Parsonage v Ku-ring-gai [2004] NSWLEC 347

Land and Environment Court of New South Wales

CITATION : Parsonage v Ku-ring-gai [2004] NSWLEC 347 Applicant: Stephen Parsonage PARTIES : Respondent: Ku-ring-gai Council FILE NUMBER(S) : 10225 of 2004 CORAM: Roseth SC KEY ISSUES: Development Application - Development Standards :- Planning principle: impact on solar access of neighbours LEGISLATION CITED: CASES CITED: DATES OF HEARING: 15/06/2004 DATE OF JUDGMENT: 06/30/2004

Mr S Kondilios, solicitor LEGAL REPRESENTATIVES: Mr R Graham, solicitor

JUDGMENT: - 5 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC

30 June 2004

10225 of 2004 Stephen Parsonage v Ku-ring-gai Council

JUDGMENT 1 SENIOR COMMISSIONER: This is an appeal against the refusal by Ku-ring-gai Council (the council) of a development application to demolish the existing dwelling and erect a detached dual occupancy on lot 37 DP 810909, known as 192 Bannockburn Road, Turramurra. 2 The parties have come to an agreement and seek consent orders from the Court. An objector, Mr Richard Hall, who lives at 190 Bannockburn Road adjoining the subject land to the south, maintains his objection, principally because it overshadows his living area and courtyard until 11am at the-winter solstice. In order to reduce the overshadowing, the applicant has accepted a condition reducing the pitch of the roof from 27o to 22o. Mr Hall, who is represented by a town planner, Mr N Juradowitch acknowledges that the lowering of the roof pitch improves his situation. Mr Hall nevertheless asks the Court to impose an additional condition requiring a section of the proposed two-storey house to be set further back from the common boundary by 800mm. The applicant does not accept the condition, arguing that the overshadowing impact is acceptable (and was acceptable even before the lowering of the roof pitch). The council agrees with the applicant's position. 3 Mr Hall argues that his house was built to capture sunlight and that it has gained an award for solar design. It now receives sunlight all day and any loss of sunlight would reduce its passive solar performance. Thus the Court has before it a proposal on which there is only one issue, namely the impact on the sunlight access of No 190. The issue is not between the council and the applicant, but between the objector, on the one hand, and the council and the applicant, on the other. 4 The application is made under State Environmental Planning Policy 53 (SEPP 53), which includes only the qualitative requirement that there should be adequate sunlight to the main living areas of neighbours. The Policy refers to AMCORD for quantitative assessment. The proposal more than satisfies AMCORD, yet there remains a lingering doubt in my mind whether the impact on No 190 could be mitigated without significant detriment to the proposal? 5 Since the impact on the sunlight access of adjoining property is the only issue, it is appropriate for the Court to set down the principles on which the impact on sunlight can be assessed.