> Land and Environment Court of New South Wales CITATION : Zreco Project Management v Burwood Council [2003] NSWLEC 316 APPLICANT Zreco Project Management PARTIES : RESPONDENT Burwood Council FILE NUMBER(S) : 10176 of 2003 CORAM: Bly C Development Application :- demolition of dwelling house and outbuildings and construction of six dwelling townhouse development KEY ISSUES: Streetscape and Character - Privacy and Solar access LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Burwood Planning Scheme Ordinance 1979 CASES CITED: DATES OF HEARING: 08/09/03 - 09/09/03 EX TEMPORE JUDGMENT DATE : 09/09/2003 APPLICANT Mr S Berveling, barrister instructed by Steven Kilinger LEGAL REPRESENTATIVES: RESPONDENT Mr T O'Connor, solicitor instructed by Houston Dearn O'Connor JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10176 of 2003 Bly C 9 September 2003 Zreco Project Management Applicant v Burwood Council Respondent Judgment 1 This appeal relates to the refusal by Burwood Council of a development application for the demolition of an existing dwelling house and outbuildings and the erection of a six dwelling townhouse development at 136 Burwood Road Croydon Park. Each of the six dwellings is to be two storeys in height with their own stair access to the basement car park. Two car spaces are to be provided for each dwelling plus two visitor parking spaces. 2 The site has a frontage of 15.24 m to the eastern side of Burwood Road with an area of 1540.2 sq m. It has a modest slope of about 1.7 m from the north east corner to the south west corner. The locality in which the site is situated comprises a mix of residential building types including two storey townhouses and villas and one and two storey detached houses of differing ages resulting in a diverse and mixed streetscape character. It is clear that the locality is undergoing change, generally consistent with the medium density zoning of the land. 3 The site is zoned residential 2(B1) under the B urwood Planning Scheme Ordinance 1979 . In this zone the proposal is permissible with development consent. The 2(B1) zone is one of four medium density zones in the Planning Scheme, with the 2(B1) zone having the lowest density. 4 Clause 56A of the Planning Scheme in effect sets a maximum building height of two storeys, which is complied with by the proposal. Clause 66 of the Planning Scheme effectively requires that in the 2(B1) zone there must be a minimum of 250 sq m of site area per dwelling and at least 125 sq m of landscaped area per dwelling. These development standards are met by the proposal. Also applicable to the site is council's Townhouse Code-Townhouse Type Development in Residential 2(B1) Zoned Areas. 5 The application was advertised and two objections were received. These objections expressed concerns in relation to overlooking and loss of privacy, excessive scale and bulk, inappropriate architectural form as well as heritage and character impacts. 6 Amended plans were subsequently advertised and again two submissions were received one of which expressed concerns in relation to possible inadequate construction management procedures. 7 Both the original application and the amended application were recommended for refusal by council officers. The application was refused by council on both occasions for reasons relating to adverse impact upon streetscape, excessive height and scale, inadequate deep soil landscaping, overshadowing of adjoining properties, unsatisfactory vehicular access and privacy issues. 8 On behalf of the respondent council expert evidence was given by Mr G Vickas, architect, and on behalf of the applicant by Mr S Harding, townplanner. A statement of issues containing eight separate issues was provided to the applicant and the Court. 9 Having considered all of the evidence and various changes to the proposal and having taken a view of the site and its environs, the salient issues to emerge involve amenity impacts resulting from the proposal on adjoining developments to the north and south and whether the internal amenity of the proposal would be satisfactory. These impacts include loss of privacy and solar access, with the latter being fatal to the application. 10 Whilst the issue of whether the proposal would be out of character with the area or whether it would have an adverse effect on streetscape was of less concern as a determinative issue, Mr Vickas was nevertheless concerned that the proposal exhibits unreasonably low streetscape character attributes under circumstances where an appropriate outcome is reasonably possible. In essence he believed that an appropriate design could be produced having far less bulk and far more quality landscaping. 11 Mr Harding disagreed explaining that the proposal would be compatible with adjacent residential development and would be consistent in terms of height, bulk and scale with nearby development and the existing character of the locality. 12 I heard no evidence to persuade me that in terms of streetscape the proposal would have any adverse streetscape consequences which would warrant refusal of the application. In this regard I particularly note that like the adjoining development to the north of the subject site the proposal is two storeys and has a similar character. Whilst the existing development to the north was criticised by Mr Vickas I do not accept that it is so unsatisfactory that it should be disregarded. The existing development to the south is mostly two storeys but is single storey nearest the Burwood Road frontage. 13 The proposal also has an appropriate setback from the street by comparison with these adjoining developments and complies with the height and side setback requirements. Whilst the driveway access to the basement will be a significant element in the presentation of this development to the street and might have benefited by a reduced width, the ability to landscape the front and side setback areas is sufficient to result in my conclusion that the proposal is satisfactory in terms of streetscape. 14 Finally in this regard I might comment that the two storey presentation to Burwood Road would have been improved by the provision of a single storey element as has occurred with a number of developments in the vicinity taking into account the width of the site, however its absence is not by itself fatal. More generally in terms of the character of the area I accept that this locality is changing as a result of the zoning of the land, also, to have six townhouses on this site notwithstanding that the proposed dwellings are perhaps larger than many others in the area would not be uncharacteristic. 15 Mr Vickas was concerned that the adjoining townhouse developments to the north and to the south would be the subject of overlooking from the upstairs bedroom and gallery windows of this development, such overlooking would be potentially into bedrooms, living rooms and courtyards. It is clear to me that the subject proposal is not especially sensitive to the issue of privacy, however I am inclined towards the opinion of Mr Harding that these matters should not be fatal to the application taking into account a number of factors. First, the distance of separation of about 9 m associated with overlooking between first floor windows and from first floor windows to living room windows on adjoining properties at ground floor level. Second, the applicant is prepared to change window arrangements in the design. Third, existing landscaping and landscaping opportunities for the provision of plantings of sufficient height to interrupt sight lines. 16 Whilst Mr Vickas by reference to the Australian Model Code did not accept that overlooking from bedrooms should be disregarded, I nevertheless accept Mr Hardings contention in this regard and am satisfied that such overlooking should be given less weight than the impact of overlooking from a living room. It is likely that there will be some overlooking of private courtyards from this development and whilst it would have been desirable for this to be avoided I have not been persuaded that it should be fatal to the application. Whilst the model code seeks to ensure that direct views onto adjoining private open spaces are restricted by screening and vegetation I accept that in medium density zones where two storey development is permissible and taking into account the constraints of this site and its surroundings complete protection of privacy would amount to an unreasonable constraint on the development of this site. That is not to say however that every attempt should not be made to provide as much privacy as is possible for existing courtyard areas. 17 I now turn to the matter of overshadowing of the courtyards in the townhouse development to the south and the overshadowing of the proposed courtyards from the existing development to the north, the matter which is fatal to the application. Whilst Mr Vickas was not concerned as to any loss of solar access into the existing townhouses to the south of the site he was particularly critical of the resulting overshadowing of the five north facing townhouse courtyards in the midst of that site during the winter months, he pointed out that these courtyards will lose most if not all sunlight, leaving them with substantially less than the desirable minimum standard indicated by the AMCORD guidelines. He also expressed concern that the courtyards in the proposal would have very poor solar access conditions in the winter months as a consequence of the existing development to the north including the very high boundary fence. Again, these courtyards would have solar access less than the AMCORD minimum guideline. He also expressed concern that as a result of the overshadowing of these courtyards quality landscaping is highly unlikely to survive. 18 Mr Harding conceded that the five townhouse courtyards to the south would be affected by additional overshadowing beyond that likely to be generated by a conventional boundary fence. He did not however accept that these townhouses would have unsatisfactory solar access because four of them would have at some time during the day various sized pockets of sunshine falling onto the ground. As for the proposed courtyards within the development he commented in his report that these courtyards would achieve a high level of energy efficiency. 19 Because no shadow diagrams were prepared for the proposed courtyards Mr Vickas prepared a cross section to provide an indication of the extent to which the proposed courtyards would be overshadowed. I have examined this cross section and taking into account the varying setbacks and eaves configurations of the buildings to the north and the existing high boundary fence I cannot but agree with Mr Vickas as to the likely extent of overshadowing of these courtyards. 20 Despite there being significant spaces between the three buildings which generate these shadows I do not accept that these spaces will provide any beneficial solar access to the courtyards because of the height of the existing boundary fence. Whilst these courtyards have direct access off living areas this does not mean that solar access can be forfeited, nor can the deficiency be excused by reference to the narrow courtyard returns between the buildings which might obtain some sunlight or to the common open space on the site. 21 As for the impacts on the townhouse courtyards to the south, I accept that these courtyards will continue to receive some sunlight at different times of the day but I nevertheless agree with Mr Vickas that the extent of available sunlight which would remain is insufficient, the additional impact thus being unsatisfactory. Even in the absence of the model code standards I would have reached the same conclusion. 22 In the circumstances I have decided that the appeal should be dismissed and the development application refused. 23 I should also make a number of general comments about the proposal. Whilst it was not determinative of the application I was interested to hear Mr Vickas's explanation as to how a different design for the site could avoid most of the problems associated with this proposal and it seems to me that his suggestions could form the basis for a new design for this site. As to whether this would result in a development with less floor space that is a matter for further consideration but if the problems associated with this current proposal result from the wish to provide six large dwellings then it may be necessary to reduce the amount of floor space sought. 24 I should also comment that it may be likely that a reasonable development of this site would still result in some additional overshadowing to the south but this will need to be significantly less than has resulted from the current proposal. Similarly, especially given the proportions of this site and its orientation to the north and given the very high fence along the northern boundary, some compromise in terms of solar access to proposed courtyards may be necessary but again solar access will need to be significantly improved by comparison with what is currently proposed. 25 I have already commented on possible changes in relation to streetscape. 26 Finally, there was some concern in relation to proposed Condition of Consent Number 11 which in turn raised questions in relation to Conditions 9 and 10, in this regard I agree with the applicant that Condition 11, particularly in the light of Condition 100, needs to be reconsidered. If the applicant is required to construct certain works on public lands as a consequence of this proposal it is not unreasonable for the applicant to pay for these, however if a bond or damage deposit is required this would need to be appropriately justified bearing in mind the enforcement provisions available in the Environmental Planning and Assessment Act 1979. 27 I might also comment that the problems associated with the conditions could and should have been dealt with at an earlier stage prior to the commencement of the hearing. Orders 28 The orders of the Court are therefore that: 1. The appeal is dismissed. 2. The development application for the erection of six townhouses at 136 Burwood Road Croydon Park is refused. 3. Exhibit B, the plans, is retained. ____________________ T A Bly Commissioner of the Court ljr 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.