Land and Environment Court New South Wales Medium Neutral Citation: Karbone v Ashfield Council [2014] NSWLEC 1044 Hearing dates: 6 March 2014 Decision date: 06 March 2014 Jurisdiction: Class 1 Before: Fakes C Decision: 1. Appeal upheld 2. DA 52/2013 for alterations and additions to an existing boarding house on Lot 1 in DP 169164, known as 30 Chandos Street, Ashfield, as amended subject to the conditions of consent in Annexure A. Catchwords: CONSENT ORDERS: Additions and alterations to an existing boarding house; amenity; solar access Legislation Cited: Environmental Planning & Assessment Act 1979 Ashfield Local Environmental Plan 1985 Ashfield Local Environmental Plan2013 State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Zhang v Canterbury City Council [2001] NSWCA 167 Category: Principal judgment Parties: Peter Karbone (Applicant) Ashfield Council (Respondent) Representation: Applicant: Mr D Carbone (Solicitor) Respondent: Mr P Jackson (Solicitor) Applicant: Sydney Law Practice Respondent: Pikes & Verekers Lawyers File Number(s): 10771 of 2013 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The application before the Court is for alterations and additions to an existing two-storey boarding house at 30 Chandos Street, Ashfield. 2The existing boarding house comprises ten units. The history of the proposal and the actions of the parties are detailed in the council's Statement of Facts and Contentions in Reply. In summary, the proposal has been revised and amended from a proposed part two/part three storey development with 20 rooms, including one for an on-site manager, to the current proposal for a two storey extension and 19 rooms as well as car and motor bike parking, landscaping and ancillary structures. 3The parties have reached an agreement they consider meets the concerns raised by council and satisfactorily addresses the issues raised by objectors. The parties propose consent orders and have agreed on conditions of development consent. 4In accordance with the Court's practice direction, all the objectors were notified of the content of the proposed orders and the consent orders hearing. Two objectors made further submissions, one in person, one in writing. Planning controls 5The site was zoned Residential 2(c) in Ashfield Local Environmental Plan 1985, the LEP in force when the development application was made. Ashfield Local Environmental Plan 2013 (ALEP) is now in force. The site is now zoned R3, Medium Density Residential. Boarding houses are permitted with consent in these zones. 6Relevant development standards in ALEP are cl. 4.3 Height of Buildings - 12.5m, and cl 4.4 Floor Space Ratio - 0.7:1. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP AFR), which also applies to this proposal, permits an additional FSR of 0.5:1. The permitted FSR is 1.25:1, the proposed development has an FSR of 0.83:1. The height of the proposed development is 7.5m. Thus the proposal complies with the relevant development standards. 7The adjoining property to the north, 32 Chandos Street, is listed as a heritage item in ALEP. Council's heritage officer/ consultant has assessed the proposal and raises no issues that would warrant refusal of the development. The recommended changes to the front fence have been adopted. 8Ashfield Boarding House Development Control Plan 2007 and Multi Unit Development in Flat Zones DCP 2007 (the DCPs) apply. These DCPs permit boarding houses in zone 2(c). Clause 5.9(c) in MUFZ DCP permits buildings up to 3 storeys within this zone. Clause 5.16(c) requires that existing solar access should be maintained at 40% of the glazed areas of any neighbouring north-facing living room or dining room windows for at least three hours between 9.00am and 3.00pm at the winter solstice. Objections from nearby residents 9A number of nearby residents made submissions in regards to the proposed development. An owner of one of the adjoining units in 32 Chandos Street raised objections to a number of elements including privacy, noise and general amenity. 10The adjoining property to the south, 28 Chandos Street is a 1920s single storey dwelling. The owners are concerned that the proposal will unreasonably reduce solar access to two north-facing windows of the dining room and a secondary living room. Other concerns about noise from gates and motorcycle parking have been addressed to their satisfaction. 11The applicant's architect prepared shadow diagrams, which satisfy the council's concerns. Those diagrams indicate 50% of the area of the windows will receive solar access between 9.00am and 3.00pm on the winter solstice. 12Mr Reed, an architect and the son of the owners of 28 Chandos Street, prepared alternate shadow diagrams that indicate only 35% of the windows will receive sunlight during the nominated hours. He stated in Court that at present the windows are unobstructed and receive full sun from about 11.00 am. His suggested compromise would be to set the building back further from the common boundary to enable 50% of the windows to receive sunlight. 13The difference in the degree of shading relates to assumptions made about the thickness of the roof and the presence of guttering. 14Mr Jackson for the council submits that on balance, even if 35% of the windows have solar access, a 5% shortfall from the control is not unreasonable given the otherwise overall compliance with all relevant controls. 15Evidence was given that the windows are relatively small, they are less than 1m from the dividing fence, and there is an addition at the rear of 28 Chandos Street that includes a north facing living room that will be unaffected by the proposal. Findings 16Having considered the proposed conditions of consent and the amended plans, I am satisfied that the concerns raised by the objector from 32 Chandos Street have been appropriately addressed. The relevant conditions of consent include limited hours of access to an adjoining courtyard, opaque windows to address privacy concerns, and additional landscaping. 17In regards to the solar access to 28 Chandos Street, I agree with Mr Jackson that a balanced and holistic approach must be taken when assessing impacts. I note that the zone allows up to three storeys and the proposal is well within the limits of the controls in ALEP for height and FSR. The proposal complies with SEPP ARH. 18As considered in Zhang v Canterbury City Council [2001] NSWCA 167, while a DCP must be a focal point of the decision making process, I am not required to adopt it uncritically. Given the inherent limitations of window size and side setback of the north-facing windows and the presence of the unaffected additional north-facing living room, I see no reason to either refuse the development or to require further amendments to the plans in the particular circumstances of this matter. 19However, Mr Reed identified a potential further impact on solar access that may arise if air conditioning units are placed on the roof of the boarding house. A condition of consent will be drafted to ensure that should air conditioners be installed, they must not interfere with solar access to adjoining properties. The proposed conditions of consent and Plan of Management 20The conditions and Plan of Management (POM) were read and some anomalies, inconsistencies and omissions were discovered. The following changes were made: * A deferred commencement condition requiring the preparation of a detailed landscape plan to council's satisfaction; * Deletion of any reference to earlier landscape plans; * Clarification of the time limits for use of the courtyards and adjoining ground floor lounge room; the courtyards are not to be used between 10.00pm and 6.00am at any time; the windows and doors of the ground floor lounge room are to be closed between 9.30pm and 6.00 am. These times are to be included in the POM and the brochure to be given to new tenants. * Insertion of a sentence in condition H 14 to reflect the issue raised by Mr Reed in regards to air conditioners and solar access. * Section 3.0 of the POM is to be revised to delete any reference to an on-site manager but is to include contact details for management staff. The POM and contact details are to be provided to owners and occupiers of adjoining properties. * Section 4.0 is to be amended to be consistent with the conditions of consent in regards to hours of usage of courtyards etc; * A new section 18.0 - Signage is to be included to provide emergency contact details on a sign visible from the street. Conclusion and orders 21Having considered the proposal, the concerns of the resident objectors, the relevant planning controls and other matters in s 79C of the Environmental Planning & Assessment Act 1979 I am satisfied the Court can make the orders proposed by the parties. The Court notes the agreement of no orders as to costs. 22By consent, the Orders of the Court are: (1)The appeal (10771 of 2013) made pursuant to s 97(1) of the Environmental Planning & Assessment Act 1979 is upheld. (2)Deferred commencement consent is granted to Development Application No. 52/2013 of 2 April 2013 for alterations and additions to an existing boarding house on Lot 1 in DP 169164, known as 30 Chandos Street, Ashfield, as amended subject to the conditions set out in Annexure A. __________________________ Judy Fakes Commissioner of the Court ANNEXURE A 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: 10 March 2014