Land and Environment Court New South Wales Medium Neutral Citation: Idolbox Pty Ltd v City of Sydney Council [2020] NSWLEC 1213 Hearing dates: 18 March 2020 Date of orders: 15 May 2020 Decision date: 15 May 2020 Jurisdiction: Class 1 Before: Dickson C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Consent is granted to Development Application No. D/2017/1606 for alterations and additions to the existing building for the construction of a part 4, part 5 and part 6 storey mixed use development containing basement storage and services; ground floor retail space and seven residential apartments at 42 Hardie Street, Darlinghurst (Lot 1, DP 997066, subject to conditions in Annexure A. (3) The exhibits are returned with the exception of A, B, D and 1. Catchwords: DEVELOPMENT APPLICATION – Alterations and additions to a contributory building – impact on the significance of the heritage conservation area – reasonableness of solar access impact to adjoining property – appeal upheld Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Sydney Local Environmental Plan 2012 Cases Cited: BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Blackmore Design Group Pty Ltd v Manly Council [2014] NSWLEC 1180 Davies v Penrith City Council [2013] NSWLEC 1141 Edam Properties Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 1203 Grigorakis v Bayside Council [2016] NSWLEC 1573 Parsonage v Ku-ring-gai [2004] NSWLEC 347 Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2018] NSWLEC 191 The Benevolent Society v Waverley Council [2010] NSWLEC 1082 Texts Cited: Apartment Design Guide Sydney Development Control Plan 2012 Category: Principal judgment Parties: Idolbox Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: M Staunton (Applicant) J Reid (Respondent) Solicitors: Boskovitz Lawyers (Applicant) City of Sydney Council (Respondent) File Number(s): 2018/167823 Publication restriction: No Judgment 1. COMMISSIONER: The Applicant seeks consent for alterations and additions to an existing two-storey car repair shop. The redevelopment aims to provide a new ground floor shop and seven apartments over a new basement. The works are proposed at 42 Hardie Street, Darlinghurst (Lot 1 DP 997066). Following the expiration of the deemed refusal period, the Applicant filed an appeal with the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. The appeal was subject to mandatory conciliation on 27 June 2019 (s 34 of the Land and Environment Court Act 1979 (LEC Act), however agreement was not reached and conciliation was terminated. Following the conciliation conference, the Applicant was granted leave to amend their application. The submissions and the expert evidence in the hearing focus on these updated plans. 3. The Council argues that the development application should be refused by the Court on two grounds: 1. That the proposed development has a detrimental impact on heritage conservation area (HCA) and that the impact is sufficient to warrant refusal of the application; and 2. that the impact of the proposed development on the solar access of the adjoining properties is unacceptable and is sufficient to warrant refusal of the application. 1. Collectively the Council argues that the development does not exhibit design excellence, as defined by the Sydney Local Environmental Plan 2012 (LEP 2012) because of its detrimental heritage and overshadowing impact. 2. For the reasons outlined at [58]–[62] and [92]–[114] and in the conclusion of the judgment, I have determined that the proposed development warrants approval and that the appeal should be upheld. The Site and Locality 1. The subject site is located within the Oxford Street and Victoria Street HCA (Schedule 5, LEP 2012). The existing building is nominated as a contributory building under the Sydney Development Control Plan 2012 (DCP 2012). The site historically operated as an auto repair business which continues to the present. 2. Surrounding the site is a mix of uses (commercial and residential) with varied height and density. The Sydney Jewish Museum is situated to the west of the site. 1. The existing two storey building was originally constructed in 1911 as a stable. It was converted in 1919 into a motor garage. Further alterations and additions occurred in 1922, including extending the former loft to accommodate a first floor apartment (Exhibit 3). 2. The heritage experts disagree as to the appropriate description of the character of the immediate locality. The following description is summarised from the Statement of Significance for the HCA (Statement of Significance): "The conservation area comprises the two main streets of Victoria Street and Darlinghurst Road from north of Sacred Heart Church and School to William Street/ Craigend Street, and also extends as far west as Forbes Street. The subdivision pattern along the streets is irregular, comprising small allotments and larger sites, such as the churches and hospitals (Sacred Heart Church, School and Hospice between Darlinghurst Road and Victoria Street and St. Vincent's Hospital on Victoria Street) and sites that have been recently amalgamated. Views to Hyde Park from Darlinghurst Road Ridge to Oxford Street and glimpses of the Harbour occur. There are some avenues of street planting. The central part of both streetscapes is comprised of predominately two to four storey late nineteenth century commercial/ residential terraces, including numerous restaurants and cafes, of varying character and intactness. Interspersed with larger buildings, including recent infill developments, a number of which are intrusive elements (eg. the eight storey Camelot Apartments on the north-eastern corner of Liverpool and Victoria Streets) and interwar residential flat buildings, particularly in the northern end of Darlinghurst Road. Buildings typically have no or shallow setbacks, with the predominant building material being rendered brickwork, face brick or rendered masonry. Enhancing the character of both streets are a number of significant heritage items, including the Darlinghurst Fire Station, St John's Church and Rectory, the Green Park Hotel, the main St Vincent's Hospital building and the Sacred Heart Church and School." (Emphasis added). (Exhibit 3) 1. Hardie Street is described as: "This is a north- south street that extends from Darlinghurst Road to Burton Street. It comprises two storey Victorian terraces of varying intactness interspersed with three to four storey Inter-war residential flat buildings. Rating: B" (Emphasis added). (Exhibit 3) 1. Hayden Place is described as: "Hayden Place is a small lane between Victoria Street and Hardie Street. Mixed Development. Rating: C." (Emphasis added). (Exhibit 3) 1. The evidence refers to two properties located in proximity of the proposed development, they are: * 138 Burton Street is a single dwelling of a terrace form. At the rear, attached to the dwelling, is a glass conservatory. The rear yard is located facing Hayden Place, with access via a garage door to the lane. * 44 Hardie Street is nominated as a contributory item in the HCA. It is a four storey liver brick residential flat building with a roof top terrace. it has a zero setback to Hayden Place and Hardie Street. Public submissions 1. The application was notified in accordance with the provisions of DCP 2012. A number of objections to the development were received by Council. They identify the following concerns: * The proposed development will result in a substantial reduction in light and ventilation to residential units at 44 Hardie Street, Darlinghurst, particularly for units at the lower levels of the building. * The layout of a number of the units in 44 Hardie Street is such that the primary (or sole) direct light for the apartment is received from a window fronting Hayden Place. This window will be impacted by the development. * The development will impact on the availability of on street parking. * Management of waste generated. * Noise, dust and disturbance experienced during construction. * Overlooking from the new apartments into 44 Hardie Street due to the narrowness of the Hayden Place. * Hardie Street is a valued heritage asset and the proposed development is inconsistent with the heritage character. * The development will impact on views to the sky as well as light and ventilation for pedestrians in Hardie Street. * The height and bulk of the development will remove public sight lines and detrimentally affect streetscape. * The development is oversized and out of character. 1. At the commencement of the hearing the Court heard from two objectors on site. They raise the following concerns: 40 Hardie Street: * Likely impacts of the proposed works on the foundations or boundary wall on 40 Hardie Street. * The impact on future potential for redevelopment of 40 Hardie Street if windows are approved on the eastern façade of the proposed development. * That the development potential of the property will be reduced by the proposed development. * Potential for the site to contain contaminated soil, or contaminating materials, due to its long historic use as a motor vehicle repair workshop. Concerned that contamination has not been adequately addressed by the applicant. * The proposed lift may cause vibration and noise or impact to the adjoining properties foundations. * Potential for noise impacts from other mechanical equipment including hot water heaters and air conditioning units. 44 Hardie Street: * That the proposed development will impact on solar access to the units kitchen window (faces north on the boundary with Hayden Place). Further the resident is concerned that the height of the proposed building will effectively block access to direct light. * The resident emphasises that the kitchen window in question provides the only direct sunlight to the ground floor unit and assists in ventilation. The loss of solar access, daylight and ventilation would be significant to the resident. Planning Controls 1. The subject site is zoned B4: Mixed use under LEP 2012 and is subject to development standards for height (18m) and floor space ratio (FSR) (3:1). 2. As the site is located within a HCA, cl 5.10 of LEP 2012 applies. Clause 5.10(4) operates to require the Court, as a mandatory precondition to consent, to consider the effect of the proposed development on the heritage significance of the HCA. If there is a finding that there is a detrimental impact, the consent authority takes that impact into consideration in the overall merit assessment of the application. 3. The design excellence clause at cl 6.21 of LEP 2012 applies to the proposal. It has the objective of delivering the highest standard of architectural, urban and landscape design. In considering whether development to which cl 6.21 applies, the consent authority must have regard to whether the proposal exhibits a high standard of architectural design, materials and detailing appropriate to the building type and location, at cl 6.21(4)(a), whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, at cl 6.21(4)(b), whether the development detrimentally impacts on view corridors, at cl 6.21(4)(c) and how the proposed development addresses matters including heritage, the buildings bulk massing and modulation, and environmental impacts arising from the development, at cl 6.21(4)(d). 4. Clause 6.21(3) of LEP 2012 is a precondition and requires the consent authority to be satisfied that the proposed development exhibits design excellence prior to the grant of consent. 5. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) applies to the development: cl 4 SEPP 65. 6. Clause 28(2) of SEPP 65 requires that a consent authority, in determining whether to grant consent, must consider the following: 28 Determination of development applications ... (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide. 1. The relevant provision in the Apartment Design Guide (ADG) states: "Objective 3B-2 Overshadowing of neighbouring properties is minimised during mid-winter. Design Guidance … - Solar access to living rooms, balconies and private open space of neighbours should be considered. - where a neighbouring property does not currently receive the required hours of solar access, the proposed building ensures that solar access to neighbouring properties is not reduced by more than 20%. - if the proposal will significantly reduce the solar access of neighbours, building separation should be increased beyond the minimum contained in Section 3F: Visual Privacy. - Overshadowing should be minimised to the South, or downhill, by increased upper level setbacks. …." 1. DCP 2012 applies to the subject site and the proposed development. The specific provisions relevant to the issues in dispute are extracted below. 2. DCP 2012 has specific controls for HCA's at cl 3.9.6: "3.9.6 Heritage conservation areas ... (1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing the heritage conservation area statement of significance and responding sympathetically to: (a) topography and landscape; (b) views to and from the site; (c) significant subdivision patterns and layout, and front and side setbacks; (d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings; (e) the interface between the public domain and building alignments and property boundaries; and (f) colour schemes that have a hue and tonal relationship with traditional colour schemes. (2) New infill buildings and alterations and additions to existing buildings in a heritage conservation area are not to be designed as a copy or replica of other buildings in the area, but are to complement the character of the heritage conservation area by sympathetically responding to the matters identified in (1)(a) to (e) above. (3) Infill development is not to include garages and car access to the front elevation of the development where these are not characteristic of the area. (4) Development within a heritage conservation area is to be consistent with policy guidelines contained in the Heritage Inventory Assessment Report for the individual conservation area." 1. The existing building on the subject site is nominated on the Building contributions map as being a contributory building. The relevant controls in DCP 2012 for contributory buildings are at 3.9.7: "3.9.7 Contributory buildings (1) Contributory buildings are to be retained unless the consent authority determines the replacement is justified in exceptional circumstances. (2) Alterations and additions must not significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements. (3) Alterations and additions to a contributory building are to: (a) respect significant original or characteristic built form; (b) respect significant traditional or characteristic subdivision patterns; (c) retain significant fabric; (d) retain, and where possible reinstate, significant features and building elements, including but not limited to original balconies and verandahs, fences, chimneys, joinery and shop front detailing; (e) remove unsympathetic alterations and additions, including inappropriate building elements; (f) use appropriate materials, finishes and colours; and (g) respect the pattern, style and dimensions of original windows and doors. (4) Where an addition to the building is proposed, significant external elements are to be reinstated. …" 1. Clause 3.9.10 (3) of DCP 2012 contains the following control: Original materials are to be retained, unless it can be demonstrated that significant deterioration has occurred and repair is not practical. Any replacement should be with similar materials. (Emphasis added). 2. DCP 2012 contains provisions in relation to solar access at 4.2.3.1. Relevantly at sub cl (3) the controls state: "4.2.3.1 Solar access ... (3) New development must not create any additional overshadowing onto a neighbouring development where that dwelling currently receives less than 2 hours direct sunlight to habitable rooms and 50% of the private open space between 9am and 3pm on 21 June." 1. The relevant objective for control 4.2.3(a) is: "Ensure that residential amenity is enhanced with landscaping, private and common open space, sun access, ventilation and acoustic privacy." (Emphasis added). 2. Relevant to the submissions of the parties about the application of the preceding provisions of DCP 2012, Section 4.15(3A) of the EPA Act provides: (3A) Development control plans 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. In this subsection, standards include performance criteria. Does the proposed development have a detrimental heritage impact? 1. Ms Mishra, for the Respondent, and Mr Kovac's, for the Applicant, participated in joint conferencing and produced a joint heritage report that was tendered as Exhibit 3. The experts also gave oral evidence in the proceedings. 2. The heritage experts reached agreement on the following: * That the building is a contributory building in the HCA but is difficult to classify 'because it seems to exhibit a mixture of attributes' (Exhibit 3) (emphasis added). In oral evidence this was described as the building exhibiting layers of works undertaken since it's construction as a stable in 1911, then conversion to a motor garage in 1919 and the provision of residential accommodation at the first floor in 1922. * That it is possible to retain more of the fabric of the existing southern façade of the building, including first floor windows, but the experts disagree as to the merits of doing so. * The significance assessment, grading, conclusion and recommendations contained in the independent heritage assessment prepared for the subject site in July 2019 by Urbis (the Urbis Report) is accepted. 1. The experts disagree on the following: * Whether there is an adverse impact on the heritage HCA; * whether there is an adverse impact on the heritage significance of the contributory building on the subject site; and * whether the development demonstrates design excellence. Heritage Conservation Area 1. Mr Kovac's concludes that the proposed development will not have a detrimental impact on the significance of the HCA. He argues that the proposed development achieves the relevant policy guidelines for the recommended management of the HCA by the retention of the inter-war residential and commercial buildings and the retention of scale. He argues that the existing zero setback alignment, which is typical in the HCA, is maintained and reinforced. 2. In terms of the proposed addition it is Mr Kovac's evidence that: "the top floor of the addition is not visible from the street level public domain and the visible additions present as a single rectangular form defined at the top with horizontal parapets incorporating limited projections. This approach is very much in line with surrounding inter-war residential flat buildings". (Emphasis added). (Exhibit 3) 1. In assessing the proposed additions in context Mr Kovac's concludes that: "The original scale of the building remains discernible assisted by the provision of a gap between the top of the Hardie Street elevations parapet and the new work. The change of materials on the Hayden Place elevation has the same effect. The parapet line of the additions matches the parapet line of the neighbouring Ben Nevis building and the additions are not over scaled". (Exhibit 3) 1. Further, Mr Kovac's argues that the immediate context of the site (within the HCA) is characterised by tall buildings, built to the street edge, with which the proposed development is compatible. 2. Mr Kovac's gives weight to the proportional studies of the proposed addition prepared by the architect as part of the set of architectural plans. 3. Ms Mishra argues that the extent of proposed demolition of the contributory building, including its interior walls, a proportion of the building facades and the hipped roof will result in: "a significant and irreversible adverse impact on the physical integrity and intactness of the building, specifically reducing its contribution to the heritage conservation area". (Exhibit 3) 1. Ms Mishra disagrees with the Applicant's description of the loggia being 'reinstated'. She argues that reinstating entails the restoration of an element to its former state. On this basis she asserts that the loggia should be consistent with the original depth of 3.6m. 2. Further, Ms Mishra argues that the hipped roof is visible from Hardie Street and forms part of the built form of the subject building. Consistent with the controls in DCP 2012 she argues that the partial retention of the hipped roof is required to allow for an understanding of the original building. 3. In terms of the additions to the proposed building Ms Mishra's evidence is: "The proposal more than doubles the scale of the building and is not physically separated enough from the existing building to appropriately perceive the existing scale as claimed by ZK. Change of finishes and colours (not materials) within the same plane of the façade to separate the existing building from the new addition does not satisfactorily retain the existing scale. This is also not a substitute for separation of building form. If the ground floor walls are again covered in graffiti (like they are now), then the tokenistic colour separation line would be further blurred. The development completely alters the silhouette of the building from all sides." (Exhibit 3) 1. Ms Mishra concludes that the proposed addition will overwhelm the existing building and change the relationship of the existing building with the streetscape of Hardie Street and Hayden Place. Contributory Building 1. Mr Kovac's argues that the proposed development, representing further change in the building, is consistent with the historic development of the site. It is his evidence that the proposed works: retain the important Hardie Street façade; reinstate the loggia; and retain a large part of the Hayden Street elevation. He argues this approach has merit as it "allows for a three-dimensional understanding of the Hardie Street elevation" (emphasis added) and reinstates the loggia to a sufficient depth to allow it to be legible (a depth of 1.3m) (Exhibit 3). 2. Further, Mr Kovac's argues that the retention of the existing hipped roof is not required to understand the contributory building in three dimensions. He notes that the view to the existing roof from surrounding streets is incidental and the roofs contributory value is marginal. 3. In the alternative Ms Mishra argues that the proposal is not sympathetic to the heritage significance of the contributory building. Her reasoning is: * It provides inadequate retention of fabric, essentially proposing only the part retention of two facades. * The proposal is a substantial demolition which will result in significant and irreversible impacts which will reduce the buildings contribution to the HCA. * As a contributory item, the building is a rare example of a stable converted to an inter-war Georgian revival style garage building with residential above. * As proposed the reinstatement of the loggia is inappropriate. It should be reinstated to its original depth of approximately 3.6m. * That the demolition of the hipped roof of the building is inappropriate and partial retention is necessary to allow an understanding of the original building form. 1. Mr Kovac's concludes that the proposed development retains all the culturally significant fabric, maintains the interpretation of the existing contributory building as a motor garage and will not have a detrimental impact on the contributory building and on the HCA. 2. Ms Mishra concludes that the proposed development will have an unacceptable adverse impact on the contributory building and on the HCA. On this basis she argues that the proposed development fails to exhibit design excellence. Submissions 1. Mr Staunton argues that it is relevant that the provisions of cl 5.10(4), and the requirement for the consent authority to consider the impact of the proposed development on the significance of the HCA, is contained within LEP 2012 along with the development standards for height and floor space ratio (FSR). He argues this on following grounds: * Firstly, that whilst there is no primacy between the development standards and the requirements of cl 5.10(4) "it must be noticed that the height and FSR development standards are conditional prohibitions on the carrying out of development in excess of those standards which can be contrasted with cl. 5.10(4) which at its highest requires only that the consent authority consider the effect of the proposed development on the significance of the HCA" (emphasis added) (Applicant's written submissions 23 March 2019, p. 2, 8). * Secondly, in Mr Stauton's submission, it can be inferred that the Council knew of the existence of the HCA, and that the subject building was a contributory item, at the time it set the 18m height limit and a 3:1 FSR for the site. * The Council took a nuanced approach to the delineation of the applicable height and storey controls that apply to the HCA, as evidenced in the maps that form part of LEP 2012. Mr Staunton identifies that in proximity to the site varied heights of 12m, 15m, 18m and 22m apply to adjoining and surrounding land. * Further, the site is located in part of Hardie Street, and the HCA, where taller buildings dominate the immediate context. * Finally, that the reasoning in Grigorakis v Bayside Council [2016] NSWLEC 1573 ('Grigorakis') relied on by Ms Reid is distinguished on the facts of the case, notably that Brown C was considering the relationship between LEP and DCP height controls. 1. Mr Staunton submits that the Court's assessment of the appropriateness of the development on heritage grounds (i.e. the determination of the impact of the development on heritage significance of the HCA) should not be conflated with the assessment of the acceptability of the solar impact of the development. 2. Mr Staunton notes that the Council accepts that the concerns expressed by Ms Mishra in relation to the structural adequacy of the proposed work has been resolved by the provision of additional information and agreed proposed conditions of consent (Applicant's written submissions 23 March 2020, para 44). 3. Mr Staunton submits that the focus of the controls, and ultimately the assessment by the Court, is the impact of the proposed development on the significance of the HCA. He notes that the significance of the HCA is detailed in the Statement of Significance. He argues that it is relevant that this statement does not specifically identify the subject building "for its contribution to the historic, aesthetic or social significance of the HCA'" (emphasis added) (Applicant's written submissions 23 March 2020, para 47). Further he argues: "The highest it gets in terms of matters mentioned in the statement of significance is that the building was built as stables with a hay loft in 1911 and had overlays in 1914, 1919, 1922, 1938 and 1950. The building is not Victorian but late federation with an interwar overlay and then further post war development" (Applicant's written submissions 23 March 2020, para 47). 1. Mr Staunton notes that the recommended management measures seek to retain inter-war commercial and residential development. He submits that on Mr Kovac's evidence retention of the most significant fabric is achieved by the proposed development. Further, the proposal is a form of redevelopment that will allow the public to continue to view the buildings previous construction phases, and identify the new work. Whilst the respondent seeks the retention of the roof of the existing building, Mr Staunton argues that on Mr Kovac's evidence it is unnecessary as: 'its visibility from the public domain is limited and its removal does not affect the significance of the HCA'. 2. Finally Mr Staunton argues that, in contrast to the respondents criticisms of the new work, "the architect has employed design excellence to ensure that the additions are not top heavy and do not lead to unacceptable size, scale and bulk in comparison to the existing building'" (emphasis added) (Applicant's written submissions 23 March 2020, para 61). In support of this submission Mr Staunton relies on the proportional analysis prepared by the architect, at drawing 004C and 005C in Exhibit D, and the evidence of Mr Kovac's (refer to paragraph [36]). 3. Ms Reid argues that the Court should not accept the submission that the colocation of the height and FSR development standards with the nomination of the site in HCA in LEP 2012 indicates that the Council acknowledged in the instrument that the site had development potential notwithstanding it is a contributory building (Respondents written submissions, 2 April 2020, 3). Ms Reid's reasoning is as follows: * The HCA derives its significance, in part from the different forms of historic development. The HCA is not consistent in building form or use. Any redevelopment of the subject site needs to respect this eclectic mix of development. * The development standards in LEP 2012 are an upper limit to development. * That the approach adopted by Brown C in Grigorakis at [35] - [38] in considering the relationship between the heritage provisions in the LEP at cl. 5.10(4) and the development standards in the LEP and DCP should be followed. Namely that there is no primacy or ranking of the planning controls that influence development on the site and that they both apply. * That there is necessarily a fine balance in determining the appropriate built form on the site. The evidence of Council's urban design, town planning and heritage experts is that "if the impact of the bulk and scale of the development is reduced to address the impact on the conservation area, it will also have the benefit of reducing solar impact on 138 Burton Street and 44 Hardie Street" (emphasis added) (Respondents written submissions, 2 April 2020, 6). 1. Ms Reid notes that the heritage experts in their joint report state their agreement within (the Urbis Report. Ms Reid notes that the recommendations of the Urbis Report is that the existing building is of heritage value, and should be considered for listing as a local heritage item. She argues that the expert's agreement should be given weight by the Court and should influence the way any intervention to the existing fabric, or extension to the existing building, is considered. 2. Ms Reid submits that the Court would prefer the evidence of Ms Mishra that the proposed development fails to: firstly maintain the legibility of the existing external form and scale of the building; and secondly result in substantial demolition of contributory fabric without a valid or acceptable cause. Further, Ms Reid argues that the Court should give weight to the agreement of Mr Kovac's that more fabric can be retained, especially in the context of the provision at cl 3.9.1(6) of DCP 2012 which requires such demolition to be justified. 3. Ms Reid notes that the most critical elements that are the subject of demolition or alteration in the proposal are: * the demolition of the hipped roof * the decision to only partly reinstate the front veranda 1. On the basis of Ms Mishra's evidence, Ms Reid concludes that the proposed works will present as a large addition, which in form will both dominate and confuse the legibility of the contributory item and detrimentally impact the significance of the HCA. Findings 1. LEP 2012 establishes the desired future character of an area through zoning, the development standards (height, FSR), provisions relating to heritage significance (cl 5.10(4)) and the requirement for the proposed development to exhibit design excellence (cl 6.21(3)). 2. The subject site forms part of a HCA and is a contributory building. The area to be considered in the assessment of any impact of the proposed works on the significance of the HCA is the bounds of the conservation area itself (included in map form in an annexure to Exhibit 3). However, I accept the evidence of Mr Kovac that the most relevant part of the HCA is the specific context of the south end of Hardie Street which is characterised by tall buildings, built to the street edge. Further, I note that the buildings in the block between Hardie and Liverpool Street range in height between three and six storeys. LEP 2012 nominates heights in the vicinity of the subject site of 18m, 22m and 12m (Exhibit C). This variation is mirrored in the FSR controls. Whilst the LEP nominates the locality as with a HCA, by the strategic choice of development standards which envisages increases to building envelopes on these sites, the LEP also nominates the area for change and potential increases in density. 3. Hardie Street is narrow which has the effect of truncating the extent of streetscape which can be seen by a pedestrian. The expert's, while differing in their evidence, at the most argued that the proposed development will be viewed in the context of 4-5 adjoining buildings along Hardie Street. The increased height and density proposed by the development is compatible with the form and scale of the streetscape of Hardie Street, 4. In considering the expert evidence and with the benefit of a site view I am satisfied that the proposed development will not result in a detrimental impact on the significance of the HCA or the contributory items. I accept Mr Kovac's evidence in this regard. My reasoning is as follows: * The proposed development retains the layers of development that have historically occurred on the site, including components of its early fabric. I am satisfied that the manner of this retention is consistent with the Statement of Significance and the provisions of DCP 2012 at 3.9.7. * The Statement of Significance identifies the variation in character, scale and intactness found in the HCA. I am satisfied that the proposed development is compatible with this character. * I accept Mr Kovac's evidence that the maintenance of a zero setback appropriately reinforces the street alignment and is a typical feature in the specific context of the HCA within in which the development will sit. * Further, I accept and prefer Mr Kovac's evidence in relation to the acceptability of the proposed additions. I am not persuaded by Ms Mishra's objection to the scale and proposed addition as being overwhelming of the existing building or when viewed in the streetscape. The proposed development will alter the overall form and density of the building on the site, but I am satisfied that it will do so on a considered and designed manner. This is best demonstrated in the proportional studies prepared by the architect (DA005, Exhibit D). I accept Mr Staunton's submissions in this regard. * I am not persuaded on Ms Mishra's evidence that the retention of the hipped roof of the existing building is required to be maintained. Whilst this may be an alternative approach to the redevelopment of the site it is not the proposal before the Court. I am not persuaded that Ms Mishra's evidence identifies what or how a detrimental impact to the significance of the HCA arises from the proposed demolition. Nor has she particularised how she says the has failed to justify its approach in accordance with the provisions of DCP 2012 at 3.9.7. I accept the evidence of Mr Kovac at paragraph [43]. * The Urbis Report, with which the experts agree, identifies in its schedule of significant elements, with a moderate rating, the "external massing of the subject building to Hardie Street and Hayden Place with the exception of the rear fibro addition at the first level of the building'" (emphasis added) (Exhibit 3). I accept Mr Kovac's evidence that the proposed development retains the important Hardie Street façade; reinstates the loggia within the context of the redevelopment; and retains a large part of the Hayden Street elevation. I am satisfied that the development will retain a three dimensional understanding of the building. 1. I accept the submission of Mr Staunton that the focus of the Court's assessment of any heritage impact is on the Statement of Significance. I am satisfied that the proposed development will achieve contextual fit in the HCA as demonstrated in DA 401 in Exhibit D, and will not have a detrimental impact on the significance of the HCA. Is the solar impact of the proposed development unacceptable? 1. Mr Darroch (Planner) and Mr Jon Johannsen (Urban Designer) for the Applicant, and Ms Douglas (Planner) and Ms Pressick (Urban Designer) for the Respondent participated in a joint conference and produced a joint expert report. These experts were not required for oral evidence. 2. The principal issue addressed in the evidence of the town planners is whether the overshadowing impacts arising from the development are acceptable. The relevant properties identified as being affected are 138 Burton Street and a number of units within 44 Hardie Street. 3. The experts disagree as to the extent of impact experienced by these two properties. The differences arise as follows: * Whether the glass conservatory is included in the open space area for 138 Burton Street, or whether it is part of the dwelling. * The weight given to the access to roof top communal open space for residents of units at 44 Hardie Street. * The consideration of the nil to limited existing access to northern sunlight for habitable rooms in apartment 3, 7 and 11 in 44 Hardie Street. 1. Overshadowing impacts to 136 Burton Street are not the subject of evidence by the experts on the agreed basis that: "the experts agree that No. 136 Burton Street is impacted, but this site is currently the subject of an LEC appeal for a hotel. In this scenario, the overshadowing impacts would be to a hotel commercial use" (Exhibit 4). This position is adopted by the parties. 2. Subsequent to the hearing the appeal in regard to 136 Burton Street was upheld: Edam Properties Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 1203. 138 Burton Street 1. Ms Pressick and Ms Douglas argue that the overshadowing impacts arising from the proposed development are unacceptable on the following grounds: * On applying the provisions of DCP 2012 at 4.2.3.1 (2) and 4.2.3.1 (3) 8sqm of private open space in the adjoining property (138 Burton Street) is required to receive 2 hours sunlight for the proposed development to be compliant. * The Applicant's modelling of the actual solar impacts, plus the scenarios of the existing building with either an additional one, two or three levels, demonstrates that even the scenario of one additional level on the existing building would not provide solar access to 138 Burton Street that was compliant with DCP 2012. * The modelled scenario of 'existing + 1' results in a significantly more acceptable solar access impact, whilst allowing for development of the site. * That "the overshadowing impact of 'existing + 2' and 'existing + 3' scenarios both have a significantly detrimental overshadowing impact to 138 Burton Street." (Emphasis added) (Exhibit 4). * The proposed development will result in overshadowing impacts that reduce the amount of sunlight to 138 Burton Street to less than two hours. 44 Hardie Street 1. Ms Pressick and Ms Douglas argue that the overshadowing impacts to the affected units in 44 Hardie Street are unacceptable on the following grounds: * As a result of the proposed development, units 7 and 11 will receive no solar access to their northern windows on June 21 between 9am and 3pm. These northern windows to rooms variously used as sunroom, study or kitchen. Loss of solar access to these windows will affect light in the apartments and the adjoining bedroom. * Further, the layouts of the apartments 3, 7 and 11 have living areas with south facing windows to a light well. * The eastern windows of units 7 and 11 receive no solar access as the building is in self-shadow. * In combination this will mean that as a result of the proposed development units 7 and 11 will receive no solar access on June 21 between 9am and 3pm. * "… it is considered that occupiers [of units 7 and 11] would rely on the north facing sunroom/ kitchen/ study window to obtain sunlight during winter months. The removal of all solar access to these apartments by the proposal will have a significant detrimental impact on the amenity and liveability of these apartments" (emphasis added) (Exhibit 4). 1. Ms Pressick and Ms Douglas conclude that the overshadowing of the northern windows that will result from the proposed development "in the context of the existing solar access being so poor, is detrimental to the occupants amenity, and contradicts provision (3) of Section 4.2.3.1 of SDCP 2012, which intends to preserve solar access to neighbouring developments, where their amenity is substandard" (emphasis added) (Exhibit 4). 2. Ms Pressick and Ms Douglas disagree that the loss of solar access to the apartments is offset by the provision of roof top communal open space. They argue that whilst the communal open space does provide additional amenity to the apartment block, it does override the need for maintenance of solar access to habitable rooms. They argue that such concessions are not provided for in DCP 2012 or the ADG. 3. Finally, Ms Pressick and Ms Douglas argue that the applicant has failed to demonstrate whether the proposed development complies with the ADG Objective 3B-2(3) which states: "where an adjoining property does not currently receive the required hours of solar access, the proposal ensures solar access to neighbouring properties is not reduced by more than 20%." (Emphasis added). 4. In conclusion Ms Pressick and Ms Douglas argue that the application warrants refusal on the basis of the detrimental solar impact to 138 Burton Street and the affected units in 44 Hardie Street. 5. Further, Ms Pressick argues that the overshadowing impacts are indicative of the proposed addition being inappropriate in scale. In her evidence Ms Pressick develops a scenario, or alternative building form, for the site (extracted below). Her evidence concludes that: "36.18 The scenario in Figure 14 retains the roof form and façade walls to the existing motor garage, with a shop at ground floor and apartment above. The proposed stair and lift are retained in their proposed location and the rear addition includes three levels up to the height of 'Existing +1'. This results in three new apartments at the rear. Figure 14 shows this scenario sketched over the proposed section to illustrate the differing bulk and scale. The proposed FSR of this proposal is approximately 1.77:1. 36.19 Figure 14 offers a balanced option that has adequate regard to the heritage impacts, overshadowing impacts and appropriate bulk / massing. In this way it clearly demonstrates design excellence, and shows how the site could be developed for a balanced outcome. 36.20 The bulk and massing of the proposal before the court has devastating overshadowing impacts on 3 residents (4, if apartment 3 of 44 Hardie Street is considered) and cannot be considered to be the "highest standard of architectural and urban design" in line with the objective of Clause 6.21 of the LEP. The height and FSR controls in the LEP are maximum standards and not an automatic right. Consideration of Design excellence, including environmental impacts, are one of a number of considerations that address the constraints of the site and may result in maximum controls not being realised." (Exhibit 4) Figure 14 extracted from Exhibit 4 1. The evidence of Mr Darroch and Mr Johannsen in relation to the overshadowing impacts on 138 Burton Street arising from the proposed development is: * The conservatory room is not outdoor space for the purpose of assessing solar impact to the residents private open space in assessing compliance with 4.2.3.1 (3) of DCP 2012. * Site photographs indicate that the actual private open space has been further reduced by the construction of a parking space. * The solar diagrams significantly overestimate the extent of solar access available as the impact of any existing overshadowing from structures, planting and the like is not included and the extent of private open space has not been reduced by the presence of the conservatory or the parking space. * The property has further private open space by way of balconies fronting Burton Street which achieves more than two hours sunlight in mid-winter. * Similarly the property has north facing windows to habitable rooms at the first and second floors which receive more than two hours sunlight. * The proposed development meets the DCP and ADG requirements in relation to the retention of solar access to 138 Burton Street. 1. Mr Darroch and Mr Johannsen also note: "the proposal as amended has been reduced in height so that it is a storey lower than the control on the west and is stepped back at the upper level on the east and is 4.4m to 1.4m below the SLEP 18m height control all directly related to amendments to maximise solar access to neighbouring properties" (emphasis added) (Exhibit 4). 2. I note Mr Darroch and Mr Johannsen make reference in their evidence to Unit 4 as the ground floor unit at 44 Hardie Street. Correctly this is a reference to Unit 3, which is adopted in the following. 3. The evidence of Mr Darroch and Mr Johannsen in relation to the overshadowing impacts on 44 Hardie Street is as follows: * Unit 3, 7 and 11 do not currently receive two hours solar access to their living rooms, balconies or private open space. * All of the units in 44 Hardie Street have access to a communal roof top terrace. This terrace receives unrestricted solar access, compliant with the ADG. * The ADG design guidance at 3B-2(3) is focussed on solar access to living rooms, balconies and private open space. It is this solar access that cannot be reduced by more than 20%. * The proposal does not change the existing solar access (as considered by the ADG) as the affected windows are part of the bedroom of the apartments, which is not nominated in the preceding control. * The control at 4.2.3.1 (2) of DCP 2012 is not breached as the living rooms of units 3, 7 and 11 have south facing windows. * That as DCP 2012 "provides a 'no additional overshadowing' standard for solar access to neighbouring dwellings which only applies where that dwelling currently receives less than two hours of direct sunlight to habitable rooms and 50% of the private open space. The clause is conjunctive, and does not say or consequently, the standard is met and no more onerous standard can be applied" (emphasis original) (Exhibit 4). * The level of overshadowing experienced is consistent with the character and context of the site – in particular the B4 Mixed use zoning, a height control of 18m and FSR of 3:1. 1. In response to Ms Pressick's alternative scenario (refer to paragraph [73]), Mr Darroch and Mr Johannsen argue that it represents a "completely different application which is approximately 50% of the height and FSR"(emphasis added) rather than an assessment of the application before the Court and its compliance with the design excellence provisions of LEP 2012. They further argue: "24.17 The suggestion by AGD and JP that the proposed building should be decreased by a further 6m to a height of 9 – 10m and decreased in FSR from 2.92:1 to 1.64:1 (44% reduction) and reduce the proposal from 8 units to 4 units is not considered to be consistent with the Aims and Objectives of the LEP or the Objects of the Act to promote orderly and economic development. … 24.23 It is considered that the proposal achieves an appropriate balance in terms of retaining a level of solar access to neighbouring properties and achieving the objectives of the zone through the development. 24.24 It is considered that on balance the proposal achieves acceptable solar outcomes for the properties to the south at 138 Burton Street and 44 Hardie Street and is consistent with the Objects of the Act, and Aims and Objectives of the planning controls." (Exhibit 4) Submissions 1. Mr Staunton submits that the concept of constraint on development potential is relevant to the Courts consideration of the acceptability of the solar impact of the proposed development. He identifies two judgements relevant to the current proceedings: firstly Blackmore Design Group Pty Ltd v Manly Council [2014] NSWLEC 1180 at [38] to [53] ('Blackmore v Manly') and secondly Parsonage v Ku-ring-gal [2004] NSWLEC 347 ('Parsonage v Ku ring gai'). 2. Mr Staunton argues that Blackmore v Manly is relevant for its approach to the balancing of the impact on solar access on an adjoining neighbouring and the constraint on development potential of the subject site. He notes: "In Blackmore, Tuor C considered the development potential of the site having regard to the development standards and then considered whether it was unreasonable to constrain the development potential of the proposed development in order to maintain solar access to adjoining development and found that there would be an unreasonable constraint on the development potential of the proposed development." (Emphasis added) (Applicant's written submissions 23 March 2019, p. 3, 13) 3. Mr Staunton argues that the relevance of Parsonage v Ku-ring-gai is its finding that at paragraph [8]: "The ease with which sunlight access can be protected is inversely proportional to the density of development. At low densities, there is a reasonable expectation that a dwelling and some of its open space will retain its existing sunlight. (However, even at low densities there will be sites and buildings which are highly vulnerable to being overshadowed.) At higher densities sunlight is harder to protect and the claim to retain it not as strong." 1. Applying the principal in Parsonage v Ku-ring-gai Mr Stauton notes: "In the particular circumstances of this case, the dwelling at 138 Burton Street is located in a B4 zone with a 12m height limit across a narrow laneway to the south and west of land with an 18m height limit and 3:1 FSR. Similarly, the RFB at 44 Hardie Street is located in the same B4 zone as the site with an 18m height limit and 3:1 FSR but immediately to its south. Additionally 44 Hardie Street is built to its northern and western boundaries. In these particular circumstances the comments of Roseth SC above are apt and the Court would accept that both properties and in particular 44 Hardie Street are vulnerable to being overshadowed." Applicant's written submissions 23 March 2019, p. 3, 14 1. Mr Stauton's submission is supported by the evidence of Mr Darroch and Jon Johannsen. In the expert report of the town planners they state: "… the subject site and its neighbours are characterised by restricted solar access by virtue of the height of the buildings located to the north and west. This is not an unusual situation in the City of Sydney, where heights and densities commonly cause certain site to have compromised solar access" (Emphasis added) (Exhibit 4). 2. Mr Staunton submits that whilst the applicant accepts that the proposed development will detrimentally impact the solar access of adjoining development, that impact is acceptable in the circumstances of the case. His reasoning is as follows: * The overshadowing impact is relevant only to 138 Burton Street and 44 Hardie Street and these properties are vulnerable to impact having regard to their location, the underlying zoning and the applicable development standards. Notably, a number of lower level units in 44 Hardie Street do not receive any solar access to their living rooms and are particularly vulnerable having been built to the boundary. * The series of shadow diagrams prepared by the applicant demonstrate the comparative solar impact on 138 Burton Street and 44 Hardie Street from the existing building, and then progressively each additional level to the proposed height. To achieve the level of solar access sought by the Council would require development to be constrained to either: one additional storey on the existing building, or the form of development proposed by the respondent's experts (refer paragraph [74]). Mr Staunton argues that this level of development "is well below the reasonable development potential of the site evidenced by the development standards for the land under SLEP" (Emphasis added). (Applicant's written submissions 23 March 2020, para 43). * The form of development proposed by the Respondent's experts represents a 44% reduction in FSR, a reduction in height by 6m and a decrease from eight units to 4. Mr Staunton argues that such an approach to the redevelopment of the site is inconsistent with the aims of LEP 2012 and the object of the EPA Act to promote orderly and economic development (Applicant's written submissions 23 March 2020, para 43). * Solar access is retained to the first and second level unit balconies. Solar access to the top floor balcony is retained by the development having a maximum height below the 18m standard and the building design. * Solar access to the communal open space for 44 Hardie Street, located on the roof, is unaffected. 1. Mr Staunton submits that the overshadowing impacts are acceptable on the facts of the case and do not warrant the refusal of the application. 2. Ms Reid argues that Section 3B-2 of the ADG is relevant to the assessment of the application, along with the provisions of DCP 2012, noting it is referenced by the planning and urban design experts. The objective of the control is: Overshadowing of neighbouring properties is minimised during mid-winter (refer paragraph [21]). 3. Ms Reid submits that the overshadowing diagrams prepared by the Applicant which compare the overshadowing impact of the existing building with redevelopment options either an additional one or two storeys "assists the Court in understanding that if the bulk of the proposed building were reduced to address Council's heritage concerns, it would have the effect of also reducing (but not eliminating) the otherwise devastating impact on solar access to 44 Hardie Street and 138 Burton Street" (Emphasis added). (Respondent's written submissions 2 April 2020, para 9). 4. Ms Reid argues the position put that the site is unlikely to be redeveloped if the height and FSR able to be achieved is that sought by the Council's experts is simplistic on the following grounds: * The site is zoned B4 Mixed Use and a wide range of uses are permissible. * The Applicant elevates the Council's illustration of an acceptable building envelope to a redesign of the proposal. * The choice by the Applicant of a mixed use development is inherently inefficient if the intent is to maximise floor space. 1. In response to the experts evidence on the solar impact of the proposed development Ms Reid submits that: 138 Burton Street * The Applicant's experts artificially discount areas of private open space in their assessment. Those discounts are contrary to the planning principle in The Benevolent Society v Waverley Council [2010] NSWLEC 1082 ('Benevolent Society v Waverley') which at [144] consolidated and revised the Court's planning principle on solar access. * That on the evidence of Council's experts the "proposal results in a devastating reduction in solar access to the private open space of 138 Burton Street" (Emphasis added) (Respondent's written submissions 2 April 2020, para 14). Whereas the building envelope suggested by Council's experts will have an impact, but an impact that Ms Reid submits is reasonable in the context of the density of the surrounding development. 44 Hardie Street * The building is a contributory item and is thus unlikely to be substantially changed. The northern sunroom windows, in the one bedroom apartments, are located facing Hayden Place. * The units are vulnerable to impact due to their location. However, an assessment of the overshadowing impact must be made not just against the height standard, but also acknowledging that the building generating the impact is a contributory building and the impact is on a contributory building which has little ability to change. * When assessed against the Court's planning principle in Davies v Penrith City Council [2013] NSWLEC 1141 at [121] the Court would be satisfied that: "(a) The impact on solar access to the north facing window in a small, otherwise dark one bedroom unit will be devastating. (b) The reasonableness of the impact must be measured against all of the controls in the LEP and DCP, including the impact on the heritage conservation area, and not just the height control in isolation. (c) The apartments in 44 Hardie Street are vulnerable to impact. The Council accepts that there will be an impact on the ground floor which could not be reasonably ameliorated. However, when undertaking the fine balance of assessment, the impact on units 7 and 11 could be better ameliorated with a more nuanced design. (d) The impact arises out of a design that seeks to maximise the floor space of the Land without due regard for the impacts on the contributory item and the conservation area. A better design, and perhaps reconsideration of the use of the building, could achieve a reasonable floor space while reducing (but not eliminating) impact on units 7 and 11 of 44 Hardie Street." (Respondent's written submissions 2 April 2020, par. 18) 1. Further, Ms Reid argues that the Applicant misconstrues the provisions of DCP 2012 and seeks to offset the solar impact on private open space with access to communal open space. She concludes that on the evidence the detrimental impacts to solar access for adjoining properties warrant refusal of the application. Findings 1. The planning provisions addressing the potential impacts of a proposed development on solar access of neighbouring properties are: 1. 4.2.3.1 (3) of DCP 2012 (refer to paragraph [26]); and 2. Section 3B-2 of the ADG (refer to paragraph [21]). 1. I accept the evidence of Mr Darroch and Mr Johannsen that the form of the control at 4.2.3.1(3) of DCP 2012 is conjunctive. The control requires a development to not create further overshadowing to an adjoining property where that property currently receives less than two hours sunlight to habitable rooms AND less than two hours sunlight to 50% of their private open space. Given the factual circumstances of the units at 44 Hardie Street this provision does not strictly apply as the units do not have private open space. 2. Further, I accept the evidence of Mr Darroch and Mr Johannsen that there is a flaw in the solar access analysis of 138 Burton Street undertaken by the Council's experts. I accept that they fail to look holistically at the existing solar amenity of the property. I am satisfied that the evidence established that the property currently achieves more than two hours solar access to habitable rooms and two hours solar access to their private open space when the whole of the property is considered. On the evidence of Mr Darroch and Mr Johannsen at paragraph [75] and the Applicant's solar analysis (DA 624C) I accept they will continue to do so. As such for 138 Burton Street the control at 4.2.3.1 (3) of DCP 2012 is met. 3. The objective of the relevant provision within the ADG seeks: "Overshadowing of neighbouring properties to be minimise" (emphasis added). It provides relevant design guidance, reproduced at paragraph [22], that requires; consideration of: neighbours solar access to living rooms, balconies and private open space; particular care where solar access is currently not compliant and seeks that it not be reduced by more than 20%; and identifies that side setbacks may need to be increased to reduce impact on solar access. 4. In considering the acceptability of the overshadowing impacts, both on merit and in the context of the ADG provisions, I have given weight to the overshadowing diagrams prepared by the Applicant, which include modelling of the shadows of the existing building and each subsequent level (Exhibit 2). 5. I accept it cannot be assumed that development will achieve the maximum building envelope: see Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2018] NSWLEC 191 at [57] and [62]. However, it is not unreasonable in considering the impacts arising from a development for significant weight to be given to the site zoning, permissible uses and the development standards in determining the acceptability of those impacts. These parameters in the LEP designate the type, nature and intensity of uses intended for the site at a strategic level: see BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [117]. 6. I accept Mr Staunton's submission that the findings of Parsonage v Ku-ring-gai are relevant to the current proceedings. 7. It should be noted that the planning principle detailed in Parsonage v Ku-ring-gai, partly extracted in the Applicant's written submissions, was revisited by the Court in Benevolent Society v Waverley. The Court's consolidated and revised planning principle on solar access is now in the following terms: "Where guidelines dealing with the hours of sunlight on a window or open space leave open the question what proportion of the window or open space should be in sunlight, and whether the sunlight should be measured at floor, table or a standing person's eye level, assessment of the adequacy of solar access should be undertaken with the following principles in mind, where relevant: - The ease with which sunlight access can be protected is inversely proportional to the density of development. At low densities, there is a reasonable expectation that a dwelling and some of its open space will retain its existing sunlight. (However, even at low densities there are sites and buildings that are highly vulnerable to being overshadowed.) At higher densities sunlight is harder to protect and the claim to retain it is not as strong. - The amount of sunlight lost should be taken into account, as well as the amount of sunlight retained. - Overshadowing arising out of poor design is not acceptable, even if it satisfies numerical guidelines. The poor quality of a proposal's design may be demonstrated by a more sensitive design that achieves the same amenity without substantial additional cost, while reducing the impact on neighbours. - For a window, door or glass wall to be assessed as being in sunlight, regard should be had not only to the proportion of the glazed area in sunlight but also to the size of the glazed area itself. Strict mathematical formulae are not always an appropriate measure of solar amenity. For larger glazed areas, adequate solar amenity in the built space behind may be achieved by the sun falling on comparatively modest portions of the glazed area. - For private open space to be assessed as receiving adequate sunlight, regard should be had of the size of the open space and the amount of it receiving sunlight. Self-evidently, the smaller the open space, the greater the proportion of it requiring sunlight for it to have adequate solar amenity. A useable strip adjoining the living area in sunlight usually provides better solar amenity, depending on the size of the space. The amount of sunlight on private open space should ordinarily be measured at ground level but regard should be had to the size of the space as, in a smaller private open space, sunlight falling on seated residents may be adequate. - Overshadowing by fences, roof overhangs and changes in level should be taken into consideration. Overshadowing by vegetation should be ignored, except that vegetation may be taken into account in a qualitative way, in particular dense hedges that appear like a solid fence. - In areas undergoing change, the impact on what is likely to be built on adjoining sites should be considered as well as the existing development." 1. Further, the relevant planning principle for the assessing amenity impact on neighbouring properties is found in Davies v Penrith City Council [2013] NSWLEC 1141 is relevant: "Criteria for assessing impact on neighbouring properties The following questions are relevant to the assessment of impacts on neighbouring properties: • How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained? • How reasonable is the proposal causing the impact? • How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? • Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours? • Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?" 1. In my assessment both planning principles, Davies v Penrith City Council [2013] NSWLEC 1141 and Parsonage v Ku-ring-gai pose the following as components of a determination of the reasonableness of a solar impact: * the vulnerability of the affected property due to its location, orientation and the surrounding density of development; * the loss of solar access should be considered in the context of the quantum maintained or currently received; and * the acceptability of impact will be influenced by whether it arises from poor design, or an exceedance of the controls. 1. I am satisfied that the impacts that arise from the development for 138 Burton Street are reasonable. My reasoning is: 1. The impact to solar access to the dwelling via the habitable windows would arise if an additional storey on the existing building was proposed. The subject site is clearly zoned for an increase in height and density. I accept Mr Staunton's submission that such a form of development (a total of three storeys: one plus the existing building) is well below the reasonable development potential of the site evidenced by the development standards for the land under LEP 2012. 2. 138 Burton Street will retain solar access to habitable rooms and private open space of two hours, consistent with the planning controls. 3. I accept the evidence of Mr Darroch and Mr Johannsen, at paragraph [76 that the proposed development is a storey lower than the control and has been stepped back on the east to reduce solar impact to adjoining properties. 1. In relation to the units at 44 Hardie Street I accept the evidence and submissions that the residential flat building, and units 3, 7 and 11 in particular, are vulnerable to detrimental solar impacts due to the buildings orientation and lack of setbacks. Further the layouts of individual units within the building compound this vulnerability due to limited window provision in the building façade (detailed in DA 610). That vulnerability is furthered by the provisions of LEP 2012 which provide for a future increase in density to the north of the existing building. 2. The planning experts both conclude that the relevant units in 44 Hardie Street, Unit 3, 7 and 11 do not currently receive two hours solar access to their living rooms, balconies or private open space. These units gain solar access to their living rooms via south facing windows into the light well. The affected windows fronting Hayden Place (to the north) is to a room variously used as a kitchen, study or kitchen. 3. For Unit 3, the current circumstance is that their northern window receives no direct sunlight between 9am – 3pm on June 21. This is unchanged by the proposal. 4. For Unit 7, complete loss of solar access to their northern window would occur if the existing building was extended by one storey, an impact that also arises with the proposed development. Currently this unit has two hours sunlight to approximately half its windows between 9am – 3pm on June 21. I accept the evidence of Ms Pressick and Ms Douglas that the apartment southern window would be in self shadow. 5. For Unit 11, complete loss of solar access to their northern window would occur if the existing building was extended by two stories, an impact which also arises with the proposed development. Currently this unit has sunlight to its northern windows between 9am – 1pm on June 21. Their southern living room window would also be in self shadow. 6. The upper floor unit retains three hours solar access to their northern window. 7. Whilst not private open space, I note that all units in 44 Hardie Street have access to a communal roof top terrace that will retain solar access. 8. Ms Pressick argues that an alternative scenario for the redevelopment of the site is warranted in reflection of both the solar impacts of the proposed development and in response to the design excellence provisions in LEP 2012 (refer to paragraph [73]). It is her evidence that this approach to the site, being at a height of the existing building fronting Hardie Street and a storey above the existing building at the rear, would retain existing solar access to Unit 3, 7 and 11, 44 Hardie Street. This conclusion is contrary to the solar analysis prepared by the applicant, and summarised above, which indicates a complete loss of solar access to Units 7 if the existing building is extended by one level. 9. I am not persuaded on the evidence that the solar impact to the unit 7 and 11, 44 Hardie Street arises from poor design. I accept the evidence of Mr Darroch and Mr Johannsen, at paragraph [70] that the proposed development is a storey lower than the control and has been stepped back on the east to reduce solar impact to adjoining properties. 10. Further, I accept the submission of Mr Staunton that it is appropriate for weight to be given to the site zoning, permissible uses and the development standards in determining the acceptability of those impacts. 11. The proposed development is comfortably compliant with the development standards applicable in LEP 2012 (it is up to four metres below the height limit). The fact that the proposed development is within the bounds of the building envelope designated by the Council's strategic planning is a consideration in determining how reasonable the impacts are. 12. I am satisfied that the solar impacts arising from the development on 44 Hardie Street are reasonable when considered in the context of the existing solar access, the location of the site, the density of the locality and the development standards in LEP 2012. Design Excellence Findings 1. Clause 6.21 of the LEP 2012 invites delivery of the highest standard of architectural, urban and landscape design for external alterations to an existing building on land to which the plan applies. Moreover, subclause (3) provides that I must not grant consent to development unless I am of the opinion that the proposed development exhibits design excellence. Subclause (4) states that when considering whether development to which the clause applies exhibits design excellence, I must have regard to certain matters. Subclause (4) (d) (v) requires me to consider "the bulk, massing and modulation of the buildings", and (vii) requires that I consider the environmental impacts, such as "sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity" (Emphasis added). 2. In the Amended Statement of Facts and Contentions the Respondent argues that the precondition at cl 6.21(4) of LEP 2012 is not met on the following grounds: "a) The proposal does not demonstrate a high standard of architectural design, and detailing appropriate to the building type and location as required by Clause 6.21 of 15 the LEP. In particular, the proportions and detailing of the Hardie Street façade relate poorly to the retained 'base' building. b) Furthermore, the design does not adequately address the heritage issues at the site, does not consider the overshadowing impact of the bulk, massing, and modulation of the building, and does not address environmental impacts such as visual privacy. … d) The proposal fails to satisfy Principle 1 of Schedule 1 of SEPP 65 which requires good design to respond and contribute to its context. e) The proposal fails to satisfy Principle 2 of Schedule 1 of SEPP 65 in that the development does not provide adequate internal amenity. f) It is contended that pursuant to LEP Clause 6.21(3) Development Consent must not be granted as the proposed development fails to exhibit design excellence." (Exhibit 1) 1. Ms Reid confirmed in opening that particular (e) is resolved and the Council no longer presses a concern in relation to visual privacy. 2. At [58]–[62] I have given consideration to the evidence of the heritage experts and found that the proposed development will not have an impact on the significance of the HCA. Further, at [61] I conclude that the proportions and design of the proposed addition is acceptable. I am satisfied that the proposed development will achieve contextual fit in the HCA and the streetscape as demonstrated in DA 401 in Exhibit D. I am satisfied that the development will respond to and contribute to its context. 3. At [92]–[114] I have concluded that the overshadowing impacts to the adjoining properties are acceptable. I am satisfied that the same conclusion is warranted when considered in the context of cl 6.21 of LEP 2012. 4. Having considered the provision, the evidence of the experts and the submissions of the parties I am satisfied that the proposed development exhibits design excellence and that the precondition is met. Outcome of the appeal 1. In determining this matter I have carefully considered the evidence and objections, the submissions and the documents tendered in the proceedings. Having carefully considered the experts report and the public submissions, I am satisfied in my evaluation under s 4.15 of the EPA Act that the amended proposal warrants approval. 2. In undertaking the assessment of the application I have considered the effect of the proposed development on the heritage significance of the HCA in accordance with cl 5.10(4) of LEP 2012. I am satisfied that the proposed development will not have a detrimental impact on the significance of the HCA. Further, I am satisfied that the proposed development exhibits design excellence and that the precondition at cl 6.21(4) of LEP 2012 is met. 3. I am satisfied that the residents' concerns raised in objection to the application have been adequately considered in the expert evidence or through the imposition of conditions of consent. Orders: 1. The orders of the Court are: 1. The appeal is upheld. 2. Consent is granted to Development Application No. D/2017/1606 for alterations and additions to the existing building for the construction of a part 4, part 5 and part 6 storey mixed use development containing basement storage and services; ground floor retail space and seven residential apartments at 42 Hardie Street, Darlinghurst (Lot 1, DP 997066, subject to conditions in Annexure A. 3. The exhibits are returned with the exception of A, B, D and 1. ………………….. D M Dickson Commissioner of the Court Annexure A (162 KB) ********** Amendments 21 May 2020 - Administrative error. Amendment and correction made to the representation details. 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: 21 May 2020