By Aaron Gadiel, Partner

The Land and Environment Court has approved an apartment development which (according to the local council) had no apartments that met the solar access design criteria in the Apartment Design Guide (ADG).

The decision is significant.  It affirms the ADG is a performance-based document where:

• the focus is on the achievement of qualitative objectives; and
• slavish compliance with numerical design criteria is not the only pathway to approval.

In Construction Development Management Services Pty Ltd v City of Sydney [2023] NSWLEC 1620, the Court was dealing a merit appeal for a development application for a residential flat building.  The development site is on the corner of Erskine Street and Kent Street in the CBD of Sydney.  The 17-storey proposal included eight residential apartments, most of which were multi-level.  Mills Oakley represented the developer in the proceedings.

The City of Sydney had argued that the application should be refused because the proposal did not achieve the solar access specified in an ADG design criterion.  The design criterion said that 70 per cent of apartments in a building ‘must’ receive a minimum of two hours of direct sunlight between 9am and 3pm at mid-winter.  The City of Sydney said that the proposal had a compliance level of 0 per cent.  That is, it said that none of the apartments received the level of sunlight envisaged by the design criterion.

The evidence before the Court showed that the apartments received direct sunlight to living rooms for 80 to 115 minutes between 9am and 3pm at mid-winter.  Direct sunlight to private open space ranged from 40 minutes to 125 minutes at mid-winter during the same time period.

The developer argued that the City of Sydney was misdirected in its arguments.  The focus of the ADG is on achieving certain qualitative objectives.  The design criteria are merely one way in which those objectives can be achieved.

In this case, the relevant objective was 4A-1: ‘To optimise the number of apartments receiving sunlight to habitable rooms, primary windows and private open space’.

The developer argued that by proposing dual aspect, multi-level apartments, 100 per cent of the apartments receive sunlight to those areas identified in the objective as deserving of sunlight. This exceeds the design criteria in two respects:

• Firstly, sunlight is received to every apartment. No apartment is deprived of sunlight, as would be acceptable according to the design criteria.
• Secondly, sunlight is received in rooms beyond the living rooms and private open spaces identified in the design criteria. This includes rooms such as bedrooms, consistent with the more expansive reference to spaces found in the objective.

The Court accepted the applicant’s argument that there was, in this case, a 100 per cent compliance with objective 4A-1.  The Court’s reasoning was as follows:

• While the development does not receive the sunlight required by the design criterion, the criterion is not, of itself, a development standard, but merely ‘one means of achieving the objective at 4A-1 of the ADG’.
• The objective seeks that sunlight to be optimised to habitable rooms, primary windows and private open space. The architect had optimised the direct sunlight to habitable rooms in each apartment by deploying three out of four non-exhaustive design features found in the design guidance —including dual aspect apartments, shallow apartment layouts and multi-level apartments. This ensured the receipt of sunlight to more than the living areas and private open space. Sunlight had been optimised to both the number of apartments and to areas within each apartment.
• To the extent that the design criterion was not achieved, it was not a consequence of poor design choices. The development site was within a highly developed area of the Sydney CBD, in which surrounding development overshadows the site. It is this urban form that demands a higher degree of architectural skill than might otherwise be the case — to optimise sunlight to apartments that are overshadowed by commercial buildings to the east, north east and north of the site.
• The architectural skill lies firstly in the apartment layout. The proposed layout arranged habitable rooms, such as living and dining rooms, to the north and east of each floorplate, while also arranging bedrooms and ensuites to the same north and east orientations on the floor above (other than for one single level apartment). Stairs, lifts and service areas are arranged to the south and south west of the floorplate.
• The architectural skill also lies in the design of openings to the perimeter of apartments that are not only dual aspect, but are also characterised by large areas of glazing (to admit daylight as well as sunlight).

The Court concluded that the development optimised the number of apartments receiving sunlight to habitable rooms, primary windows and the private open space:

• consistent with objective 4A-1 of the AGD; and
• complemented by levels of daylight admitted by the generous size of openings presenting to the north.

The Court’s decision re-affirms that the ADG is actually a flexible document that is capable of promoting good design in a wide variety of circumstances, even where design criteria cannot be met.

The City of Sydney has, for many years, resisted residential apartment development in Sydney’s CBD on the basis that the solar access outcomes for such development would be unacceptable.

This decision makes it clear that a failure to meet the solar access design criterion does not necessarily mean a development cannot be approved.  The key is to use skilful design approaches to achieve the broad, non-numeric, objective that the ADG sets for solar access.