Land and Environment Court New South Wales Medium Neutral Citation: Stephenson v Hurstville City Council [2012] NSWLEC 1289 Hearing dates: 31 August 2012 Decision date: 17 October 2012 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal dismissed Catchwords: DEVELOPMENT APPLICATION - Additions to existing commercial premises - Overshadowing - Visual impact, bulk and scale - Zone transition Legislation Cited: Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 1994 Cases Cited: Pafburn v North Sydney Council [2005] NSWLEC 444 Parsonage v Ku-ring-gai Council [2004] NSWLEC 347 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 The Benevolent Society v Waverley Council [2010] NSWLEC 1082 Category: Principal judgment Parties: Wayne Stephenson (Applicant) Hurstville City Council (Respondent) Representation: Solicitors Mr J Burrell, J Burrell Solicitors (Applicant) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 10630 of 2012 Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to Development Application No. 11/DA-156 for additions to the rear of premises from which Beverley Hills Mowers and Chainsaws has operated its business for a number of years at 108 Stoney Creek Road, Beverly Hills (the site). 2The development application was lodged on 12 May 2011. The plans have been modified since the application was originally lodged and those now before the Court propose the construction of a two storey addition comprising ground level parking and loading area and first floor store and accessible toilet. It is also proposed to construct a carport at the north-western end of the site. The Council refused consent on 16 May 2012. 3The contentions in the case are whether the overshadowing impacts of the development are acceptable and whether the bulk and scale of the proposal is consistent with the zone objectives and provides an appropriate transition between zones. The site and its context 4The site is located on the north-west side of Stoney Creek Road and is at the south-eastern end of a small neighbourhood shopping centre which begins at the intersection with Penshurst Street. 5The site currently contains a two storey building comprising the ground floor commercial use, and associated workshop, and first floor shop top housing. The site falls from the street to the rear by approximately 2.73 m. The rear of the site is used for storage and parking. Pedestrian access to the site is from Stoney Creek Road and a 3.05 m wide right of carriage way to the rear of the site provides vehicle access off Penshurst Street. Goods are delivered by suppliers to the business at the entrance on Stoney Creek Road. The rear lane is used for loading equipment such as trimmers and mowers into a van for deliveries. 6Similar development is located towards Penshurst Street. The south-western boundary of the site is the zone boundary with the Zone No 2 (Residential) area, and a single storey dwelling house immediately adjoins the site in that location. A dwelling house fronting Penshurst Street, (No. 157) is located to the north-west of the right of way within the neighbourhood business zone and Industrial development adjoins the north-western boundary of the zone. Commercial development is also located on the southern and eastern corners of Stoney Creek Road and Penshurst Street. The area beyond those small non-residential areas is residential, comprising detached dwelling houses. The proposal 7The proposed additions occupy the entire rear portion of the site and are built to the side and rear boundaries. The proposed setback to the side boundary of the addition is 200 mm; the existing building is set back 1.5 m. The ground floor section is proposed to be constructed in masonry and the first floor and roof finished with metal cladding. Overall dimensions of the works are 10.06 m x 5.932 m. The carport has dimensions of 5.93 m x 3.124 m and is accessed directly from the right of way. Access to the loading bay and internal car parking spaces would be through the carport. 8The application also proposes to upgrade the building so as to comply with the Building Code of Australia particularly in relation to fire and accessibility. The planning controls 9The site is zoned 3(a) Neighbourhood Business under Hurstville Local Environmental Plan 1994 (the LEP). The objectives of this zone are: (a) to provide for small scale retail and business activities to serve the needs of the surrounding local community, and (b) to provide for development of a scale and type compatible with the amenity of the surrounding residential area, and (c) to facilitate retail and business activities at ground floor level to provide active street frontage. 10Clause 8(3) of the LEP requires Except as otherwise provided by this plan, the council may grant consent to the carrying out of development on land to which this plan applies only if the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out and has considered the extent to which the proposed development is consistent with those objectives. 11Clause 13 of the LEP contains controls for floor space ratio (FSR) and in zone 3(a), subclause (2) provides: (2) For buildings within Zone No 3 (a): (a) the maximum floor space ratio overall is 1.5:1, and (b) the maximum floor space ratio for the exclusively non-residential component is 1:1, and (c) the maximum floor space ratio for the exclusively residential component is 0.5:1. 12Clause 15A(1) controls building height and provides a maximum 2 storey limitation. The development satisfies the controls contained in clause 13(2 and 15A(1)). The evidence 13The hearing commenced on site and included an inspection of the adjoining residential property at 106 Stoney Creek Road. One of the owners gave evidence objecting to the application on the basis of the overshadowing impacts on the living room and kitchen of her dwelling, and having the wall of the proposed addition right at the boundary. The evidence also included concerns as to the loss of views of the sky from those windows; however, in the absence of access into the dwelling it was not possible to confirm that. The owner of 157 Penshurst Street also gave evidence opposing the development on the basis of concerns that the development would exacerbate existing stormwater drainage problems at the rear of the site, and the potential for overlooking. 14The applicant gave evidence on site. Suppliers require him to take stock in bulk in order to get a discounted price. His turnover is approximately 800 trimmers per annum, and 350-400 mowers. These come in boxes and need to be assembled. He presently stores the boxes in part of the showroom facing Stoney Creek Road. Behind the showroom is a workshop area where three people work. They do 80-100 repairs a week. Repaired mowers are taken downstairs for storage until collection. He plans to improve storage with proper shelving. He proposes that delivery trucks would park in Penshurst Street rather than Stoney Creek Road and that goods would be transported by trolleys to the rear of the site along the right of way access. 15Expert town planning evidence was provided on behalf of the applicant by Mr Steven Layman and Mr Neil Kennan on behalf of the Council. Mr Layman and Mr Kennan provided a joint report (exhibit 6) and gave oral evidence. While on site Mr Layman and Mr Kennan took measurements of the three windows on the north-eastern side of 106 Stoney Creek Road, adjoining the site. The first window closest to Stoney Creek Road is a bedroom, and it was agreed that this bedroom presently receives no direct sunlight. The second window is a lounge, and the third window is the kitchen. It was agreed that the sill height of the lounge room window is 1.78 m, and that for the kitchen window is 2.02 m above ground level. The window height above the sill is 1.85 m. Consideration 16The Council contends that the application should be refused because the proposed development is likely to have an adverse impact on the amenity of the adjoining residential premises at 106 Stoney Creek Road in terms of overshadowing, and in terms of visual impact, bulk and scale. 17Clause 8(3) of the LEP requires consideration of the extent to which the proposed development is consistent with the zone objectives, which relevantly include (b) "to provide for development of a scale and type compatible with the amenity of the surrounding residential area". In Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Roseth SC noted that the most apposite meaning of "compatible" in an urban design context is "capable of existing together in harmony". At [24] Roseth SC noted that where compatibility between a building and its surroundings is desirable, the two major aspects are physical impact and visual impact; and physical impacts such as noise, overlooking, overshadowing and constraining development potential can be assessed with relative objectivity. 18In his contribution to the joint report Mr Kennan raised queries, based on the plans, as to the clearance of the roller shutter door to the site, access for a delivery vehicle if the lower ground floor is occupied by two cars in the proposed car parking spaces, location of the proposed stairs, and access if a delivery vehicle is parked. Mr Layman clarified that there are two roller shutters, one at the rear entrance to the site and the other at the threshold of the loading dock, and that a height of 2 m is adequate in accordance with the relevant Australian Standard. During the course of his oral evidence Mr Layman provided details of levels for the car port on the plans (exhibit B, DA02). The applicant agreed that the position of the stair would need to change. The applicant agreed to conditions requiring that the sill height of the rear storeroom window be 1600 mm in order to maintain privacy for the adjoining rear neighbour; positioning of the outlet of the screw cap and 5 mm weep hole of the proposed flush device for cleaning of the charged stormwater drainage system; and requiring a minimum setback of 6 m from the rear boundary for the access stairwell and associated access door and walls in the lower ground floor loading and parking area in order to allow sufficient turning area. Overshadowing 19The applicant submits that the plans for the proposed development have been altered in response to submissions to reduce the impact of the development and have had the support of Council officers. The adjoining residential premises are on a large block, and the house is close to the boundary; preserving the status quo for those premises would unreasonably limit the development of the site. The applicant submits that the issue is what is a reasonable impact on the relevant windows. 20The Council submits that the proposed development is too high and too close to the boundary, and that adverse impacts could be avoided by a more skilful design. 21Mr Layman and Mr Kennan disagreed as to whether the shadow diagrams provided (exhibit B, DA08, DA09) are adequate to assess overshadowing impacts. Mr Kennan was not confident that the heights of the buildings on 106 and 108 Stoney Creek Road are accurately depicted; Mr Layman was satisfied that the diagrams are a reasonable depiction of the impacts of the proposal. They agreed, based on the plans and the view, that at present in mid winter the kitchen window of 106 receives sunlight at 9.00 am until the building self shades at around 2.30-3.00 pm. The lounge room window is in shade at 9.00 am, and in full sun by 10.00 am, and the building self-shadows at around 2.30 pm. They agreed that the proposed development would mean that the kitchen window would receive a shallow band of sun at the top of the window at 9.00 am, increasing to full sun at 12.00 pm until 2.30 pm. The lounge room window would be half in sunlight (on the right hand side) at 11.00 am, and then in full sun until the building self shadows at 2.30 pm. 22Mr Layman and Mr Kennan agreed that the ridgeline of the proposed addition creates the shadow at 9.00 am, and by 10.00 am the shadow arises from the gutter line. Mr Kennan's evidence was that reduction of the sloping roof form from 22 degrees would reduce the shadows cast. Mr Layman agreed that the proposal is for a 22 degree roof pitch for that part of the main roof adjoining the cottage at 106 Stoney Creek Road, and his evidence was that by lowering the pitch of the ridge to 17.5 degrees that would make a difference of half an hour in shadowing. Mr Kennan and Mr Layman agreed that if the floor level was dropped by 300 mm and the proposed addition adopted the building line of the existing building there would be sunlight to the kitchen window at 10.00 am. The applicant conceded that if the proposed addition were lowered in height and the setback was increased the shadow would be lessened. 23Mr Kennan and Mr Layman disagreed as to whether such amendments to the proposed development would be reasonable. Mr Layman's evidence was that the modifications would reduce the floor space by approximately 11.2 sq m, and there would be a significant reduction in the storage area and the accessible toilet would have to be moved. Mr Kennan's evidence was that the accessible toilet would not need to be moved, and that the area could be re-designed to provide a more formal and modern storage area for the existing retail area while mitigating the impact of the proposed development on 106 Stoney Creek Road. The accessible toilet could be located in the void between the existing workshop and the adjoining residential development without undue impact on the amenity of the adjoining development. 24Mr Layman's evidence was that 106 Stoney Creek Road receives ample solar access at midwinter and there is no impact from the proposal on private open space or windows or doors of rooms connected to the private open space between 9.00 am and 3.00 pm in mid winter. The north facing rear sliding doors and windows as well as the west facing windows of the adjoining cottage are unaffected by the proposal as is the rear deck and private open space. There are no numerical controls for solar access with regard to commercial development, however the proposed development would meet the controls applicable to residential development in Hurstville Development Control Plan No 1 (DCP No 1). 25I accept the agreed evidence of the planners as to the overshadowing impact of the proposed development on the kitchen and lounge room windows. It was common ground that there are no applicable numerical controls as to appropriate periods of sunlight in the planning controls, and that at best the requirement in section 4.1.3.10 of DCP No 1 (which applies to residential land) that the principal private open space of both the subject lot and adjoining lot must receive a minimum of three hours direct solar access between 9.00 am and 3.00 pm in mid winter is a guide and not a requirement. 26Guidance in considering impacts on adjoining properties is provided in Pafburn v North Sydney Council [2005] NSWLEC 444, where Roseth SC considered previous judgments and identified five themes: 20 Five common themes run through the above principles. The first theme is that change in impact may be as important as the magnitude of impact. Where a north-facing living room receives uninterrupted sunlight all day in mid-winter, the occupant is likely to perceive its reduction to three hours as a major loss of amenity, despite the fact that the three hours of retained sunlight complies with the rule of thumb in most development control plans and the RFDC. 21 The second theme is that in assessing an impact, one should balance the magnitude of the impact with the necessity and reasonableness of the proposal that creates it. An impact that arises from a reasonable or necessary proposal should be assessed differently from an impact of the same magnitude that arises from an unreasonable or unnecessary proposal. For example, adding a balcony to the living room of a dwelling that has no other balconies is a more reasonable proposal than adding a balcony to a dwelling that already has six balconies. 22 The third theme is that in assessing an impact one should take into consideration the vulnerability of the property receiving the impact. A north-facing window 900mm from the side boundary is much harder to protect against loss of sunlight or views than a similar window 10m from the front or rear boundary. 23 The fourth theme is that the skill with which a proposal has been designed is relevant to the assessments of its impacts. Even a small impact should be avoided if a more skilful design can reduce or eliminate it. 24 The fifth theme is that an impact that arises from a proposal that fails to comply with planning controls is much harder to justify than one that arises from a complying proposal. People affected by a proposal have a legitimate expectation that the development on adjoining properties will comply with the planning regime. 27I accept the agreed evidence as to the contribution of the ridge height, and the reduced setback to the adjoining boundary, to the overshadowing of the dwelling on 106 Stoney Creek Road. I note that the two windows affected, being the lounge and the kitchen, are rooms in which the occupants of that dwelling could reasonably expect to spend time during the day. Both windows are vulnerable, in the sense identified by Roseth SC, being north-east facing and on the side boundary. The wall on which they are located is set back 2.3 m from the common boundary. Based on the planning evidence, the kitchen window would lose three hours of sunlight. The lounge room window would not be in full sunlight until after 11.00 am. I agree with the Council that these are significant impacts. 28Both parties referred to The Benevolent Society v Waverley Council [2010] NSWLEC 1082 in which Moore SC articulated a revised planning principle on solar access. The applicant submitted that because 106 Stoney Creek Road is an older house with modest window sizes, it is preferable to apply the previously adopted approach outlined in Parsonage v Ku-ring-gai Council [2004] NSWLEC 347, and to consider that if a window is to be assessed as being in sunlight, half of its area should be in sunlight. The approach of Moore SC is to have regard not only to the proportion of the glazed area in sunlight but also to the size of the glazed area itself. For the reasons stated by Moore SC at [139], I agree with the preferable approach is that adopted in Benevolent Society. That approach also considers the amount of sunlight lost as well as that retained, and reinforces the concern expressed in Pafburn that overshadowing arising out of poor design is not acceptable. 29It was conceded by the applicant that reducing the ridge height and increasing the side setback would reduce the loss of sunlight. In considering whether the impacts arise from a necessary or reasonable proposal, I prefer the evidence of Mr Kennan to that of Mr Layman. It was apparent from the oral evidence that the configuration of the lower ground floor, including the positioning of the access stairs, requires reconsideration in order to achieve a workable layout. I agree with the Council that there are unresolved questions as to the functionality of that space for the loading area, transport of boxes in to the premises, together with parking for two vehicles. I accept the evidence of Mr Kennan that there is scope to amend the roof form such that the 22 degree sloping roof form is replaced by a lesser slope so that the shadow cast is from the eaves in the early morning in mid winter rather than the ridge line. Mr Kennan's evidence that goods will need to be transported between the lower ground floor to the ground level, with or without a reduction in height, was consistent with the evidence from the applicant as to the pattern of delivery of supplies and loading of items for delivery from the premises. I accept Mr Kennan's evidence that the accessible toilet could be located in the void between the existing workshop and the adjoining residential development, although that would reduce the space available for outdoor clothes drying which the applicant proposes to provide for the tenants of the residential accommodation. I accept Mr Kennan's evidence that the consequence of these modifications would be that more storage space would be available for the applicant with mitigation of the overshadowing of the windows of the adjoining development. I agree that a more skilful design would achieve what the applicant is seeking in terms of improved storage while minimising impacts on the adjoining property. Visual impact, bulk and scale 30The proposed addition extends 9.8 m along the side boundary, with a set back of 200 mm. There was some discussion on site that some landscaping might reduce the visual impact of the proposed addition. Mr Layman's evidence was that the proposed addition is consistent in height and scale with the existing adjoining cottage, and the bulk is reasonable having regard to the business zone. Mr Kennan's evidence was that an amended development as discussed above would eliminate much of the visual impact, including interruption of an existing view to the sky. As noted above, it was not possible to view the site from inside the dwelling at 106 Stoney Creek Road and I make no finding in that regard. I am satisfied, however, that by reason of its the height and length along the boundary, and its location 200 mm from the boundary, the proposed addition would present a solid wall to the adjoining residential property, which would be mitigated if the building were reduced in height and set back further from the boundary. Transition from the 3(a) Neighbourhood Business zone to 2 residential zone 31The Council contended that by reason of bulk and scale, the proposed development is inadequate to mark a reasonable transition from the Neighbourhood Business zone to the Residential zone. The planners agreed that the planning principle in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 is relevant. At [25] Roseth SC noted: 25. As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like. 32Mr Layman's evidence was that the proposal provides a suitable zone interface because it is considerably lower than the existing front section of the building; the height of the proposal is minimised while allowing for vehicular headroom at the lowest proposed level and level access between the front shop and the rear storage area; and it is unreasonable to require a level change between front and rear having regard to the provision of disabled access and the safety risks for moving sometimes bulky and heavy mowing equipment between the front and back of the premises. 33I accept that as outlined in Seaside Property, development at a zone interface can present challenges and require compromises. As the Council submitted, a Neighbourhood Business zone will generally be located in or adjacent to residential uses. I agree with the Council that the development as proposed, being 9.8m long, of colourbond construction, close to the boundary, does not appropriately recognise and take account of the adjoining and nearby residential development. Conclusion 34I am satisfied that the overshadowing impacts of the proposed development are an unacceptable adverse impact on the adjoining residential property, and that those impacts, and the impacts arising from the bulk and scale of the proposed addition, could be mitigated by a reconsidered design that would also achieve the additional storage needed by the applicant, as well as provision of an accessible toilet and other improvements to the building. The applicant's position was that he would not accept conditions modifying the proposal, in the form of a reduction in height and increased side setback. I am not satisfied that the development in the form proposed is of a scale and type compatible with the amenity of the surrounding residential area. The proposed development is not consistent with the objectives of the 3(a) Neighbourhood Business zone, in particular objective (b), and applying cl 8(3) of the LEP, consent cannot be granted. 35The orders of the Court are: 1. The appeal is dismissed. 2. Development application No. 11/DA-156 for additions to the rear of premises at 108 Stoney Creek Road Beverley Hills is refused. 3. The exhibits are returned except for exhibits 1, A and B. Linda Pearson 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. Decision last updated: 17 October 2012