> Land and Environment Court of New South Wales CITATION : Ray Fitz-Gibbon and Associates v Warringah Council [2003] NSWLEC 337 APPLICANT Ray Fitz-Gibbon and Associates PARTIES : RESPONDENT Warringah Council . FILE NUMBER(S) : 10538 of 2003 CORAM: Moore C Development Application :- Consent orders proposed for Court adoption KEY ISSUES: Resident objectors Lack of solar access to private open space . LEGISLATION CITED: Warringah Local Environmental Plan 2000 CASES CITED: DATES OF HEARING: 23/10/2003 EX TEMPORE JUDGMENT DATE : 10/24/2003 APPLICANT Mr A Galasso, barrister SOLICITORS LEGAL REPRESENTATIVES: Staunton Beattie RESPONDENT Mr D Thomas, solicitor Wilshire Webb JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10538 of 2003 Moore C 24 October 2003 Ray Fitz-Gibbon and Associates Applicant v Warringah Council Respondent Judgment 1 This is an appeal against the refusal on 15 April 2003 by Warringah Shire Council of development application 1018 of 2002 for eight detached dwellings at 118b Parkes Road, Collaroy, being Lot 1 in DP 788811. The reasons given for the refusal by the council in its notice of determination issued on 5 May 2003 were, first, that the landscaping does not meet council's requirements; second, sunlight provision during winter time does not afford sufficient sunlight to the designated open spaces of the eight units and, third, that it is an overdevelopment of the site. 2 The site is of an area somewhat in excess of 3,300 m2 after excluding the axe handle corridor which it shares with a number of other dwellings. It is very roughly rectangular in shape with a bend inwards towards the centre on the southern side. The site is generally oriented an east-west direction and forms a bench on a south facing slope with extensive views over the Cromer valley and Cromer industrial area, and more distant views to the east towards the ocean. Whether or not the topography of the site is as a result of excavation on the slope is not relevant in these proceedings. 3 The application proposes the erection of eight detached dwellings along the site, all of which would be oriented on a generally north-south basis. The driveway is proposed to be to the northern side of the site, that is, under the lee of the uphill slope to the site with generally the private open space to the proposed dwellings to be to the south, or to the downhill sloping edge on the southern side of the site, to take advantage of the views and aspects that are there available. 4 The matter came to the Court by appeal against the refusal of the council but now comes to me to determine by way of proposed consent orders brought to the Court by the parties. There were, however, three objectors to the proposal who wished to give evidence in the proceedings and each of those three objectors were heard. 5 The first of those objectors was Mrs M Cornish, whose residence is accessed from Gilmore Avenue which is to the south of the access handle to the present subject site at approximately two-thirds of its distance from Parkes Road to the area upon which construction is proposed pursuant to this application. The second objector to be heard was Mr Nolan, whose property is located to the northwest of Mrs Cornish's property but is accessed from the common axe handle to the subject site, and the third objector was Mr S Spencer, whose property is to the northeast of both Mrs Cornish and Mr Nolan facing the axehandle. 6 The development is proposed to be a staged development with the matters before me for determination relating entirely to works proposed to be undertaken on the main bulk of the site, that is, works for the construction of the dwelling houses and associated drainage, landscaping, the onsite driveway construction and the like. There is nothing that is before me in these proceedings that relates to the construction or reconstruction of the main access driveway, that being a matter left, by consent of the parties, to a future development application after issues of owners' consent are determined. The issues of owners' consent are not relevant to me in these proceedings. 7 A good deal of the matters that concern the objectors related to issues arising out of the construction or proposed reconstruction of the main driveway. Although these were the subject of inspection during the view, they are not strictly matters that are before me, except to an extremely limited extent, arising from the provisions of proposed condition 1A of the agreed conditions of consent, (at least in the council's version), which would require the specification in this consent, if given, to a number of activities being mandated for the elements of the reconstruction of the main driveway. 8 The only two matters of possible relevance to the works proposed on the part of the site that are the subject of the present application, arising out of the evidence of the witnesses, relate to the concerns expressed by the residents as to additional vehicle traffic which might take place along the driveway and these arose specifically, on my reading, out of primarily the evidence of Mr Spencer. The number of vehicles that would traverse the driveway, however, is a necessary function of the number of dwellings for which approval is sought as a consequence of the application. The objectors' evidence also raised the issue of solar amenity for the dwellings. 9 The Warringah Local Environmental Plan 2000 deals, within its provisions by taking a locality approach rather than by taking a zoning approach and by identifying some 73 separate localities within the Shire. The site which is the subject of these proceedings is within locality B7, the Narrabeen Lakes Suburbs, and there are a number of matters relating to the desired future character of the locality about which the applicant and the council are in agreement as to the consistency of the proposed development with that desired future character. There is no evidence before me arising out of the objectors or from the view that would cause me to cavil with that conclusion reached jointly by the applicant and the council on this. 10 There are a number of specific matters that are subsequently dealt with relating to the built form of the proposed development within the locality and generally the buildings proposed for the site are either in conformity or, because of the nature of the site, for example, with respect to rear building setbacks and the like, are not practically relevant for the present proceedings. The only locality specific issue which does arise for consideration arises out of the requirement for landscaped open space which is dealt with at page 218 of the Local Environmental Plan. This requires, amongst other things, that the minimum area of landscaped open space is forty per cent of the area except on land equal to or greater than 3,000m2 in area where a fifty per cent minimum shall apply. 11 There are a number of specific provisions relating to the measurement of landscaped open space, the first three of which were not in contention in these proceedings and the fourth of which, which has a requirement of a minimum soil depth of one metre in landscaped open space areas, is not capable of precise determination in the present proceedings but is capable of being dealt with by condition. Therefore, this matter is not determinative, certainly, and nor is it practically of concern in these proceedings. However, the site does not comply with the minimum fifty per cent landscaping requirement, it achieving a proposed landscaping requirement of approximately forty four per cent. 12 The more detailed descriptive provisions (as opposed to numerical assessment) relating to landscaped open space which are contained in the general principles set out in Part 4 of the Local Environmental Plan are contained in cl 63, which sets out a number of broader criteria against which the adequacy of the characteristics of the landscaped open space should be assessed. I do not consider it necessary to recite each of the bullet points that are contained in cl 63. It is sufficient, in the present context, to say that given the nature of the site, being a bench on a hillside which is otherwise significantly both spatially and visually detached from its neighbouring properties to the north, and from the council reserve and the industrial area to the south, I am satisfied under all the circumstances that the landscaping would be acceptable if I were minded to approve the remainder of the proposal. 13 The particular area of the proposal which is of greatest concern, as I indicated to the parties during the course of the proceedings, relates to the provisions of cl 64 of the general principles contained in Part 4 of the Local Environmental Plan. Clause 64 deals with private open space and is effectively in two parts. The first part deals with a number of general principles and the second part deals with the calculation of minimum dimensions for the proposed private open space. There is no issue in the present circumstances that the private open space fails to satisfy the minimum dimensions, and it is therefore satisfactory and acceptable in this regard, providing a minimum of sixty square metres at ground level for each of the proposed dwellings. 14 The four broad statements that commence the discussion of private open space in the LEP require, firstly, that private open space is to be provided for all housing, and that provision is met by this application. Secondly, such private open space must be clearly set apart for private use and, subject to some minor but not determinative comments that I will deal with later in the assessment of the solar access issue, that is generally satisfied or is capable of satisfaction in the conditions relating to landscaping. Thirdly, it is required to be directly accessible from the living area of the dwelling and capable of serving as an extension of the dwelling for relaxation, dining, entertainment, recreation and children's play, and there is no concern that that provision is not satisfied by this design. The concluding point is that private open space must be capable of receiving not less than two hours of sunlight between 9 am and 3 pm on June 21 over at least fifty per cent of the area of private open space in the case of ground level private open space and other than for apartment style housing. 15 The original assessment report that was made by the council officer reporting to the meeting of the council which determined to refuse the application deals with the built form controls in a table set out at page 48 of the reports to that meeting. It does not in that table deal with the issue of compliance with cl 64. Clause 64, to the extent that it is addressed by the officer's report, is dealt with at page 50 of the document and reads in its entirety as follows: "Clause 64, private open space. Comments. All the eight proposed dwellings achieve more than sixty square metres private open space as required by the "Warringah Local Environmental Plan 2000." 16 I note that the officer, therefore, makes no comment as to the compliance or otherwise of the private open space as to solar access. As I mentioned earlier in the course of these reasons, the second of the grounds given by the council for its original refusal of the application was the inadequacy of the solar access to the private open space areas of the dwellings. 17 During the course of the hearing, the applicant submitted revised shadow diagrams reflecting a change which had been made to the principal drawings concerning the location of a service vehicle turning area. Consideration of the solar access issues in evidence by Mr Blyth, a consultant town planner retained by the applicant, was given on the basis of the revised shadow diagrams which appeared as exhibit M in the proceedings and which were amended by leave and with the consent of the respondent council to correct errors to the 9 am and 3 pm diagrams which retained elements of shadows from the twelve noon diagram and would otherwise have exacerbated, to a minor degree, the degree of shadowing at those earlier and later times. 18 Consideration of the shadow diagrams in conjunction with the layout of the dwellings, particularly as demonstrated on the landscape plan, shows as follows. (i) With respect to the private open space at ground level for dwelling one, no portion (or, if any portion, a minuscule portion) of the private open space of that dwelling would receive any sunlight whatsoever between 9 am and 3 pm at the winter solstice; (ii) A similar position applies with respect to dwellings two, three and four; (iii) With respect to dwellings three and four, there is a small area of lawn at the front of those dwellings to the northeast of dwelling three and to the northwest of dwelling four which might provide some amenity to the dwellings, and there is no question that they will be in sunlight for the whole of the relevant period save to whatever limited, and it is likely to be extremely limited, if not nil, impact of shadowing from uphill structures above the escarpment to the north. However, the area that is private open space to those dwellings receives no solar access during the period of nine to three on the winter solstice. (iv) Dwelling number five is a dwelling which is proposed to be constructed in a fashion and laid out so that there is a private open space area to that dwelling to the south which would receive no sunlight during the relevant hours, but it does have a proposed paved terrace and lawn area to the west and northwest of the dwelling, which from the shadow diagrams would satisfy the requirements of cl 64 of the LEP as to the receipt of sunshine between the hours of nine to three at the solstice. (v) Proposed dwelling six is similarly provided with an adjacent area in its instance to the east of the dwelling, which would attract significant sunshine between the hours of nine and three, and certainly would satisfy the provisions of cl 63. I note that in response to a question, Mr Blyth acknowledged that the landscape plan shows lawn to the edge of the driveway so that strictly that area is probably not private in terms of the definition, but I accept Mr Blyth's evidence that it would be appropriately dealt with by an amendment to the landscaping plan which would provide some screening by shrubbery to that area. I note that the privacy that would be required in reality, given the nature of the site, is probably only from persons driving past or walking past to access dwellings seven and eight; and (vi) Dwellings seven and eight are positioned so that there would appear to be a limited area adjacent to dwelling seven, which might receive an extremely modest degree of sunlight, but I am not satisfied that it would meet the required standards contained in cl 64 of the LEP. Proposed dwelling eight (as to its areas that are designated private open space to the south), would receive no solar access at the relevant periods of time. There is, however, a lawn area to the northwest of proposed dwelling eight which would receive the benefit of northern sunlight, and have a timber paling fence on its northern and uphill boundary which would provide a degree of amenity because it is private. There is no significant likelihood of overviewing from the west, there being a boulder escarpment at the western boundary of the property and a significant uphill slope to the north. 19 The issue that therefore arises for determination in these proceedings is whether in light of what I find to be the fundamental inability of dwellings one, two, three, four and seven to approach the satisfaction of the solar access standard contained in cl 64 of the Local Environmental Plan, the proposal should otherwise be approved as acceptable. 20 It was Mr Blyth's evidence in this regard, he having been called to give evidence by the applicant specifically to deal with this as the principal issue of his evidence, that there were a number of reasons why the design of the site was an appropriate one with the driveway to the north and the dwellings set towards the southern edge, primarily that such an orientation allowed the best appreciation of the views and general amenity of the southerly and coastal aspect that would be achieved, that sunlight through the design of the windows, the fenestration in the roof structure (the roof being skillioned), would compensate to a significant degree for the lack of solar access to the private open space areas, that the private open space areas to the south were conventionally accessed through the living areas and that it was in the interests of the residents to access the private open space to the south to take advantage of the general amenity so arising. 21 He also gave evidence that it was appropriate that the driveway should be located to the north. To locate the driveway to the south and to force the dwellings further to the north might have the effect of compressing the available area for courtyards enhancing the possibility of overlooking from dwellings that were above the escarpment to the north. His conclusion was that overall the development was acceptable as a consequence of the layout taken for the site by the architect and that the architect had come up with the best option under the circumstances. 22 Mr Blyth was asked by me whether the impact on solar access could be ameliorated by a reduction in the number of dwellings and a consequent greater separation between buildings, and he indicated that such an altered design would provide for more sun filtering through in those areas. 23 In response to questions in re-examination by Mr Galasso, Mr Blyth indicated that on the hypothetical position that none of the frontal areas to dwellings three and four or eight were considered in amelioration of the private open space or were overshadowed by the structures to the north, was the development otherwise acceptable? He concluded that, for the reasons he had outlined earlier why it was acceptable, it should still remain acceptable. He also noted that there should be an element of compensation, because of the good sunlight access into the dwellings, for the lack of solar access to the private open space. 24 The issue then arises for me to determine in light of the evidence and the non-compliances that I have outlined with the provisions of cl 64 whether the provisions of cl 20 of the Local Environmental Plan can be called in aid to provide assistance to this application. There are two ameliorative or reinforcing provisions in the LEP. One is cl 18 which says, which is if one would put it so, the hardening of the standards clause which says that strict compliance with development standards does not guarantee that you will get over the line. That is not a matter that is relevant in these proceedings. However, cl 20, which is entitled "Can development be approved if it does not comply with the development standard", is a clause to which I am obliged to have regard in considering whether or not the development should be approved despite the factual findings that I have made concerning the non-compliance of the majority of the dwellings with the solar access provision. 25 The provisions of cl 20 of the LEP provide that consent may be granted even if the standards are not met, providing the resultant development is consistent with the general principles of development control, the desired future locality of the area and any relevant State Environmental Planning Policy, and it then contains a provision which is not relevant, and a third provision that requires the reasons for granting consent to be made public if the standard is not to be met. 26 I am satisfied that the nature of the development is not such that it would fail either the second or the third limbs of cl 20(1) of the Local Environmental Plan in that the nature and quality of the development is generally in consistency with the desired future character of locality B7, and that there is no relevant State Environmental Planning Policy. The matter that I consider is determinative is the general principles of development control in regard to which I am entitled to consider the provisions of documents such as Amcord as to the satisfaction or otherwise that I should have as to the degree of solar access in addition to the provisions that are contained in cl 64 of the Local Environmental Plan. 27 I am satisfied under all the circumstances that the development is unacceptable because of the degree to which the development fails to meet the standards set out in cl 64, fourth bullet point on page 39 of the Local Environmental Plan. The fact that five of the eight dwellings effectively provide zero solar access during the six hour period between 9 and 3 pm at the winter solstice on a site that, with a less congested development would be capable of a treatment such as the treatment given to proposed dwellings five and six with areas to their side boundaries and then achieve a significant degree of (and probably compliance with) solar access, is an issue that I consider to be determinative in these proceedings. 28 Put simply, the combination of reasons two and three given by the council for the council's refusal of the development application originally, that is, that sunlight provision during winter months does not afford sufficient sunlight to the designated open spaces of the eight units and that it is an overdevelopment of the site taken together are correct. The absence of compliance with the sunlight provision, in my view, is a necessary consequence of the overdevelopment of the site. 29 This leads me to the conclusion that the orders of the Court should be: 1. The appeal is dismissed. 2. Development Application 1018 of 2002 for demolition of an existing dwelling and construction of eight detached dwellings at 118b Parkes Road Collaroy being Lot 51 DP 788811 is refused; and 3. The exhibits, except Exhibits A, B, C, D and M, may be returned. Tim Moore Commissioner of the 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.