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. Planning principle: impact on solar access of neighbours 6 The Australia-wide resource document for residential development, AMCORD, suggests that a development should not reduce the sunlight received by the north-facing windows of living areas of neighbouring properties to less than 3 hours between 9am and 5pm at the winter solstice. The NSW-specific Residential Flat Design Code, which applies only to apartment buildings of three storeys and over, recommends 3 hours of sunlight to the living rooms and private open spaces of 70% of apartments between 9am and 3pm, reducing it to 2 hours in dense urban areas. The Code does not specifically deal with the impact on sunlight received by neighbouring buildings, though one may assume that the same criteria apply. Where local controls contain numerical guidelines, they usually require the retention for neighbouring properties of 3-4 hours of sunlight on living room windows and private open spaces between 9am and 3pm at the winter solstice. 7 The Court must, of course, take into account whatever guidelines are relevant to an application. However, numerical guidelines should be applied with a great deal of judgment. Consider a dwelling that now receives sunlight all day. Taking away that sunlight from 9am till noon would satisfy most guidelines; and yet the occupants of such a dwelling are likely to perceive it as a devastating impact on their dwelling's amenity. The other side of the coin is that the impact on a neighbour's sunlight must be assessed in the context of the reasonable development expectations of the proposal and the constraints imposed by the topography and the subdivision pattern. Preserving 3 hours of sunlight on a neighbouring site may require an unreasonable reduction in the development potential of the proposal. 8 Numerical guidelines dealing with the hours of sunlight on a window or open space usually leave open the question what proportion of the window or open space should be in sunlight, and whether the sunlight should be measured at floor, table or a standing person's eye level. Numerical guidelines should therefore be applied with the following principles in mind, where relevant: · The ease with which sunlight access can be protected is inversely proportional to the density of development. At low densities, there is a reasonable expectation that a 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 not acceptable, even if it satisfies numerical guidelines. The poor quality of a 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. · To be assessed as being in sunlight, the sun should strike a vertical surface at a horizontal angle of 22.5o or more. (This is because sunlight at extremely oblique angles has little effect.) For a window, door or glass wall to be assessed as being in sunlight, half of its area should be in sunlight. For private open space to be assessed as being in sunlight, either half its area or a useable strip adjoining the living area should be in sunlight, depending on the size of the space. The amount of sunlight on private open space should be measured at ground level. · Overshadowing by fences, roof overhangs and changes in level should be taken into consideration. Overshadowing by vegetation should be ignored, except that vegetation may be taken into account in a qualitative way, in particular dense hedges that appear like a solid fence. · In areas undergoing change, the impact on what is likely to be built on adjoining sites should be considered as well as the existing development. 9 I apply those of the above principles that are relevant to the subject application. The proposal is in a low-density area, so the occupant of No 190 has a reasonable expectation to retain most of its sunlight. In addition, the house at No 190 was designed as a "solar house". 10 While the proposal (with the 22o roof pitch) will cast a shadow at 9am on the lower part of the northern glass wall of No 190, the area in shadow is less than half the area of the wall. In effect, the wall can be considered in sunlight for the whole of the period 9am to 3pm. In reality, however, the occupant of No 190 will experience a loss of sunlight between 9am and 11am, because part of its north-facing wall will be in shadow. 11 The applicant submitted drawings demonstrating that the south wall of Bedroom 1 of the proposal could be moved 800mm away from the common boundary. There would be a corresponding loss of open space on the north side of the proposal, a loss that I do not consider significant. According to the applicant, there would be an additional cost of about $20,000. 12 The benefit to No 190 of moving Bedroom 1 by 800mm would be about 30 minutes of sunlight. That is to say that moving Bedroom 1 would result in the shadow moving about 30 minutes earlier compared to Bedroom 1 remaining in its present position. 13 The question before me is whether the Court should impose a condition requiring Bedroom 1 to be moved, given that the applicant opposes such a condition, the council does not recommend it and there are costs arising from the change. On balance I conclude that the condition would not be justified. While No 190 will lose some sunlight, its north-facing glass wall will receive some sunlight from 9am at midwinter, and more on the other days of the year. The financial burden to the applicant of imposing the condition would be significant. 14 In the circumstances I agree to the making of the consent orders sought, subject to the roof pitch being lowered to 22 degrees, a condition that the applicant accepts. Orders 1. The appeal is upheld. 2. Development application to demolish the existing dwelling and erect a detached dual occupancy on lot 37 DP 810909, known as 192 Bannockburn Road, Turramurra is determined by the grant of consent subject to the conditions in Annexure A. 3. The exhibits are retained on the Court's files. ___________________ Dr John Roseth Senior Commissioner 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.