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Duerr & Dabic v Adelaide City Council & Hamilton [2004] SAERDC 109 (17 December 2004)

Last Updated: 21 December 2004

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated.

DUERR & DABIC v ADELAIDE CITY COUNCIL & HAMILTON

Judgment of Commissioner Hodgson

17 December 2004

LOCAL GOVERNMENT - TOWN PLANNING

Development application to construct part three-storey dwelling on vacant land refused – appeal – R21 Whitmore East Precinct – overshadowing of north-facing windows of adjoining dwelling – extent of compliance with solar access provisions of Development Plan – proposal able to be reduced in height without significant compromise to reasonable development expectations on subject land – proposal acceptable only if reduced in height to prevent overshadowing of windows in question – proposal amended to reduce overall height by 1.2m – Provisional Development Plan Consent granted to amended proposal, subject to conditions.

Development Act 1993, referred to.

Fornarino v Corporation of the City of Adelaide [2000] SAERDC 40, considered.

DUERR & DABIC v ADELAIDE CITY COUNCIL & HAMILTON
[2004] SAERDC 109

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This is an appeal against the decision of the Adelaide City Council ("the Council"), made under the Development Act 1993, to refuse an application by the Appellants to construct a three-storey dwelling on vacant land at 3 Draper Mews, Adelaide. The Council’s reasons for refusal were as follows:

1. The proposal conflicts with R21 Precinct, Built Form Principle 3, as it does not acknowledge, by careful design, the prevailing siting of existing development.

2. The proposal conflicts with Council Wide P. 26 – Micro-Climate and Daylight as it will significantly obstruct solar access to the adjoining dwelling’s upper level north facing windows.

3. The proposal conflicts with R21 Precinct Principle 12 as it is not sensitive to existing adjoining residential buildings.

2 Following lodgement of the appeal, Peter and Gayle Hamilton, who reside to the immediate south of the subject land at 1 Draper Mews, were joined as parties to the appeal.
3 In the course of the hearing evidence was given by three qualified and experienced architects, Mr E Prelgauskas, Mr J Maitland and Mr J Hales, two qualified and experienced planning consultants, Mr G Vincent and Mr S Hill, by one of the Appellants, Mr R Duerr, and by Mr P Hamilton, one of the Second Respondents. The extent of the evidence led belies the essentially simple nature of the dispute in this matter: the Appellants’ propose the construction of a dwelling which will, at certain times, prevent sunlight being received in the only three north-facing windows in the Second Respondent’s dwelling. The Appellants argue that their proposal satisfies Council Wide Principle 27, and therefore that Principle 26 is also satisfied. The Council and the Second Respondents argue that, with a modest reduction in height, and without any change to the layout and floor area of the Appellants’ dwelling, any overshadowing of the windows in question could be eliminated. Because the Appellants have chosen not to take this course, they do not satisfy Council Wide Principle 26.
4 The two principles referred to are in the following terms:

Principle 26: MICRO-CLIMATE AND DAYLIGHT

Development should be designed and sited to minimise detrimental micro-climatic and solar access impact on adjacent land or buildings, including effects of patterns of wind, temperature, daylight, sunlight, glare and shadow.

Building design should not result in wind patterns which may cause discomfort and danger at street level. An expert assessment may be required of applicants to demonstrate that a proposed design effectively avoids such conditions.

The use of glazing on building facades should not result in glare which produces discomfort or danger to pedestrians, occupants of adjacent buildings and users of vehicles.

Residential development should be designed and sited to ensure the provision of sufficient daylight to habitable rooms and to private open space.

Principle 27: MINIMUM SUNLIGHT ACCESS

Development within, or adjoining, the Residential District should maintain at least two hours of direct sunlight between 9.00am and 3.00pm solar time on 22 June to either the northern façade or at least one ground floor habitable room window (excluding bathroom, toilet, laundry or storage room windows), of any neighbouring residential property, and to at least 20 percent of that property’s private landscaped open space. Where the existing period of direct sunlight is less than this (ie two hours per day, or 20 percent open space), development should not further reduce it.

5 Mr E Prelgauskas, an architect with particular expertise in energy efficiency in buildings, gave evidence in the Appellants’ case. That evidence was that 1 Draper Mews received a relatively small percentage of its direct sunlight through the north-facing windows in question, those windows being small by comparison with the amount of glazing on the eastern and southern sides of that dwelling. Furthermore, those windows contributed in only a small way to the total energy efficiency of 3 Draper Mews which, while above average, was not high. In Mr Prelgauskas’ view, Principle 26 had to be read in the context of the overall energy efficiency of that dwelling, and not merely in terms of whether the Appellants’ proposal reduced its sunlight access. If the height of 3 Draper Mew was reduced, as suggested by the First and Second Respondents, there would be, in his opinion, some reduction in the energy efficiency of that dwelling, because reducing floor to ceiling heights would reduce the area of north-facing glazing and possibly impair provision of large-diameter ducting for passive air flow. Conversely, there would be only a modest improvement in the energy efficiency of 1 Draper Mews.
6 Mr J Maitland, who gave evidence in the Second Respondent’s case, is an architect with particular expertise in the design of ecologically-sustainable development. His evidence was that overshadowing of 1 Draper Mews’ north-facing windows would "severely restrict the quantum of direct solar gain". 1 Draper Mews had been designed in anticipation of multi-level development to the north, of a comparable height, and the three windows in question were clerestory windows to accommodate such development. The internal layout of that dwelling had been designed around the receipt of direct northern sunlight, which had considerably greater value, in terms of both heating and light, than the indirect light received from south-facing windows. Observing that deprivation of sunlight, especially in winter, had a depressing effect, Mr Maitland was of the view that a range of design options was available for 3 Draper Mews which would not compromise the floor area or energy efficiency of that dwelling, but which would also result in no overshadowing of 1 Draper Mews.
7 Mr J Hales, who also gave evidence in the Second Respondent’s case, was the designer of 1 Draper Mews. His evidence was that the clerestory windows in that dwelling were specifically positioned to allow sunlight into its centre, including a study into which light passed through a cut-out section of wall. Like Mr Maitland, Mr Hales was of the opinion that 3 Draper Mews could be reduced in height so as to maintain full sunlight to all three clerestory windows in 1 Draper Mews, without compromising its overall design. Ceiling heights for two floors were larger than normal, and spaces for services within the ceiling space were excessive. If large ducts were required for passive airflow, this could be accommodated through the use of bulkheads and side feeding.
8 The quantum of overshadowing of 1 Draper Mews was common ground between the parties, a meeting of experts engaged by each having arrived at an agreed analysis of that overshadowing, submitted to the Court in evidence as a Joint Expert Report. That report demonstrates that the overshadowing effect of 3 Draper Mews, on the winter solstice, would be as follows:

Window A (easternmost window)

About 50% overshadowed at 8.00am

Unobstructed from 9.00am – 2.00pm

About 50% overshadowed at 3.00pm

Completely overshadowed from 4.00pm

Window B (centre window)

About 80% overshadowed at 8.00am

Unobstructed from 9.00am to 12.00pm

About 20% overshadowed at 1.00pm

About 90% overshadowed at 2.00pm

Totally overshadowed from 3.00pm

Window C (westernmost window)

About 80% overshadowed at 8.00am
Unobstructed at 9.00am
About 20% overshadowed at 10.00am
About 80% overshadowed at 11.00am
Totally overshadowed from 12.00pm

9 These figures indicate that, of the sunlight potentially available to the three windows between 8.00am and 4.30pm on the winter solstice, approximately 48% would be removed by the subject proposal.
10 Ms Dabic, for the Appellants, submitted that the greatest effect of the proposal would be on the westernmost window, which opened onto a stairway and open gallery area of 1 Draper Mews. Direct sunlight to such an area was of far less importance than sunlight to living areas, which received sunlight primarily from the easternmost window. Furthermore, Ms Dabic submitted, on the evidence of Mr Prelgauskas, the subject proposal provided an average of 4.1 hours of sunlight to the north-facing windows of 1 Draper Mews, a figure significantly in excess of that sought by Council Wide Principle 27. That being the case, the more general provisions of Council Wide Principle 26 should be regarded as being satisfied by compliance with Principle 27.

Assessment

11 If compliance with Council Wide Principle 27 is sufficient to satisfy the solar access requirements of Council Wide Principle 26, arguably there would be no need for solar access references in Principle 26. The Development Plan for the City of Adelaide allows, in some parts of the city, quite dense residential development, on site areas as small as 80m². In some, possibly many instances, realisation of the development potential anticipated by the Development Plan will necessarily result in significant overshadowing. On my reading of the Plan, Principle 27 serves to set a minimum standard for sunlight access in those circumstances. Where, however, the opportunity exists to realise that development potential without substantial detriment to adjoining buildings, the requirement of Principle 26 that development "minimise....detrimental solar access impact on adjacent land or buildings", in my assessment, imposes an obligation on applicants to design their proposal in such a way as to have the least possible impact on, inter alia, solar access of adjacent land and buildings. Principle 26 does not seek to define that impact as one which should be measured in terms of net impact on energy efficiency. Direct sunlight, even where it has little overall impact on energy efficiency, provides qualitative benefits to dwelling occupants which cannot lightly be set aside simply on the basis of energy efficiency calculations.
12 I accept the evidence of Mr Prelgauskas that the insulating effect of an abutting dwelling to the north of 1 Draper Mews may well produce a net benefit to the latter in terms of energy efficiency. However, energy efficiency is not the sole measure of the acceptability or otherwise of overshadowing. Although Mr Prelgauskas did not design 3 Draper Mews, his assessment of the energy efficiency consequences of a reduction in the height of the Appellants’ proposed dwelling appears to be premised on the notion that there would be no corresponding amendments to other aspects of its design. I accept that, were that the case, there would be a reduction in the total area of north-facing glazing on the ground floor, for example. However, the loss of window height at that level could be compensated for by an increase in window width at that level, or by the incorporation of larger window areas at upper levels.
13 I accept the evidence of Mr Maitland and Mr Hales that there are options for designing a dwelling at 3 Draper Mews which could produce a comparable layout and floor area without adverse impacts on the energy efficiency levels inhering in the current design, and with the added benefit of avoiding overshadowing impacts on 1 Draper Mews. It would seem, therefore, that there is no significant prejudice to the reasonable development expectations of the Appellants if they are required to satisfy Principle 26.
14 I am reinforced in that view by a consideration of the development potential of the land at 3 Draper Mews. In common with most other allotments in the locality, the land at 3 Draper Mews is a narrow allotment, 6.5m wide, having an area of 188m². It is located within the R21 Whitmore East Precinct, within which minimum site areas, as such, are not prescribed. Zone Principle 9 sets a maximum building height in the Precinct of 12m or 4 building levels, with three exceptions, two of which are irrelevant to the subject land. The other exception is "development of infill sites on minor streets", which "should not exceed three storeys where adjacent residential amenity is likely to be affected". Principle 9 refers to a height of 12m corresponding with "4 building levels", and a height of 15m to "5 building levels". Somewhat curiously, it then refers to "storeys" in relation to those parts of the zone in which lower building heights are sought. Notwithstanding that inconsistency, it seems clear that a "building level" or "storey" is envisaged to have a height of around 3.0m. That being the case, it is clear that the finished height of the Appellants’ dwelling is considerably greater than the height which could reasonably be regarded as corresponding to three storeys. A schedule to the Development Plan for the Adelaide City Council defines "maximum building height" as "the maximum vertical distance between the median natural or finished ground level at any point or any part of a building and the ceiling height of the top most building level". Based on that definition and on the agreed measurements contained in the Joint Experts’ Report, tendered in evidence, the height of the Appellants’ proposed dwelling is 11.5m. The subject proposal seems to fall squarely within the category of an "infill development on a minor street" as referred to in Zone Principle 9, and, on the evidence, is likely to detrimentally affect the amenity of 1 Draper Mews. On the basis of the above assessment, a maximum building height of three storeys, or around 9.0m, is required on the subject land. The proposed dwelling is well in excess of that height.
15 The evidence of Mr Hill was that, as the buildings on either side of the subject land, in common with the great majority of buildings in the locality, were two-storey, it was necessary for the Appellants to demonstrate that their proposal would not adversely affect those dwellings, having regard to Zone Principles 11 and 12, which are in the following terms:

Principle 11: Development in minor streets should be of a lower scale and intensity appropriate to the desired residential activity and to the public spaces on to which it faces.

Principle 12: The scale of development should be sensitive to existing cohesive groups of adjoining residential buildings.

16 Similar views were expressed by Mr Vincent.
17 Having regard to all the above, I have concluded that the Appellants could reasonably expect to achieve a maximum building height of 9.0m, or thereabouts, on the subject land. If they are to exceed that height, the combined effect of Council Wide Principle 26 and Zone Principles 11 and 12 is to require them to ensure that any additional height minimises any adverse solar access impact on adjoining dwellings. Number 5 Draper Mews, to the immediate north of the subject land, has a maximum height estimated by Mr Hill as 6.9m, and it was not suggested that there was any adverse effect on that dwelling. On the basis of the Joint Experts’ Report, however, there will clearly be significant overshadowing of north-facing clerestory windows in the dwelling at 1 Draper Mews, which overshadowing could be avoided without detriment to the realisation of reasonable development expectations on the land at 3 Draper Mews, and indeed, with little detriment to the overall design, floor space and layout of the dwelling proposed by the Appellants.
18 In reaching this conclusion I am mindful of the many authorities cited by Ms Dabic in support of her contention that satisfaction of the quantitative standard set out in Council Wide Principle 27 sufficed to also satisfy Council Wide Principle 26.
19 In my view, the most that can be drawn from those authorities, each of which deals with sunlight access issues in the context of differing sunlight access provisions in the Development Plan, is that those provisions need to be applied within a framework created by other relevant Development Plan provisions, and the particular circumstances of the locality.
20 One of the authorities cited, Fornarino v Corporation of the City of Adelaide [2000] SAERDC 40, considered the application of then Council Wide Principle 39, which was in identical terms to the present Council Wide Principle 26, and concluded that, while the proposal under consideration in that matter would cause some reduction in direct sunlight access to an adjoining property, existing structures on that property already caused some reduction in the earlier part of the day, and the reduction in direct sunlight access caused by the proposal, while "not inconsequential", was "not so severe as to render the proposed development inconsistent with a fair and reasonable application of Principle 39". In reaching this conclusion, the Court took into account evidence that the proposal complied with what were then "Sunlight Access Guidelines" used by the Council, which guidelines appear to have now been incorporated into the Development Plan as Council Wide Principle 27.
21 There is nothing in the above judgment which would indicate whether the realisation of reasonable development expectations on the land concerned, having regard to the relevant provisions of the Development Plan, could occur without impairing the solar access of the adjoining dwelling, and I note, in that regard, that no expert evidence was called by the Council in support of the decision giving rise to the proceedings in question. That being the case, I find the Court’s decision in Fornarino of little assistance in these proceedings. However, to the extent that the reasoning in that decision could be interpreted as support for the proposition that satisfaction of Council Wide Principle 27 also serves to satisfy the solar access requirements of Council Wide Principle 26, I would disagree with that reasoning. Satisfaction of Council Wide Principle 27 does not, on my reading of the Development Plan, provide a basis upon which to set aside the stipulation in Council Wide Principle 26, that development minimise, inter alia, detrimental solar access impact on adjacent buildings, where the opportunity exists to do so without significant detriment to the realisation of reasonable development expectations on land proposed for development.
22 In the light of my conclusions above, I have further concluded that the subject proposal would be acceptable only if it is reduced in height sufficiently to prevent overshadowing of the three north-facing clerestory windows in the dwelling at 1 Draper Mews. The reduction in height required was estimated variously by Mr Maitland and Mr Hales to be between 1.2m and 1.5m.
23 In response to a memorandum in the above terms, the Appellants produced amended proposal plans (Exhibit A12), which plans achieved an overall reduction in the height of the subject proposal of 1.2m. Ms Brookman, for the Second Respondent, tendered by consent a sun shading analysis of the amended proposal, prepared by Mr Maitland, which analysis indicated that, contrary to his earlier evidence, a total reduction in the height of the subject proposal of 1.9m would be required to eliminate all overshadowing of north-facing windows of the Second Respondent’s dwelling. Ms Dabic, for the Appellants, submitted that the remaining overshadowing was minimal, and that a further reduction in the overall height of the proposal would be difficult to achieve without seriously compromising internal living spaces and the scale relationship between the proposed dwelling and its neighbours.
24 I have examined Mr Maitland’s sun shading analysis (Exhibit E) and compared it with that included in his statement of evidence (Exhibit B). There appear to be some inconsistencies between the two. Exhibit B indicates that there is no overshadowing of the north-facing windows of 1 Draper Mews at 9.00am on June 22^nd, whereas Exhibit E shows some shading of the westernmost window, notwithstanding a reduction of 1.2m in the height of 3 Draper Mews. Exhibit E also includes shadowing which, according to Exhibit B, is caused by the eaves of 1 Draper Mews. Regardless of those inconsistencies, it is evident that, on the winter solstice, the proposal, in its amended form, would overshadow no part of the north-facing windows of 1 Draper Mews prior to 9.00am or between 11.00am and 1.00pm, may throw shadow on perhaps 9% of the westernmost window at 9.00am, depending on whether Exhibit B or E is correct, and will throw shadow on perhaps 15% of the westernmost window at 10.00am. At 2.00pm, some 11% of the westernmost window and 4% – 5% of the centre window would be shaded, these figures increasing to 33% by 3.00pm and 74% by 4.00pm. At 3.00pm the easternmost window would be unshaded, but about 63% would be shaded at 4.00pm. Overall, the easternmost window would be unshaded by 3 Draper Mews between 8.00am and 3.00pm, and about 63% shaded at 4.00pm, the centre window unshaded between 8.00am and 1.00pm, about 4% –5% shaded at 2.00pm, about 33% shaded at 3.00pm, and 74% by 4.00pm, and the westernmost window partially shaded at 9.00am (9%), 10.00am (15%), 3.00pm (33%) and 4.00pm (74%). In the terms used by Principle 27, all three windows would receive direct sunlight between 9.00am and 3.00pm.
25 Having regard to all the above, I have concluded that the amended proposal strikes an appropriate balance between the interests of the Appellants and the Second Respondent, and is consistent with a fair and reasonable interpretation of Council Wide Principles 26 and 27. Having so concluded, I have further concluded that the subject proposal, as amended, should be approved, subject to conditions. The parties were agreed on conditions, save for the final height of the subject proposal, and I have adopted those conditions.
26 The order of the Court is that Provisional Development Plan Consent is granted for Development Application No. DA/851/2003, subject to the following conditions:

1. The development granted Provisional Development Plan Consent shall be undertaken in accordance with the proposal plans (Exhibit A2) and details submitted as part of this application, as varied by the amended proposal plans (Exhibit A12), and except where varied by the conditions below.

2. External materials, finishes and colours of the building or structure shall be consistent with the description, details and samples hereby granted Provisional Development Plan Consent. Prior to the issue of Provisional Building Rules Consent, the Applicant shall submit to Council a schedule and samples of the final selection of all external materials and surface finishes to demonstrate consistency with this Provisional Development Plan Consent.

3. Building levels, site levels and back of footpath levels shall be submitted to Council prior to Provisional Building Rules Consent and be to the reasonable satisfaction of Council.

4. Final details of stormwater disposal arrangements shall be submitted to and approved by Council prior to Provisional Building Rules Consent and thereafter shall be maintained to the satisfaction of Council.

5. The connection of stormwater to any part of Council’s underground drainage system shall be in accordance with the attached guidelines.

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2	Following lodgement of the appeal, Peter and Gayle Hamilton, who reside to the immediate south of the subject land at 1 Draper Mews, were joined as parties to the appeal.
3	In the course of the hearing evidence was given by three qualified and experienced architects, Mr E Prelgauskas, Mr J Maitland and Mr J Hales, two qualified and experienced planning consultants, Mr G Vincent and Mr S Hill, by one of the Appellants, Mr R Duerr, and by Mr P Hamilton, one of the Second Respondents. The extent of the evidence led belies the essentially simple nature of the dispute in this matter: the Appellants’ propose the construction of a dwelling which will, at certain times, prevent sunlight being received in the only three north-facing windows in the Second Respondent’s dwelling. The Appellants argue that their proposal satisfies Council Wide Principle 27, and therefore that Principle 26 is also satisfied. The Council and the Second Respondents argue that, with a modest reduction in height, and without any change to the layout and floor area of the Appellants’ dwelling, any overshadowing of the windows in question could be eliminated. Because the Appellants have chosen not to take this course, they do not satisfy Council Wide Principle 26.
4	The two principles referred to are in the following terms:

5	Mr E Prelgauskas, an architect with particular expertise in energy efficiency in buildings, gave evidence in the Appellants’ case. That evidence was that 1 Draper Mews received a relatively small percentage of its direct sunlight through the north-facing windows in question, those windows being small by comparison with the amount of glazing on the eastern and southern sides of that dwelling. Furthermore, those windows contributed in only a small way to the total energy efficiency of 3 Draper Mews which, while above average, was not high. In Mr Prelgauskas’ view, Principle 26 had to be read in the context of the overall energy efficiency of that dwelling, and not merely in terms of whether the Appellants’ proposal reduced its sunlight access. If the height of 3 Draper Mew was reduced, as suggested by the First and Second Respondents, there would be, in his opinion, some reduction in the energy efficiency of that dwelling, because reducing floor to ceiling heights would reduce the area of north-facing glazing and possibly impair provision of large-diameter ducting for passive air flow. Conversely, there would be only a modest improvement in the energy efficiency of 1 Draper Mews.
6	Mr J Maitland, who gave evidence in the Second Respondent’s case, is an architect with particular expertise in the design of ecologically-sustainable development. His evidence was that overshadowing of 1 Draper Mews’ north-facing windows would "severely restrict the quantum of direct solar gain". 1 Draper Mews had been designed in anticipation of multi-level development to the north, of a comparable height, and the three windows in question were clerestory windows to accommodate such development. The internal layout of that dwelling had been designed around the receipt of direct northern sunlight, which had considerably greater value, in terms of both heating and light, than the indirect light received from south-facing windows. Observing that deprivation of sunlight, especially in winter, had a depressing effect, Mr Maitland was of the view that a range of design options was available for 3 Draper Mews which would not compromise the floor area or energy efficiency of that dwelling, but which would also result in no overshadowing of 1 Draper Mews.
7	Mr J Hales, who also gave evidence in the Second Respondent’s case, was the designer of 1 Draper Mews. His evidence was that the clerestory windows in that dwelling were specifically positioned to allow sunlight into its centre, including a study into which light passed through a cut-out section of wall. Like Mr Maitland, Mr Hales was of the opinion that 3 Draper Mews could be reduced in height so as to maintain full sunlight to all three clerestory windows in 1 Draper Mews, without compromising its overall design. Ceiling heights for two floors were larger than normal, and spaces for services within the ceiling space were excessive. If large ducts were required for passive airflow, this could be accommodated through the use of bulkheads and side feeding.
8	The quantum of overshadowing of 1 Draper Mews was common ground between the parties, a meeting of experts engaged by each having arrived at an agreed analysis of that overshadowing, submitted to the Court in evidence as a Joint Expert Report. That report demonstrates that the overshadowing effect of 3 Draper Mews, on the winter solstice, would be as follows:

11	If compliance with Council Wide Principle 27 is sufficient to satisfy the solar access requirements of Council Wide Principle 26, arguably there would be no need for solar access references in Principle 26. The Development Plan for the City of Adelaide allows, in some parts of the city, quite dense residential development, on site areas as small as 80m². In some, possibly many instances, realisation of the development potential anticipated by the Development Plan will necessarily result in significant overshadowing. On my reading of the Plan, Principle 27 serves to set a minimum standard for sunlight access in those circumstances. Where, however, the opportunity exists to realise that development potential without substantial detriment to adjoining buildings, the requirement of Principle 26 that development "minimise....detrimental solar access impact on adjacent land or buildings", in my assessment, imposes an obligation on applicants to design their proposal in such a way as to have the least possible impact on, inter alia, solar access of adjacent land and buildings. Principle 26 does not seek to define that impact as one which should be measured in terms of net impact on energy efficiency. Direct sunlight, even where it has little overall impact on energy efficiency, provides qualitative benefits to dwelling occupants which cannot lightly be set aside simply on the basis of energy efficiency calculations.
12	I accept the evidence of Mr Prelgauskas that the insulating effect of an abutting dwelling to the north of 1 Draper Mews may well produce a net benefit to the latter in terms of energy efficiency. However, energy efficiency is not the sole measure of the acceptability or otherwise of overshadowing. Although Mr Prelgauskas did not design 3 Draper Mews, his assessment of the energy efficiency consequences of a reduction in the height of the Appellants’ proposed dwelling appears to be premised on the notion that there would be no corresponding amendments to other aspects of its design. I accept that, were that the case, there would be a reduction in the total area of north-facing glazing on the ground floor, for example. However, the loss of window height at that level could be compensated for by an increase in window width at that level, or by the incorporation of larger window areas at upper levels.
13	I accept the evidence of Mr Maitland and Mr Hales that there are options for designing a dwelling at 3 Draper Mews which could produce a comparable layout and floor area without adverse impacts on the energy efficiency levels inhering in the current design, and with the added benefit of avoiding overshadowing impacts on 1 Draper Mews. It would seem, therefore, that there is no significant prejudice to the reasonable development expectations of the Appellants if they are required to satisfy Principle 26.
14	I am reinforced in that view by a consideration of the development potential of the land at 3 Draper Mews. In common with most other allotments in the locality, the land at 3 Draper Mews is a narrow allotment, 6.5m wide, having an area of 188m². It is located within the R21 Whitmore East Precinct, within which minimum site areas, as such, are not prescribed. Zone Principle 9 sets a maximum building height in the Precinct of 12m or 4 building levels, with three exceptions, two of which are irrelevant to the subject land. The other exception is "development of infill sites on minor streets", which "should not exceed three storeys where adjacent residential amenity is likely to be affected". Principle 9 refers to a height of 12m corresponding with "4 building levels", and a height of 15m to "5 building levels". Somewhat curiously, it then refers to "storeys" in relation to those parts of the zone in which lower building heights are sought. Notwithstanding that inconsistency, it seems clear that a "building level" or "storey" is envisaged to have a height of around 3.0m. That being the case, it is clear that the finished height of the Appellants’ dwelling is considerably greater than the height which could reasonably be regarded as corresponding to three storeys. A schedule to the Development Plan for the Adelaide City Council defines "maximum building height" as "the maximum vertical distance between the median natural or finished ground level at any point or any part of a building and the ceiling height of the top most building level". Based on that definition and on the agreed measurements contained in the Joint Experts’ Report, tendered in evidence, the height of the Appellants’ proposed dwelling is 11.5m. The subject proposal seems to fall squarely within the category of an "infill development on a minor street" as referred to in Zone Principle 9, and, on the evidence, is likely to detrimentally affect the amenity of 1 Draper Mews. On the basis of the above assessment, a maximum building height of three storeys, or around 9.0m, is required on the subject land. The proposed dwelling is well in excess of that height.
15	The evidence of Mr Hill was that, as the buildings on either side of the subject land, in common with the great majority of buildings in the locality, were two-storey, it was necessary for the Appellants to demonstrate that their proposal would not adversely affect those dwellings, having regard to Zone Principles 11 and 12, which are in the following terms:

16	Similar views were expressed by Mr Vincent.
17	Having regard to all the above, I have concluded that the Appellants could reasonably expect to achieve a maximum building height of 9.0m, or thereabouts, on the subject land. If they are to exceed that height, the combined effect of Council Wide Principle 26 and Zone Principles 11 and 12 is to require them to ensure that any additional height minimises any adverse solar access impact on adjoining dwellings. Number 5 Draper Mews, to the immediate north of the subject land, has a maximum height estimated by Mr Hill as 6.9m, and it was not suggested that there was any adverse effect on that dwelling. On the basis of the Joint Experts’ Report, however, there will clearly be significant overshadowing of north-facing clerestory windows in the dwelling at 1 Draper Mews, which overshadowing could be avoided without detriment to the realisation of reasonable development expectations on the land at 3 Draper Mews, and indeed, with little detriment to the overall design, floor space and layout of the dwelling proposed by the Appellants.
18	In reaching this conclusion I am mindful of the many authorities cited by Ms Dabic in support of her contention that satisfaction of the quantitative standard set out in Council Wide Principle 27 sufficed to also satisfy Council Wide Principle 26.
19	In my view, the most that can be drawn from those authorities, each of which deals with sunlight access issues in the context of differing sunlight access provisions in the Development Plan, is that those provisions need to be applied within a framework created by other relevant Development Plan provisions, and the particular circumstances of the locality.
20	One of the authorities cited, Fornarino v Corporation of the City of Adelaide [2000] SAERDC 40, considered the application of then Council Wide Principle 39, which was in identical terms to the present Council Wide Principle 26, and concluded that, while the proposal under consideration in that matter would cause some reduction in direct sunlight access to an adjoining property, existing structures on that property already caused some reduction in the earlier part of the day, and the reduction in direct sunlight access caused by the proposal, while "not inconsequential", was "not so severe as to render the proposed development inconsistent with a fair and reasonable application of Principle 39". In reaching this conclusion, the Court took into account evidence that the proposal complied with what were then "Sunlight Access Guidelines" used by the Council, which guidelines appear to have now been incorporated into the Development Plan as Council Wide Principle 27.
21	There is nothing in the above judgment which would indicate whether the realisation of reasonable development expectations on the land concerned, having regard to the relevant provisions of the Development Plan, could occur without impairing the solar access of the adjoining dwelling, and I note, in that regard, that no expert evidence was called by the Council in support of the decision giving rise to the proceedings in question. That being the case, I find the Court’s decision in Fornarino of little assistance in these proceedings. However, to the extent that the reasoning in that decision could be interpreted as support for the proposition that satisfaction of Council Wide Principle 27 also serves to satisfy the solar access requirements of Council Wide Principle 26, I would disagree with that reasoning. Satisfaction of Council Wide Principle 27 does not, on my reading of the Development Plan, provide a basis upon which to set aside the stipulation in Council Wide Principle 26, that development minimise, inter alia, detrimental solar access impact on adjacent buildings, where the opportunity exists to do so without significant detriment to the realisation of reasonable development expectations on land proposed for development.
22	In the light of my conclusions above, I have further concluded that the subject proposal would be acceptable only if it is reduced in height sufficiently to prevent overshadowing of the three north-facing clerestory windows in the dwelling at 1 Draper Mews. The reduction in height required was estimated variously by Mr Maitland and Mr Hales to be between 1.2m and 1.5m.
23	In response to a memorandum in the above terms, the Appellants produced amended proposal plans (Exhibit A12), which plans achieved an overall reduction in the height of the subject proposal of 1.2m. Ms Brookman, for the Second Respondent, tendered by consent a sun shading analysis of the amended proposal, prepared by Mr Maitland, which analysis indicated that, contrary to his earlier evidence, a total reduction in the height of the subject proposal of 1.9m would be required to eliminate all overshadowing of north-facing windows of the Second Respondent’s dwelling. Ms Dabic, for the Appellants, submitted that the remaining overshadowing was minimal, and that a further reduction in the overall height of the proposal would be difficult to achieve without seriously compromising internal living spaces and the scale relationship between the proposed dwelling and its neighbours.
24	I have examined Mr Maitland’s sun shading analysis (Exhibit E) and compared it with that included in his statement of evidence (Exhibit B). There appear to be some inconsistencies between the two. Exhibit B indicates that there is no overshadowing of the north-facing windows of 1 Draper Mews at 9.00am on June 22^nd, whereas Exhibit E shows some shading of the westernmost window, notwithstanding a reduction of 1.2m in the height of 3 Draper Mews. Exhibit E also includes shadowing which, according to Exhibit B, is caused by the eaves of 1 Draper Mews. Regardless of those inconsistencies, it is evident that, on the winter solstice, the proposal, in its amended form, would overshadow no part of the north-facing windows of 1 Draper Mews prior to 9.00am or between 11.00am and 1.00pm, may throw shadow on perhaps 9% of the westernmost window at 9.00am, depending on whether Exhibit B or E is correct, and will throw shadow on perhaps 15% of the westernmost window at 10.00am. At 2.00pm, some 11% of the westernmost window and 4% – 5% of the centre window would be shaded, these figures increasing to 33% by 3.00pm and 74% by 4.00pm. At 3.00pm the easternmost window would be unshaded, but about 63% would be shaded at 4.00pm. Overall, the easternmost window would be unshaded by 3 Draper Mews between 8.00am and 3.00pm, and about 63% shaded at 4.00pm, the centre window unshaded between 8.00am and 1.00pm, about 4% –5% shaded at 2.00pm, about 33% shaded at 3.00pm, and 74% by 4.00pm, and the westernmost window partially shaded at 9.00am (9%), 10.00am (15%), 3.00pm (33%) and 4.00pm (74%). In the terms used by Principle 27, all three windows would receive direct sunlight between 9.00am and 3.00pm.
25	Having regard to all the above, I have concluded that the amended proposal strikes an appropriate balance between the interests of the Appellants and the Second Respondent, and is consistent with a fair and reasonable interpretation of Council Wide Principles 26 and 27. Having so concluded, I have further concluded that the subject proposal, as amended, should be approved, subject to conditions. The parties were agreed on conditions, save for the final height of the subject proposal, and I have adopted those conditions.
26	The order of the Court is that Provisional Development Plan Consent is granted for Development Application No. DA/851/2003, subject to the following conditions: