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NSW LEC holds that developments do not have to strictly follow ADG criteria for amount of sunlight received, as long as sunlight is “optimised”

This article examines the NSW Land and Environment Court’s consideration of solar access in the context of residential development in the Sydney CBD.

Published on 24 October, 2024.

The NSW Land and Environment Court’s recent decision in Construction Development Management Services Pty Ltd v City of Sydney [2023] NSWLEC 1620 held that the specific criteria relating to sunlight in the Apartment Design Guide (ADG) does not have to be strictly complied with for residential developments, though optimising sunlight is still a requirement.

This case concerned a development application lodged by the Applicant with the City of Sydney for the construction of a residential apartment building in the Sydney CBD.

Issues

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65) requires a consent authority to take the ADG and its objectives into consideration, including the objective of optimising the number of apartments receiving sunlight to habitable rooms, primary windows and private open space.

For the Sydney Metropolitan area, one of the design criteria under this objective is that “living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 2 hours direct sunlight between 9 am and 3 pm at mid-winter”.

The main issues related to whether consent could be granted for a residential apartment development which did not strictly adhere to the ADG and whether the proposed development “optimised” sunlight.

Decision

Horton C determined that the design criteria referred to above “is not, of itself, a development standard but one means of achieving the objective at 4A-1 of the ADG“ which is to optimise sunlight.

The Applicant did not have the option of adhering to the design criteria of 70% of apartments receiving sunlight due to the site being overshadowed by neighbouring development in the CBD. Previous cases in which inadequate solar access was held to be grounds for refusal were distinguished on the basis that the Applicants in those cases chose not to comply with criteria, while the Applicant in this case could not achieve compliance despite attempts to do so.

Horton C found that the Applicant’s development application optimised direct sunlight by incorporating ADG design features, and so determined to grant consent for the development. In doing so, the Commissioner held that adequate regard had been given to the ADG and so clause 30(2)(b) of SEPP 65 had been satisfied.

The apartment layout and the design of openings to the perimeter of apartments to allow for sunlight were considered to be ways to achieve this objective.

Implications

This case is authority for the proposition that the ‘requirements’ in the ADG do not have to be strictly complied with if it is not practically possible to do so. However, in such circumstances, design choices to optimise sunlight should be implemented.

Jennifer Hughes, Timothy Allen, Zara Horton

This material has been produced by Beatty Hughes & Associates for the purposes of providing general information and does not constitute legal advice.