side boundary to side boundary. However in this situation, the side boundaries face the courtyards of the townhouses and of 3 Short Street. In his opinion even though the proposal complies with the height limit in the DCP and exceeds the setback requirements on its southern boundary, it results in unacceptable bulk when viewed from the courtyards. This is exacerbated by the change in level between the courtyards and the proposed development; the courtyards being about 500mm lower. 14 Mr O'Hanlon also considered that the bulk of the proposal would have an unacceptable impact on the courtyard areas as these are small and would be effectively enclosed by the proposal. 15 Mr Daley raised concerns about the non-compliance of the proposal with the DCP setback requirement, but his concerns were largely related to privacy impacts from the upper-level windows and lack of screening which can be dealt with by conditions. 16 I accept that the proposal will enclose the courtyards of the townhouses particularly; Number eight, however even with the change in level, the height of the proposal is within the height control and is set back further than required. The relationship means that the courtyards will look directly at the southern wall of the proposal, which will impact on the outlook and visual amenity of the courtyards. The degree of enclosure and impact on the visual amenity is not unreasonable within the Residential 2(b) zone, which clearly envisages two-storey development of a bulk and scale that is proposed. The impact of the bulk of the proposal on overshadowing and streetscape is discussed below. Overshadowing 17 The relevant objectives of the DCP in relation to solar access are: a. To provide reasonable access to sunlight to living spaces within buildings and open spaces around buildings. b. To encourage reasonable residential site planning and building design that optimises solar access to land and buildings. 18 The DCP requirement is that: New development must not eliminate more than one third of the existing sunlight to adjacent properties at ground level, measured at 9 a.m., 12 noon and 3 p.m. on the winter solstice. Buildings are to be designed to minimise loss of sunlight to adjacent buildings . 19 The experts generally agreed on the extent of overshadowing that would result from the proposal and that solar access to townhouse seven would not comply with the DCP requirements. Townhouses seven and eight would not comply with Amcord requirements and solar access to the windows would be reduced but would comply with Amcord 20 The key difference between the parties was whether this impact was reasonable considering the constraints of the site and those of the adjoining properties to the south. 21 In Mr Hynes opinion the courtyards are already significantly overshadowed receiving sunlight to less than 50% of their area in midwinter. The additional area of overshadowing in numerical terms is small and in his opinion would have little impact on the amenity of these courtyards as this is already compromised. While the overshadowing of townhouse seven will be reduced by greater than 30% the reduction in area is only small. At Table 2 of Mr Hynes Statement of Evidence, he summarises the existing areas in sunlight and the areas remaining as a result of the proposal. The courtyard of townhouse 7 has an overall area of 46sqm. The existing sunlight conditions at 9am are that 7.6sqm are in sunlight, which will not be affected by the proposal. At 12 noon about 19sqm is in sunlight which reduces to about 3.3sqm at 3pm. The proposal will reduce this area to 14.1sqm at 12 noon down to less than one sqm at 3pm. 22 Mr Albon's and Mr O'Hanlon's opinion is that the courtyards of the townhouses are orientated towards the north and are particularly important as the living areas of the townhouses face south. The courtyards and the kitchen and dining areas, which open off them, are therefore the only living/ recreation areas that enjoy reasonable solar access. At midwinter solar access to these areas is already compromised and in their opinion any reduction, although small numerically, has a more significant impact relative to properties that enjoy better solar access to their main living/recreation areas. 23 Mr Albon and Mr O'Hanlon considered the impact to be unreasonable as it would be possible to design a two-storey dwelling with similar additional accommodation without a significant reduction in solar access to the courtyards. 24 Mr O'Hanlon prepared an alternate design to illustrate that similar accommodation could be provided within an attic roof space which would reduce the impact of overshadowing and bulk on the adjoining properties and the streetscape. This alternative was discussed with the applicant's architect, Mr D Kong, who outlined the areas where it did not meet the requirements of his client. 25 In Parsonage v Ku-ring gai [2004] NSWLEC 347, Senior Commissioner Roseth provides planning principles to assess the impact of solar access on neighbours. The principles of relevance to this appeal are: · The ease with which sunlight access can be detected is inversely proportional to the density of development. At low densities, there is a reasonable expectation that the dwelling and some of its open space will retain its existing sunlight. (However, even at low densities there are sites and buildings that are highly vulnerable to being overshadowed). At higher densities sunlight is harder to protect and the claim to retain it is not as strong. · the amount of sunlight lost should be taken into account, as well as the amount of sunlight retained. · overshadowing arising out of poor design is unacceptable, even if it satisfies numerical guidelines. The poor quality of the proposal's design may be demonstrated by a more sensitive design that achieves the same amenity without substantial additional cost, while reducing the impact on neighbours. 26 In assessing the proposal under these principles, I recognise that the site is zoned Residential 2(b) which is a higher density zone that permits low scale townhouse development. However the application is for a single dwelling house that adjoins townhouse development. The dwelling house therefore has the potential to impact on four townhouses and the standard in the DCP that the existing sunlight not be reduced by more than 30% is considered to be reasonable within this context. 27 I accept that the numerical area of overshadowing that will be lost at midwinter is small however in the context where there is already substantial overshadowing of small courtyard areas this small numerical area in significant. 28 While overall the proposal may not be a poor design, its response to the overshadowing of the adjoining properties to the south is less sensitive than an alternate approach. The alternate scheme prepared by Mr O'Hanlon, while not a design that may suit the applicant, is indicative that there are other solutions that could provide similar accommodation with less overshadowing impact and less bulk. 29 I find that the proposal does not meet the objectives of the DCP in relation to overshadowing and that townhouse seven does not meet the numerical requirements and the proposal has not been designed to minimise loss of sunlight to adjacent buildings where it is feasible to do so. On this basis the application must fail. Streetscape 30 The residents and Mr Albon raised concerns about the impact of the proposal on the streetscape. In particular, Mr Albon stated that: The design of the proposed addition represents a reversal to the more standard approach to dwelling house extensions. Generally (but admittedly not without exceptions), the more substantial element of the house addresses the street, augmented by more modest rear extensions, often in the form of single storey pavilion style buildings or "lean to's". This is particularly the case in heritage conservation areas, such as the current circumstances. This more traditional approach is logical in the sense that it reduces the shadowing, privacy and other impacts associated with more imposing structures encroaching towards the rear of adjoining properties. 31 Mr Hynes, did not accept this proposition and considered that as Luke Street is narrow with only one footpath that adjoins its eastern side, opportunities to view the addition would be limited. He also considered that the relationship between the single storey cottage to be retained at the front and the two-storey addition was acceptable, particularly as the materials on the new and the existing building would be the same. He pointed out other examples of this type of addition in the area. 32 The other examples in the area demonstrate different approaches to adding two-storey elements at the rear of single storey cottages. I accept Mr Albon's evidence that the examples where the addition is sympathetic to the original cottage and which contribute to the streetscape are those where the rear addition is integrated into the form at the front, generally by providing accommodation within a roof form rather than as an extra storey. 33 In the context of two storey adjoining development, placing the two-storey element on the street frontage would also be consistent with the streetscape. Garden Area 34 The proposal does not meet the requirements in the DCP to provide 50% of the site as garden area. The area proposed is 46%, which is slightly more than the existing amount of garden area. I accept Mr Hynes evidence that the garden area meets the objective in the DCP that gardens are useful, accessible and have adequate sunlight and privacy. Orders 1. The appeal is dismissed. 2. The development application for alterations and additions to an existing house at 9 Luke Street, Hunters Hill, is determined by refusal. 3. The exhibits may be returned. __________________ Annelise Tuor Commissioner of Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.