Land and Environment Court New South Wales Medium Neutral Citation: James Evans v Inner West Council [2018] NSWLEC 1043 Hearing dates: 11 January 2018 Date of orders: 09 March 2018 Decision date: 09 February 2018 Jurisdiction: Class 1 Before: Chilcott C Decision: The orders of the Court are: (1) The appeal is upheld; (2) Development application DAREV/2017/23 for alterations and additions to a property at 168 Johnston St, Annandale is determined by the grant of consent, subject to the conditions of consent provided at Annexure 'A'; (3) The exhibits are returned with the exception of Exhibits A and B. Catchwords: DEVELOPMENT APPLICATION: appeal against conditions following a s82A review of refusal; rear garage/studio; overland flow path; stormwater flows; solar access to neighbour's private open space. Legislation Cited: Leichhardt Local Environment Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: The Benevolent Society v Waverley Council [2010] NSWLEC 1082 Texts Cited: Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: James Evans (Applicant) Inner West Council (Respondent) Representation: D. Briggs (Applicant) M. Bonanno (Respondent) Solicitors: DG Briggs and Associates Inner West Council File Number(s): 2017/294634 Publication restriction: Nil Judgment Background 1. COMMISSIONER: James Evans (the Applicant) has appealed the determination of Inner West Council (the Respondent) to grant development consent, subject to conditions, for alterations and additions to a property at 168 Johnston St, Annandale (the Subject Site), and following the lodgement of request for a review Council's initial refusal of development application DA2016-665, pursuant to section 82A of the Environmental Planning and Assessment Act 1979 (EP&A Act). 2. Following its review (referenced as DAREV/2017/23) Council granted consent to an amended scheme, supported by hydraulic engineering and geotechnical engineering reports, that had been submitted by the Applicant. 3. The amended scheme was substantially the same as that proposed by the Applicant in his original development application, and was for a three (3) storey addition to the existing dwelling, together with construction of a new garage with a studio above which would be accessed via Piper Lane, at the rear of the Subject Site. 4. Amendments made to the original proposed development included the deletion of a rooftop deck, a reduction in the height of the rear addition to the dwelling, the relocation of the proposed swimming pool, a change in form of the garage/studio to incorporate a parapet and reduce its overall height, and changes to some materials and finishes. 5. The Applicant seeks the deletion of eight discrete conditions of consent imposed by the Respondent following its review and determination of original development application. These concern the following conditions of consent: 1. Condition 4(a), which concerns the management of stormwater flows along the side of the Subject Site, and which requires that: The kitchen and family room at lower ground floor level must be set back a minimum 500mm from the northern boundary for the full height of the lower ground floor to provide an overland flowpath between Johnston Street and the rear of the property. The existing surface levels must be maintained for the length of the dwelling such that a retaining wall is not required along the boundary. 1. Condition 4(b), which concerns the management of stormwater flows at the rear of the property along Piper Lane and which requires that: The finished floor level of the garage must be raised to RL21.65m AHD. 1. Condition 4(c), which concerns the design of the proposed garage/ studio and which requires the: Garage/studio to be reduced in size to have a maximum external length of 7.83m on the northern and southern elevations. 1. Condition 4(d) which concerns the design of the proposed garage/ studio and which requires that: The floor to ceiling height of the garage is to be 2.2m with the roller shutter housing contained in a recess within the first floor 1. Condition 4(e), which concerns the design of the proposed garage/ studio and which requires that: The finished floor level of the first floor studio level is to be RL24.15m AHD. 1. Condition 4(f), which concerns the design of the proposed garage/ studio and which requires that: The clerestory roof shall be reduced in height to have a maximum RL of 28.085m AHD with the roof pitching from the southern wall at a maximum pitch of 20 degrees. The exterior southern wall of the studio shall have a topmost point of RL26.52m AHD. The topmost point of the northern elevation exterior wall shall be RL 27.02m AHD with the adjacent lower portion of the roof lowered accordingly. The internal ceiling levels are to be lowered as required by the lower roof heights. 1. Condition 4(g), which concerns the design of the proposed garage/ studio and which requires that: The clerestory window roof is to be reduced in extent so that it is setback a minimum of 1.45m from the new eastern external wall of the garage/studio building as required by (c) above with the remaining section of roof to the eastern external wall being a skillion roof sloping in the same direction as the clerestory window roof with a pitch of 2 degrees. 1. Condition 4(i), which concerns the design of the proposed garage/ studio and which requires that the: First floor window to the Piper Lane façade is to be 1 or 2 no. window/s of half width to that shown on the approved plans, double hung painted timber frame, colour to be white/off-white or a stone/beige colour. 1. The appeal comes to the Court pursuant to s97(2) of the EPA Act and was subject to mandatory conciliation under s34AA of the Land and Environment Court Act 1979 (LEC Act). 2. As part of the conciliation conference, an inspection of the Subject Site was undertaken, during which a submission was received from Mr Dougal Biggart, the owner of the adjoining property at 166 Johnston St. 3. Mr Biggart's submission principally concerned two points. These were: 1. A preference for retention of the current 2.1m high fence between the properties in order to maintain visual privacy. Mr Biggart said that he accepted that retention of a fence that was higher than a standard 1.8m high fence may have some minor overshadowing implications for his property. Nevertheless, he stated that these impacts were secondary to his preference for retention of the higher fence to secure his privacy. 2. Mr Biggart indicated an intention, consistent with other recent developments within the area, and with the proposed development in this appeal, to seek consent for construction of a rear garage with first floor studio at the back of his property. 1. The conciliation conference did not result in all matters in contention being resolved. Consequently, as required under s34AA of the LEC Act, the conciliation was terminated and a hearing held forthwith to address the contentions between the Parties. 2. The Parties confirmed the plans that were the subject of the section 82A review were the same as those that formed the basis for this appeal. Statutory context Environmental Planning and Assessment Act 1979 1. The Environmental Planning and Assessment Act 1979 (EP&A Act) Section 79C(1) requires that in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.". 1. Section 79C(3A) Development Control Plans further provides that: If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. Leichhardt Local Environment Plan 2013 1. Development on the Subject Site is subject to the Leichhardt Local Environment Plan 2013 (LLEP 2013), the general objectives of which are: (a) to ensure that development applies the principles of ecologically sustainable development, (b) to minimise land use conflict and the negative impact of urban development on the natural, social, economic, physical and historical environment, (c) to identify, protect, conserve and enhance the environmental and cultural heritage of Leichhardt, (d) to promote a high standard of urban design in the public and private domains, (e) to protect and enhance the amenity, vitality and viability of Leichhardt for existing and future residents, and people who work in and visit Leichhardt, (f) to maintain and enhance Leichhardt's urban environment, (g) to ensure that land use zones are appropriately located to maximise access to sustainable transport, community services, employment and economic opportunities, public open space, recreation facilities and the waterfront, (h) to promote accessible and diverse housing types, including the provision and retention of: (i) housing for seniors or people with a disability, and (ii) affordable housing, (i) to provide for development that promotes road safety for all users, walkable neighbourhoods and accessibility, reduces car dependency and increases the use of active transport through walking, cycling and the use of public transport, (j) to ensure an adequate supply of land and housing to facilitate: (i) employment and economic opportunities, and (ii) the provision of goods and services that meet the needs of the local and subregional population, (k) to protect and enhance: (i) views and vistas of Sydney Harbour, Parramatta River, Callan Park and Leichhardt and Balmain civic precincts from roads and public vantage points, and (ii) views and view sharing from and between private dwellings, (l) to ensure that development is compatible with the character, style, orientation and pattern of surrounding buildings, streetscape, works and landscaping and the desired future character of the area, (m) to ensure that development provides high quality landscaped areas in residential developments, (n) to protect, conserve and enhance the character and identity of the suburbs, places and landscapes of Leichhardt, including the natural, scientific and cultural attributes of the Sydney Harbour foreshore and its creeks and waterways, and of surface rock, remnant bushland, ridgelines and skylines, (o) to prevent undesirable incremental change, including demolition, that reduces the heritage significance of places, conservation areas and heritage items, (p) to provide for effective community participation and consultation for planning and development, (q) to promote opportunities for equitable and inclusive social, cultural and community activities, (r) to promote the health and well-being of residents, business operators, workers and visitors, (s) to ensure that development applies the principles of crime prevention through design to promote safer places and spaces, (t) to ensure that development responds to, conserves, protects and enhances the natural environment, including terrestrial, aquatic and riparian habitats, bushland, biodiversity, wildlife habitat corridors and ecologically sensitive land, (u) to promote energy conservation, water cycle management (incorporating water conservation, water reuse, catchment management, stormwater pollution control and flood risk management) and water sensitive urban design, (v) to ensure that existing landforms and natural drainage systems are protected, (w) to ensure that the risk to the community in areas subject to environmental hazards is minimised, (x) to ensure that the impacts of climate change are mitigated and adapted to. 1. Under LLEP 2013 the Subject Site is zoned R1 General Residential, the objectives of which are provided in cl2.1 of LLEP 2013 as follows: * to provide for the housing needs of the community. * to provide for a variety of housing types and densities. * to enable other land uses that provides facilities or services to meet the day to day needs of residents. * to improve opportunities to work from home. * to provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas. * to provide landscaped areas for the use and enjoyment of existing and future residents. * to ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area. * to protect and enhance the amenity of existing and future residents and the neighbourhood. 1. The Subject Site is located within a general heritage conservation area. In this regard, the brush box trees in the road reserve along that portion of Johnston Street in the vicinity of the subject site are a heritage item of local significance. The trees are identified by item number 166 in schedule 5 of LLEP 2013. 2. Development on the Subject Site is subject to development standards within LLEP 2013 concerning general residential zoning (cl2.3), floor space ratio (cl.4.4), and heritage conservation (cl5.5). Leichhardt Development Control Plan 2013 1. The subject site is located within the Johnston Street Distinctive Neighbourhood, and Johnston Street Laneways Sub-area under Leichhardt Development Control Plan 2013 (LDCP 2013), and these documents include objectives and controls for the desired future character of that neighbourhood and area. 2. Of particular relevance in this appeal are the provisions concerning solar access, provided within section 3.9 of LDCP 2013, the objectives of which are that development shall: a. provide adequate sunlight to main living room and private open space; b. provide daylight to all habitable rooms; c. provide a high level of amenity; d. protect residential amenity for adjoining development; e. increase energy efficiency; and f. minimise the degree of overshadowing to neighbouring properties. 1. More specifically, the controls concerning the retention of solar access to private open space of neighbouring dwellings are of relevance in this appeal. These state: Retaining solar access to neighbouring dwellings private open space: C16 Where surrounding dwellings have south facing private open space ensure solar access is retained for two hours between 9am and 3pm to 50% of the total area during the winter solstice. C17 Where surrounding dwellings have north facing private open space, ensure solar access is retained for three hours between 9am and 3pm to 50% of the total area during the winter solstice. C18 Where surrounding dwellings have east/west facing private open space, ensure solar access is retained for two and a half hours between 9am and 3pm to 50% of the total area (adjacent to living room) during the winter solstice. C19 Where surrounding dwellings currently receive less than the required amount of solar access to their private open space between 9am and 3pm during the winter solstice, no further reduction of solar access is permitted. 1. LDCP 2013 also provides guidance in relation to assessing the impact of development on the solar access of neighbours, and which proposes that: In assessing the reasonableness of solar access impact to adjoining properties, and in particular, in any situation where controls are sought to be varied, Council will also have regard to the ease or difficulty in achieving the nominated controls having regard to: a. the reasonableness of the development overall, in terms of compliance with other standards and controls concerned with the control of building bulk and having regard to the general form of surrounding development; b. site orientation; c. the relative levels at which the dwellings are constructed; d. the degree of skill employed in the design to minimise impact; and e. whether reasonably available alternative design solutions would produce a superior result. Contentions 1. At the commencement of the hearing the Parties advised that the FSR of the proposed development exceeded the FSR control within LLEP 2013. However, the Applicant had submitted a written request under cl 4.6 of LEP 2013 to vary that standard on the basis that maintenance of the control was unnecessary. The Respondent said that, following review of the cl4.6 request, it accepted that the request was well founded. 2. Having reviewed the Applicant's cl4.6 variation request I concur with the Respondent's assessment and conclusion that the cl4.6 request is well founded, and should be upheld in this matter. 3. As identified within paragraph [5] above, the remaining contentions fell into three categories, which require resolution in terms of the following key questions: 1. Should the Applicant's appeal to delete the Respondent's condition 4(a), concerning the management of stormwater flows along the side of the Subject Site, be upheld? 2. Should the Applicant's appeal to delete the Respondent's condition 4(b), concerning the management of stormwater flows along the rear of the Subject Site, be upheld? 3. Should the Applicant's appeal to delete the Respondent's conditions 4(c) to 4(g), and 4(i), for modifications to the design of the garage/studio, be upheld? Should the Applicant's appeal to delete the Respondent's condition, concerning the management of stormwater flows along the side of the Subject Site, be upheld? 1. The Applicant has sought deletion of Condition 4(a) which concerns the management of stormwater flows along the northern side of the Subject Site, and which requires that: The kitchen and family room at lower ground floor level must be set back a minimum 500mm from the northern boundary for the full height of the lower ground floor to provide an overland flow path between Johnston Street and the rear of the property. The existing surface levels must be maintained for the length of the dwelling such that a retaining wall is not required along the boundary. 1. This condition has two limbs, the first of which concerns a requirement to set back the lower ground floor of the proposed development by a minimum 500mm from the northern boundary of the Subject Site. This was the focus of evidence and submissions during the appeal. 2. The second limb, which concerns the maintenance of the existing surface levels of the dwelling such that a retaining wall is not required along the boundary of the Subject Site, was accepted by the Applicant. 3. Mr Bonanno, for the Respondent, said that Council's position in relation to the management of stormwater flows across a residential block subject to such flows, was to require the provision of an overland flow path and not to rely solely on a pit and pipe system, such as is proposed by the Applicant, for management of such flows. He noted that this was a conservative 'belts and braces' approach to the management of these flows, which Council sought to implement wherever possible. Mr Bonanno acknowledged that Council had approved some developments without the provision of an overland flow path, but this had occurred in circumstances where site constraints were such that provision of such a flow path could not be achieved. 4. The proposed deletion of condition 4(a) was the subject of expert testimony on stormwater drainage from engineers Mr James Ogg for the Respondent, and Mr Glenn Haig for the Applicant. 5. The engineering experts had confirmed within their joint report, tendered as evidence during the hearing, that they were agreed as to the flow rate and capacity requirement calculations associated with potential stormwater flows through the Subject Site. 6. Mr Ogg said that Council's proposed condition sought to ensure that the design provided: 1. an overland flow path to provide for calculated flows in the event that the proposed pit and pipe drainage system, as proposed by the Applicant, became blocked; and 2. adequate width to facilitate access for maintenance of the pit and pipe system by a person rather than solely by mechanical means. 1. Mr Ogg noted that in order for maintenance of the pit and pipe drainage system to be undertaken by a person a minimum 300mm wide ground floor setback to the northern boundary was required. As a consequence, Mr Ogg proposed that Council's condition 4(a) could be amended to reflect a reduction in the northern setback from the 500mm width, as required in the condition issued by Council, to a width of 300mm. 2. Mr Haig said that, in his opinion, a width of 160mm for the northern setback, would be adequate as this would complement the setback width provided by the neighbouring property at 170 Johnston St and together these would adequately meet the overland flow path needs of the properties. 3. He also noted that a 160mm ground floor setback of the proposed development would provide adequate width for any maintenance of the proposed pit and pipe system, as this could be undertaken using mechanical means that did not require a 300mm width. Mr Haig had identified in the joint report of the engineering experts that such a system could include the use of telescopic brooms and high pressure hoses from both ends of the pit and pipe system. 4. In response to a question from Mr Briggs, for the Applicant, Mr Ogg agreed that: 1. if maintained, the proposed pit and pipe system would be adequate to covey stormwater flows across the site, and 2. a system such as that proposed would be self-cleaning with in circumstances where it was operating on land with a 1-2% grade, and that this requirement was reflective of conditions on the Subject Site. 1. Based on the evidence before me, and consistent with the opinion of the experts, I am satisfied that the proposed pit and pipe system has a grade that will facilitate self-cleaning, and that, if required, the 160mm ground floor setback width proposed by Mr Haig would be adequate to facilitate maintenance of this system by mechanical means. 2. I therefore conclude that Mr Haig's proposal, on behalf of the Applicant, to amend condition 4(a) should be adopted, along with the agreed second limb of the condition concerning the maintenance of the existing surface levels of the dwelling such that a retaining wall is not required along the boundary of the Subject Site. 3. The Applicant provided a proposed condition of consent to reflect this conclusion, along with a further element to describe the required pit and pipe system, and which I agree should replace condition 4(a) issued by the Respondent in its determination of the proposed development. That condition is: 4(a)(i) The kitchen and family room at lower ground floor level must be set back a minimum 160mm from the northern boundary for the full height of the lower ground floor to provide an overland flow path between Johnston Street and the rear of the property. The existing surface levels must be maintained for the length of the dwelling such that a retaining wall is not required along the boundary. (ii) the proposed Sag pit and 150mm pipe system is to be installed to dispose of surface waters from the area to the east of the kitchen/family room. The Sag pit shall measure 450mm x 450 mm (grate) and the 150mm pipe is to connect the invert of the pit to the rear yard (to the west of the kitchen/family room) into the remaining piped stormwater drainage system in accordance with Drawing H001 Revision 5 Issue E dated 8.01.17 (sic) by adaption of OLF Samp A. Should the Applicant's appeal to delete the Respondent's condition, concerning the management of stormwater flows along the rear of the Subject Site, be upheld? 1. The Applicant has sought deletion of Condition 4(b) which concerns the management of stormwater flows along the rear of the property along Piper Lane and which requires that: The finished floor level of the garage must be raised to RL21.65m AHD. 1. During the inspection of the Subject Site undertaken as part of the conciliation phase of these proceedings, it was observed that rainwater flows from the northern side at the rear of the Subject Site flowed towards the entry to the existing garage close to the existing level of that garage floor. It was also observed that the proximity of these flows to the rear of the existing garage was a consequence of the landscape profile between the rear of the property at 166 Johnston Street and the Subject Site. 2. It was further evident that the gutter arrangements at the rear of the properties backing onto Piper Street were in transition, as a number of properties had constructed new rear garages at Piper Lane, and new guttering had been introduced as a consequence of those works. 3. The engineering experts had addressed this contention within their joint report. 4. Mr Haig had noted that, in his opinion, the proposed finished floor level of the garage of RL 21.53m AHD was adequate to ensure that the discharge of surface waters into the existing stormwater drainage system would remain unaffected. He based this conclusion on the fact that the Applicant's proposed finished floor level was compatible with existing levels shown in the survey of the Subject Site which he said indicated that: 1. the southern boundary had a level of RL21.49m AHD, and 2. the northern boundary at a level of RL 21.21m AHD. 1. Mr Haig concluded that, given that the grade of Piper Lane at the rear of the subject site was 8.92%, it was reasonable to expect that no water ingress to the garage would occur at a finished floor level of RL 21.53m AHD. 2. Mr Ogg disagreed with the conclusions of Mr Haig. 3. Within the joint report of the engineering experts, Mr Ogg had said that the existing gutter levels of the existing garage at the laneway were relatively flat and inconsistent with the longitudinal profile of the gutter between the upper and lower extent of Piper Lane. He noted that existing garage gutter levels were, therefore, inconsistent with Council's desired future levels for Piper Lane. 4. Mr Ogg said that, based on his review of the survey, the future southern and northern gutter invert levels for Piper Lane would be expected to be RL 21.7m AHD and RL 21.25m AHD respectively, both of which were above the levels identified by Mr Haig. 5. Mr Ogg said that, as a consequence, he calculated that the centreline of the property at the rear boundary would have a likely future gutter level of RL 21.48 m AHD. 6. Mr Ogg added that the finished floor level for the garage should provide a minimum 170mm additional height above the gutter level for the majority of the property frontage in order to mitigate the potential for stormwater flows along the rear of the Subject Site to enter the garage. He said that, as a consequence, the finished floor level of the garage should be no lower than RL 21.65m AHD. 7. Having considered the evidence of the experts, I favour the position of Mr Ogg in relation to the required finished floor level of the garage. In my assessment, Mr Ogg's analysis and recommendations for the rear gutter levels are based on a broader consideration of the functioning of the gutter along the length of Piper Lane rather than solely on how it would affect the garage proposed for the Subject Site. His assessment included consideration of Council's need to integrate the gutter level outcomes at the rear of the Subject Site along with those to be achieved at the rear of adjoining properties to the north and south of the Subject Site. 8. In my view Mr Ogg's analysis reflects the onus carried by the Respondent Council for the integration of stormwater management outcomes along Piper Lane, to the benefit of all properties along the length of that laneway. 9. I consider that the recommendation of Mr Ogg on this matter provides the best outcome for mitigating any potential stormwater impacts on both the garage that forms part of the Applicant's proposed development, as well as on other properties backing onto the laneway. 10. I therefore conclude that the application to delete condition 4(b) should not be upheld, and agree with the Respondent that the finished floor level of the garage must be raised to RL21.65m AHD. Should the Applicant's appeal to delete the Respondent's conditions for modifications to the design of the garage/studio be upheld? 1. The Applicant has sought deletion of Conditions 4(c), 4(d), 4(e), 4(f), and 4(g), all of which concern the proposed bulk and scale of the proposed garage/studio, and which require that: 4(c) Garage/studio to be reduced in size to have a maximum external length of 7.83m on the northern and southern elevations. 4(d) The floor to ceiling height of the garage is to be 2.2m with the roller shutter housing contained in a recess within the first floor. 4(e) The finished floor level of the first floor studio level is to be RL24.15m AHD 4(f) The clerestory roof shall be reduced in height to have a maximum RL of 28.085m AHD with the roof pitching from the southern wall at a maximum pitch of 20 degrees. The exterior southern wall of the studio shall have a topmost point of RL26.52m AHD. The topmost point of the northern elevation exterior wall shall be RL 27.02m AHD with the adjacent lower portion of the roof lowered accordingly. The internal ceiling levels are to be lowered as required by the lower roof heights. 4(g) The clerestory window roof is to be reduced in extent so that it is setback a minimum of 1.45m from the new eastern external wall of the garage/studio building as required by (c) above with the remaining section of roof to the eastern external wall being a skillion roof sloping in the same direction as the clerestory window roof with a pitch of 2 degrees. 1. The Applicant also sought deletion of Conditions 4(i) which concerns the external presentation of the proposed garage/studio to Piper Lane, and which requires that the: 4(i) First floor window to the Piper Lane façade is to be 1 or 2 no. window/s of half width to that shown on the approved plans, double hung painted timber frame, colour to be white/off-white or a stone/beige colour. 1. These conditions were the subject of expert evidence from the planning experts, Ms Anna Walker for the Respondent, and Mr Kim Burrell for the Applicant, who had prepared a joint report, tendered as evidence during the hearing. 2. I will first address the bulk and scale issues addressed by conditions 4(c) to 4(g), before finally considering condition 4(i). Conditions 4(c) to 4(g) 1. In her testimony, Ms Walker confirmed that: 1. she held no planning concerns in relation to the proposed additions to the principal dwelling on the Subject Site; and 2. she was concerned by the potential overshadowing impacts that the proposed garage/studio would have on the private open space within the rear yard of the adjacent property at 166 Johnston St. 1. In the joint report of the planning experts, Ms Walker had noted that, because the rear yard private open space at 166 Johnston Street is oriented approximately in an east/west direction, the relevant controls applicable to potential solar access impacts were controls C18 and C19 within section 3.9 Solar Access of LDCP 2013 (see above at [19]. 2. Miss Walker's evidence within the joint report was that the area of private open space that should be assessed to receive the required solar access under these controls was 57.8 m² (or 61.1 m² if an area under the balcony at the rear of the property were included). 3. Ms Walker had stated within the joint report that the shadow diagrams provided by the Applicant had indicated that the existing rear yard of 166 Johnston Street did not receive solar access as required under control C18. 4. Ms Walker and Mr Burrell agreed that: 1. any first floor studio above the proposed garage would inevitably result in additional overshadowing of the rear yard at 166 Johnston St; and 2. as a consequence of this, and the fact that the existing rear yard of 166 Johnston Street did not receive the solar access required under control C18, the solar access outcomes sought under the controls within LDCP 2013 could not be achieved by the proposed development. 1. Consequently ,Miss Walker acknowledged that there was no material benefit in seeking to maintain the standards provided within LDCP 2013 in relation to solar access, although she reiterated her comment from the joint report that the extent of overshadowing by the proposed development could be reduced by adjusting the size, height and bulk of the proposed garage/studio while still providing for its functionality. 2. During the hearing, the Applicant tendered a revised set of amended shadow diagrams to facilitate discussions between the experts on the subject of potential solar access impacts from the proposed development on the adjoining property at 166 Johnston St. 3. Ms Walker said that she had been the principal drafter of conditions 4(c) to 4(g) and that her purpose in crafting this suite of conditions was so that, taken together, they would reduce the extent of the potential overshadowing impacts of the proposed garage/studio on the rear yard of 166 Johnston St. 4. She said that she had based the drafting of these conditions on a qualitative assessment of what, in her opinion, were the reasonable modifications that could be made to the design of the garage/studio while still retaining the functionality of the garage/studio building for the purposes of parking and other uses. 5. During the hearing the Applicant tendered a series of calculations prepared by Mr Burrell, and based on amended shadow diagrams prepared by the Applicant's architect, that sought to quantify the impact of implementing condition 4(c), concerning the length of the proposed garage/studio, and condition 4(g), concerning the configuration of the proposed clerestory window, on the solar access afforded to the rear private open space on the adjoining property at 166 Johnston Street. 6. The analysis assessed the impact of implementing these conditions under the combination of two scenarios: 1. whether the dividing fence between the properties was 1800mm or 2100mm; 2. whether a hypothetical garage/studio constructed on the neighbouring property at 166 Johnston St was 6m or 8m in depth from the rear boundary of that property. 1. The analysis confirmed that achieving solar access to 50% of the rear private open space of the property at 166 Johnston St at midday on the winter solstice was possible in some circumstances, notably where a fence of 1800m height was assumed to exist between the properties, but was constrained to a level below 50% in most other circumstances. 2. The analysis also concluded that achieving solar access to 50% of the rear open space of the property at 166 Johnston St was not achievable at 2pm on the winter solstice under any scenario, including under any combination of conditions 4(c) and 4(g). 3. As noted at [12], cl.79C(3A) of the EP&A Act provides that, if the provisions of a DCP set a standard with respect to an aspect of a development and the development application does not comply with those standards, a consent authority is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development. 4. In relation to solar access standards within LDCP 2013, the alternative proposed by the Applicant should be assessed against the objectives for solar access provided at [18], the most relevant of which for this appeal is: f. minimise the degree of overshadowing. 1. The challenge before me, in the absence of an alternative proposal that can achieve the standard established in LDCP 2013, is to identify a reasonable outcome for the neighbour that is consistent with this objective. 2. In this regard I am of the view that the perspective of the neighbour, Mr Biggart, is important as it provides guidance as to the priorities of that neighbour. Also, a consideration of the neighbour's views is consistent with the requirement of cl79C(1)(e) of the EP&A Act that the consent authority take into consideration public interest as a matter of relevance to a development that is the subject of a development application. 3. In his submission, the neighbour, Mr Biggart, confirmed that: 1. he preferred that the current 2100mm high fence should remain even though a standard fence at 1800mm height would afford him a better solar access outcome within his rear yard private open space. He specifically stated that he would prefer to sacrifice any marginal increase in solar access afforded by a lower fence in order to retain the privacy afforded to him by the higher fence; 2. he understood that construction of a garage/studio by the Applicant was reasonable and he accepted that such a structure would reduce the solar access to his rear yard private open space; 3. a rear garage/studio structure, such as that proposed by the Applicant, was a common feature of most properties on the eastern side of Piper Lane with rear yards presenting to the laneway, and that he intended to seek consent for a similar garage/ studio at the rear of his property at some future point; 4. he accepted that it was reasonable to assume the presence of a garage/studio building on his own property in undertaking an assessment of the level of solar access that might be achieved within his rear yard following construction of a garage/studio on 168 Johnston St. Mr Biggart noted that he proposed to seek approval for a 8m deep garage/studio building at the rear of his property, and he therefore accepted that a garage depth of 8m from his rear boundary was a reasonable assumption on which to assess solar access impact of the proposed development on the Subject Site. 1. Having considered the evidence before me, including the analysis of Mr Burrell, the submission of the neighbour Mr Biggart, and having given consideration to the LDCP 2013 objective to minimise the degree of overshadowing, I have concluded that an equitable outcome in relation to the Applicant's proposed garage/studio would be that its design should be modified such that: 1. the rear yard at 166 Johnston St will receive a minimum of solar access to at least 50% of its rear yard private open space at midday at the winter solstice. 2. the outcome at [75(1)] should be based on applying the model adopted by the Applicant's expert Mr Burrell for preparation of the analysis presented on pages 14 and 15 of the joint report of the planning experts, together with the following assumptions: 1. the presence of a standard 1800mm dividing fence between the Subject Site and 166 Johnston St Annandale, as Mr Biggart acknowledged that his preferred fence height of 2100mm was higher than a standard fence and would result in some marginal loss of solar access, which he would accept as a trade-off to the maintenance of privacy; and 2. the presence of a garage/studio at 166 Johnston St with an 8m depth from the rear boundary of that property, as Mr Biggart had confirmed that it was his intent to submit an application to construct such a building with such a depth at the rear of his property. 1. Based on the evidence of the planning experts, and as exemplified in the analysis presented by Mr Burrell, I have concluded that this outcome could be arrived at through a combination of modifications to the design of the Applicant's proposed garage/studio building. 2. The Applicant had proposed during the hearing, and within a submission proposing alternative conditions of consent, that a number of potential modifications could be made to the design of the garage/studio that would result in improved solar access to the private open space in the rear yard of the neighbouring property to the south. These included: 1. a reduction in the inclination, height and length of the clerestory window, including a potential reduction in the length of the clerestory window so that it would be setback by 1.35m from the new eastern wall of the garage/studio building. 2. a reduction in the internal ceiling height of the first floor studio at its southern wall to 2280mm, which, while less than the minimum ceiling height of 2400mm, nevertheless would comply with the Building Codes of Australia (BCA), as less than one third of that habitable room would have a have a ceiling height of less than 2400 but would nevertheless remain above a 2100mm height. 1. I also note that during the hearing the Applicant submitted that: 1. he did not support adoption of condition 4(c), which required a reduction in the length of the garage studio building; 2. he did not support adoption of condition 4(d), as he preferred to retain a garage ceiling height of 2400mm in order to facilitate the housing of a roller door for the garage below the floor of the first floor studio, and so maintain, in its opinion, a superior design presentation of the garage/studio structure to Piper Lane. 1. I propose that the decision as to which combination of modifications is finally made to achieve the outcome directed at [75] should be determined by the Applicant and its architect though: 1. the adoption of one or a combination of the potential modifications discussed at [77] and [78]; and 2. applying the Court's planning principle for solar access as discussed in the matter of The Benevolent Society v Waverley Council [2010] NSWLEC 1082 at [133-144]. Condition 4(i) 1. During the hearing the Applicant proposed an amended Condition 4(i), and this was not opposed by the Respondent. This amended condition retained the intent of the original condition imposed by Council, but altered the materials to be used on the window. The amended condition was: First floor window to the Piper Lane façade is to be 1 or 2 no. window/s of half width to that shown on the approved plans, double hung powder coasted aluminium in a 50mm box frame, colour to be white/off-white or a stone/beige colour. 1. Given that this condition was acceptable to both Parties, and is consistent with the intent of the original condition, I propose that it be adopted into final conditions of consent for the proposed development on the Subject Site. Conclusion 1. Based on the above, I am satisfied that: 1. in relation to condition 4(a): 1. the Applicant's proposed pit and pipe system has a grade that will facilitate self-cleaning, and that, if required, it can be adequately maintained using mechanical systems accessing the system from within a 160mm ground floor setback width. 2. the Applicant's proposal to amend condition 4(a) should be adopted, along with the inclusion of a second limb to that condition concerning the maintenance of the existing surface levels of the dwelling such that a retaining wall is not required along the boundary of the Subject Site; 1. in relation to condition 4(b): 1. the recommendation of Mr Ogg provides the best outcome for mitigating any potential stormwater impacts on both the garage that forms part of the Applicant's proposed development, as well as on other properties backing onto Piper Lane; 2. the Applicant's proposal to delete condition 4(b) should not be adopted. 1. in relation to conditions 4(c) to 4(g), the Applicant's design of the proposed garage/studio should be modified such that: 1. the rear yard private open space at 166 Johnston St is to receive a minimum of solar access to at least 50% of its rear yard private open space at midday at the winter solstice. 2. this outcome should be based on the model adopted by the Applicant for preparation of the analysis in the joint report of the planning experts, along with the following assumptions: 1. the presence of a standard 1.8m dividing fence between the Subject Site and 166 Johnston St Annandale; and 2. the presence of a garage/studio at 166 Johnston St with an 8m depth from the rear boundary of that property. 1. in relation to condition 4(i), 1. the Applicant's proposal to amend Condition 4(i), which was not opposed by the Respondent, should be incorporated with final conditions of consent for the proposed development 168 Johnston St, Annandale. 1. as discussed at [22], the Applicant's written request to vary the FSR control in LLEP 2013 as it applies to the proposed development is well founded. 1. Consequently, I conclude that: 1. The application to delete condition 4(a) should be upheld, with a new condition 4(a), in two parts, to replace it, and which will read: 4(a) (i) The kitchen and family room at lower ground floor level must be set back a minimum 160mm from the northern boundary for the full height of the lower ground floor to provide an overland flow path between Johnston Street and the rear of the property. The existing surface levels must be maintained for the length of the dwelling such that a retaining wall is not required along the boundary. (ii) the proposed Sag pit and 150mm pipe system is to be installed to dispose of surface waters from the area to the east of the kitchen/family room. The Sag pit shall measure 450mm x 450 mm (grate) and the 150mm pipe is to connect the invert of the pit to the rear yard (to the west of the kitchen/family room) into the remaining piped stormwater drainage system in accordance with Drawing H001 Revision 5 Issue E dated 8.01.17 (sic) by adaption of OLF Samp A. 1. the application to delete condition 4(b) should be dismissed. 2. the application to delete conditions 4(c) to 4(g) should be upheld, but, in line with the Court's 'amber light' approach to development appeal proceedings, the Applicant is directed to prepare amended plans, including shadow diagrams and calculations of solar access impacts to the adjoining property at 166 Johnston St, Annandale, on the basis discussed above at [79] and [82(3)]; 3. the application to delete condition 4(i) should be upheld, with a new condition 4(i) to replace it, and which will read: The first floor window to the Piper Lane façade is to be 1 or 2 no. window/s of half width to that shown on the approved plans, double hung powder coasted aluminium in a 50mm box frame, colour to be white/off-white or a stone/beige colour. 1. The Applicant's written request to vary the FSR control in LLEP 2013 as it applies to the proposed development should be upheld. Directions 1. The Court directs that: 1. the Applicant is to prepare, and file with the Court by 4:00pm on Thursday 1 March 2018, the following materials to reflect with the conclusions of this judgement at [83]: 1. amended plans; 2. amended shadow diagrams, 3. a revised version of the solar access calculations provided in the joint report of the planning experts (Exhibit 2 at pages 14 and 15, which was tendered separately as Exhibit G); 1. The Parties are to file with the Court by 4:00pm on Thursday 1 March 2018 agreed final conditions of consent based on the amended materials identified at direction (1); 2. The matter is listed for mention on Friday 2 March 2018 at 10:00am ; 3. If the directions provided at (1) and (2) are complied with, final orders will be made in chambers granting development consent, and the mention on 2 March 2018 will be vacated; 4. The matter is adjourned until 10:00am on Friday 2 March 2018; 5. The Parties are granted liberty to restore on 3 days' notice. 1. These materials having now been filed with the Court, I make the following orders. Orders 1. The orders of the Court are: 1. The appeal is upheld; 2. (Development application DAREV/2017/23 for alterations and additions to a property at 168 Johnston St, Annandale is determined by the grant of consent, subject to the conditions of consent provided at Annexure 'A'; 3. The exhibits are returned with the exception of Exhibits A and B. …………………………. Michael Chilcott Commissioner of the Court Annexure A (241 KB, pdf) ********** Amendments 09 March 2018 - Orders made; Annexure A added. 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: 09 March 2018