Land and Environment Court of New South Wales CITATION : Hybler v Willoughby Council [2010] NSWLEC 1215 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Andrew Hybler PARTIES : RESPONDENT Willoughby Council FILE NUMBER(S) : 10349 of 2010 CORAM: Morris C KEY ISSUES: DEVELOPMENT MODIFICATION :- Deferred Commencement LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Willoughby LEP 1994 CASES CITED: Summers v Ashfield Council [2009] NSWLEC 1276 DATES OF HEARING: 6 August 2010 DATE OF JUDGMENT: 10 August 2010 Mr M Winram, Solicitor LEGAL REPRESENTATIVES: of Maddocks Lawyers Mr M Jaku, Solicitor of Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Morris C 10 August 2010 10349 of 2010 Hybler v Willoughby Council JUDGMENT 1 COMMISSIONER: This is an appeal in relation to the refusal, in part, by Willoughby Council of an application made under Section 96 of the Environmental Planning and Assessment Act 1979 which sought the removal of the deferred commencement provisions of a development consent, internal alterations to the approved dwelling layout and changes to windows. The appeal relates to the deferred commencement conditions only as the Council approved that part of the application that related to the building layout and windows. The site. 2 Number 15 Carr St, Chatswood (the site) is located on the eastern side of the roadway and has a frontage of 12.19 m, depth of 48.36 m and a total site area of 589.5 square metres. 3 Carr Street is a residential street, containing various style dwelling houses of both single and two-storey construction. The allotments on the eastern side of the street have an east-west orientation and the land falls significantly from east to west and also from north to south in the proximity of the site. 4 The site is zoned Residential 2(a) under Willoughby LEP 1995 (the LEP), is not within a conservation area and is identified as being prone to bush fire. The Willoughby Development Control Plan (the DCP) also applies to the property. Approved Development 5 The consent to Development Application No 797/2007 authorised the demolition of an existing dwelling, and the construction of a two-storey dwelling and front fence at Lot 6 PD 978614, Number 15 Carr St, Chatswood. That consent was granted by Willoughby Council (the Council) on 14 October 2009 and was issued on the basis of a deferred commencement consent. 6 The approved dwelling comprises a two-storey component at the front of the site and a single storey component towards the rear. 7 The deferred commencement provisions require: · The roof design for the dwelling is to be modified to remove the verandah roof area to the rear eastern portion of the dwelling, including the proposed columns supporting the verandah roof. The verandah is to be a completely open area except for a narrow eave at a maximum 400mm width. · The RL value of the floor level of the rear single storey section of the new dwelling (56.91) is to be reduced in height by a minimum 500mm. · The underside of the eave of the rear family room to the southern elevation is to be reduced in height to a maximum RL level of 58.85. · The RL value of the ridge level over the family room area is to be reduced in height by a minimum 500mm. 8 This appeal seeks the deletion of these conditions. The conditions relate to the single storey component of the proposed dwelling only and do not impact on the front two storey section. The verandah is proposed to be located in the south-eastern corner of the building and has dimensions of 4.6m x 3m. Planning controls 9 Willoughby LEP 1994 permits dwelling houses with consent in the residential 2(a) zone. The objectives of the 2(a) zone are to accommodate dwelling houses and other land uses, which are compatible with the existing housing. 10 Clause 13D of the LEP is relevant to the application and is a consideration of amenity. It requires that consideration be given as to whether a proposed development is likely to have an adverse impact on an adjoining or nearby property by causing loss of views, loss of privacy or a reduction of sunlight to the living areas or principal open space recreation areas, and whether (a) there are no other design alternatives that would mitigate the impact, or (b) there are special circumstances applying to the site for its context. 11 Section D.2.9 of the DCP establishes solar access performance criteria and controls. The intent of the section is to 'maximise the energy efficiency of buildings and to ensure sufficient solar access to living areas within dwellings and to open space around dwellings'. The issues 12 The issues before the Court are the impact of the proposed development on the adjoining property to the south in relation to solar access, whether the development meets the intent of the Council's planning controls and the reasonableness of the proposed deferred commencement consent conditions that the Council has imposed to address this issue. The Evidence 13 This was an onsite hearing so I had the benefit of viewing the proposal from the two adjoining neighbouring properties, the owners of which had lodged objections to the council. 14 I heard evidence from the owners of both of those properties in relation to their concerns regarding the proposed development and viewed the site from their land in order that they could indicate precisely the concerns they had. 15 The owner of the property to the south of the site, No. 13 Carr Street, expressed major concerns in relation to the development and its impact on the solar access currently enjoyed in his living room. He states that the living area was designed to maximise sunlight in winter whilst maintaining the floor levels of the original house. He considers that the design minimised privacy impacts on neighbours and accommodated topography constraints whilst facilitating accessibility needs of his family. He was concerned that the proposed development did not satisfy Council's planning controls, particularly in relation to solar access. 16 The owner of the property to the north, No. 17 Carr Street, was concerned about the height and bulk of the proposed building and the loss of privacy that he considers will occur. 17 Expert town planning evidence was provided by Mr Glendinning for the applicant and Mr Sanders for the respondent. These experts provided views on the matters to be assessed under clause 13D of the LEP, the solar access requirements of the DCP and the shadow diagrams. 18 Mr Glendinning considered that clause 13D provided for special circumstances so that compliance with solar access would not always be required. In his opinion, the fact that No. 13 Carr Street had been excavated in the vicinity of 2 metres meant that special circumstances applied. He described the living area of the dwelling on this land as 'sub-terrainian' and due to the extent of cut, could not be expected to retain solar access on redevelopment of the land to the north. He stated that the upper level and deck at the rear of the dwelling at No 13 Carr Street would enjoy the requisite 3 hours sunlight in winter and the lower areas would receive sun in winter. He considered that this would be acceptable and that it would be possible to convert the study at the upper level of the dwelling to a living area. 19 Mr Sanders took a contrary view and stated that planning test for solar access is that living areas are to receive a minimum of three hours sunlight at the winter solstice. He stated that the reference to 'special circumstances' in clause 13D related to those circumstances where the minimum solar access could not be achieved. He acknowledged that the development as approved by Council would not achieve the 3 hours sunlight to the adjoining premises. Therefore he considered that the condition imposed to reduce the height of the proposed dwelling, so as to provide some solar access to the living area at No 13 Carr Street, was reasonable. 20 Both experts agreed that the shadow diagrams submitted provided a true representation of the impacts of the proposed development on the adjoining property. 21 There is agreement that the private open space of the adjoining dwellings will receive the required solar access and that a new fence will not affect the solar access to the living areas of the adjacent dwelling. 22 The shadow diagrams indicate that the living area of the adjacent dwelling currently receives some sun at 9am increasing to full sun at noon and reducing until no sun is received at 3pm on the winter solstice. 23 Details of the impact of the proposed dwelling without the height reduction show that the living areas would be fully shaded at 9am, would receive a slither of sun to the top of the windows at 10.30am, some sun on the top portion of half of the windows at noon and no sun by 1.30pm. Accordingly, the living room would not receive the required 3 hours sunlight. 24 Figures 36-40 of the shadow diagrams detail the impact of the proposal as approved by Council with the 500mm reduction in roof and eave height of the dwelling. At 9am the living room of the proposed dwelling is in shadow, at 10.30am approximately half of the window receives sun, at noon, half of the windows receive sun to half of the panes and at 1.30 pm, the entire window area is shaded. It is apparent that even with the reduction in height of the proposed dwelling, the living area of the adjoining dwelling will not receive the required three hours sunlight. 25 The matter that is to be determined is whether the difference made by reducing the height of the dwelling is significant and therefore warranted. 26 Mr Glendinning considers that the dwelling at No 13 Carr Street is poorly designed and this contributes to the loss of sunlight and as the Council's DCP requirement includes the words 'where possible' compliance with the standards for solar access need not apply. He is of the view that the difference in solar access by the reduction in height of the proposed dwelling is small only and 'places an unacceptable burden both form a lifestyle and amenity perspective and cost perspective on the applicant'. 27 Mr Sanders accepts that the changes are minor however is of the view that marginal changes would have a material difference of the amenity of the adjacent dwelling and accordingly, the reduced height is justified. Conclusions and Findings 28 I note that the aims and objectives of the Residential 2(a) zone are to accommodate dwelling-houses and other land uses which are compatible with the existing housing and that Clause 13D of the LEP requires consideration of whether proposed development is likely to have an adverse impact on an adjoining property by causing a reduction in sunlight. These requirements are further detailed in the DCP which stipulates that where possible, buildings should be sited to maintain approximately 3 hours of solare access between 9am and 3pm on 22 June to living area and the principal open space recreational areas of adjoining properties. 29 The proposed development, with or without the reduction in height of the rear, single storey component, fails to meet the DCP requirement of 3 hours sunlight being provided to the living area of the adjoining dwelling to the south. 30 Whilst the evidence shows that the proposed development meets all of the numerical standards apart from a minor breach of building height, which is said to be inconsequential, that is only part of the assessment of compliance. A development must also satisfy the qualitative considerations, which include the solar access provisions. 31 I consider that there is a need to protect the amenity of the adjoining residential property and that it is possible to provide solar access to that property in a way that, whilst not fully complying with the Council's DCP provisions, will provide a material improvement to that amenity. That is by way of reducing the height of the dwelling as proposed by the Council in the deferred commencement conditions. 32 I find that the amendments would make an appreciable and measurable improvement in the solar access that would be received by the adjoining dwelling. This is a distinction from the development considered in Summers v Ashfield Council [2009] NSWLEC 1276 where the impact of a proposed height reduction only provided a sliver of sunlight to the adjoining dwelling. 33 I consider that the changes contemplated by the Council are not unreasonable nor impact on the amenity or useability of the proposed dwelling. Orders 34 The orders of the Court are: 1. The appeal is dismissed; 2. The application to modify Development Consent No DA-2007/797/A(C) by the removal of the deferred commencement conditions is refused. 3. The exhibits are returned. ___________________ Sue Morris Commissioner of the Court 10/02/2011 - Typographical amendment made to paragraph 32 - Paragraph(s) 32 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.