Land and Environment Court of New South Wales CITATION : Vakili v Mosman Municipal Council [2000] NSWLEC 45 APPLICANT Hassan Vakili PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 10334 of 1999 CORAM: Cowdroy J KEY ISSUES: Development :- Residential flat building - non-compliance with development standards - height - bulk and scale - car parking - density - site coverage - adverse environmental impacts - SEPP 1 objections Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No 1 Rivers and Foreshores Impact Act 1948 CASES CITED: Legal and General Life Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192; Lavender View Regency Pty Ltd v North Sydney [no 3] (1997) 95 LGERA 420 DATES OF HEARING: 7/2/00, 8/2/00, 9/2/00, 10/2/00, 11/2/00 DATE OF JUDGMENT: 03/17/2000 APPLICANT Mr J Bingham (Solicitor) SOLICITORS Deacons Graham & James LEGAL REPRESENTATIVES: RESPONDENT Mr I Hemmings (Barrister) SOLICITORS Hill Thomspon & Sullivan JUDGMENT: IN THE LAND AND MATTER No. 10334 of 1999 ENVIRONMENT COURT CORAM:Cowdroy J with Comm. Hussey OF NEW SOUTH WALES DECISION DATE: 17 March 2000 Hassan Vakili Applicant v Mosman Municipal Council Respondent Judgment Background 1. This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 by Hassan Vakili ("the applicant") against the refusal by Mosman Municipal Council ("the council") of a proposed integrated development comprising six dwellings with basement carparking ("the development"). The development site ("the site") is located at 2 Park Avenue Mosman. Planning instruments and development standards 2. By virtue of 79C(1)(a) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") the Court is required to consider the development application with reference to inter alia, applicable planning instruments and their development standards. 3. Mosman Local Environmental Plan 1998 ("LEP 98") was gazetted on 24 December 1998 and is the current planning instrument for the Mosman municipality. Under such instrument the site is zoned Residential 2(d). However since the development application was lodged prior to the gazettal of LEP 98, (in accordance with the savings provisions provided therein (see cl 10(2) of LEP 98)), the development application is to be assessed under the previous local environmental plan for the Mosman municipality, namely Mosman Local Environmental Plan No. 1 ("the LEP") 4. On 22 January 1982, the LEP was gazetted. Pursuant to cl 8 therein, the site is zoned Residential 2(b1). In such zone development is permissible with consent. 5. The development does not comply with several development standards contained in the LEP. The applicant has lodged several objections pursuant to State Environmental Planning Policy No. 1 ("SEPP1"). The applicant contends that the unique nature of the site negates the need for a strict application of such development standards. 6. On 24 May 1994 the council adopted a Residential Control Plan for the Mosman municipality, ("the RDCP") and a Code for Residential Flat Buildings ("the Code"). 7. Section 79C(1)(b) of the EP&A Act provides that in determining a development application a consent authority may consider the likely impacts of the development upon the surrounding built and natural environment. The council submits that the environmental impact of the development upon the site, its surrounds and the creek system will be significant and detrimental. 8. The development is located within a site designated as a 'Foreshore Scenic Protection Area' pursuant to the LEP. Clause 16A of the LEP requires council to assess the impact of the proposed development with regard to the objectives of the 'Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbours' ("SREP 23"). Whilst the subject site is within a Foreshore Scenic Protection Area, it is not directly located on the harbour foreshore and no significant issues were raised in regard to SREP 23. The Hearing 9. Evidence on behalf of council was presented by:- a) Mr P Christmas, Town Planner/Assessment Officer with Mosman Council; b) Mr J Barnes, Contract Traffic Engineer; c) Mr P Davis, Senior Design Engineer with Mosman Council; d) Ms P Kater, Tree Consultant; e) Ms E Maclennan, Landscape Architect with Council; f) Mr L Anderson, Neighbour for 3/12 Park Avenue; g) Mr A Archbold, Neighbour for 1A Park Avenue; h) Mr C Riley, Neighbour for 1/6 Park Avenue. Other submissions contained in Exhibit J were also considered. 10. For the applicant, evidence was presented by:- a) Mr N Ingham, Consultant Town Planner; b) Dr P Redman, Geotechnical Consultant; c) Mr D Ford, Consulting Arborist; d) Dr S Ambrose, Senior Ecologist; e) Mr J Lawrence, Consulting Engineer; f) Mr J Coady, Consultant Traffic Engineer; g) Ms N Sonter, Landscape Consultant; h) Mr D Wolski, Project Architect. The Site 11. The site described as Lot A, DP 375297, with an area of 1,682 m2 is situated at the western end of Park Avenue Mosman where the road reserve terminates. The site contains an existing dwelling which is two storeys in part. It is adjoined by residential properties to the east and south, each of which have access from Park Avenue. Adjoining the site to the west is an area zoned 'Existing Open Space' pursuant to the LEP. 12. The site slopes steeply from the northern end down to the south with a fall of some 19 m over a distance of approximately 20 m. The site is of irregular shape. A section of creek flows along western and southern boundaries of the site and into Reid Park at Mosman Bay. 13. The remainder of the site is heavily vegetated with exotic and indigenous flora. Other features on the site include several large rock outcrops and floaters. Dr Redman a geotechnical consultant retained by the applicant, identified the most significant of these during the hearing as 'Floater A' and 'Floater B'. The Development 14. The development proposes the demolition of the existing house and the construction of a six unit multi-level residential flat building. The units are contained in two separate buildings which are linked by the underground carpark. Each unit has two car spaces and there are two car spaces provided for visitors. 15. The two buildings are identified as Building A, on the east of the site and Building B on the west of the site. Building A comprises a four bedroom unit and a three bedroom dwelling over four levels. This building fronts Park Avenue. Building B on the western side closest to the creek comprises four three bedroom dwellings over four levels. Enclosed courtyards which serve as access ways are proposed on the northern end of each unit. Elevated balconies are proposed for each unit on the southern elevation overlooking the creek. 16. A maximum distance of 8.6 m separates the two buildings at the upper ground level. This setback area contains an existing tree (known as the "cheese tree") which is 6 m high. The buildings enclose this space by surrounding the tree to the north, east and west at a height of up to 4 and 5 levels. In addition the buildings have been designed to enable the retention of two mature Banksia trees (identified as 10 Bi and 15 Bi on the landscaping plan prepared on behalf of the applicant and forming part of Exhibit 7). Complimentary landscaping is proposed for the site, and provision is made to control the site's drainage into the creek system. 17. The carpark is proposed to be excavated to a maximum depth of 9 m. It would be accessible by a driveway from Park Avenue into a basement level and the carpark would provide for fourteen vehicles by using mechanical vehicle stackers. The Issues 18. From the agreed Statement of Issues the points of contention between the parties can be identified as; 1) The merits of the SEPP 1 objections and; 2) Additional s 79C considerations; the environmental impact of the development upon the locality. 1) SEPP 1 Objections 19. Pursuant to cl 3 of SEPP1, the applicant's objections are made on the basis that the development standards should not be applied since such application is ' unreasonable or unnecessary' given the characteristics of the development. In the Court's consideration of such objections, the test adopted is whether the development although not complying with the relevant standard ' nevertheless satisfies the underlying purpose of such standard' (per Talbot J, Lavender View Regency Pty Ltd v North Sydney [no 3] (1997) 95 LGERA 420 at 423; Legal & General Life Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202). i) Clause 11 of the LEP - Height of buildings 20. The stated objectives of cl 11 of LEP are: (a) to protect public and private view where those views are enjoyed above the height standard; and (b) to minimize the visual impact of buildings when viewed form the harbour and surrounding foreshores; and (c) to minimize the impacts of bulk and scale of new development in existing residential areas". These objectives are also reflected in the building height requirements, as set-out in cl 6 of the RDCP. 21. Clause 11 of the LEP provides inter alia that the maximum building height for development within the 2(b1) zone is 8.5 m; the maximum wall height is 7.2 m and a maximum of two storeys applies. Three storeys is permissible if the third storey is constructed within the attic roof space. 22. The subject development exceeds the maximum height of 8.5 m by 3.6 m. The development also exceeds the maximum wall height of 7.2 m by 3.3 m since the development comprises a 10.7 m wall height in the south eastern corner of Building B. Similarly Building A exceeds the maximum wall height in its south eastern corner by 3.3 m and at the southern end of its front elevation the wall height exceeds the standard by 2.2 m. 23. The basement carparking level rises in part greater than 1 m above existing ground level and pursuant to cl 11 of the LEP is to be counted as a storey. The lower floor level, upper floor level and first floor level each constitute a storey. The proposed attic constitutes a fifth storey since it is not built into the roof space as required by cl 11 of the LEP. The attic is also above the maximum 8.5 m height limit. Whilst the applicant describes the development as comprising three-storeys, the development contains five levels. Such levels are all defined as 'storeys' pursuant to cl 11 of the LEP (see also cl 2.12 of the code). 24. Mr Neil Ingham, a consultant town planner retained by the applicant contends that it is both unreasonable and unnecessary to require the development to comply with the standards for overall height, wall height and number of storeys since the development is not visible from the harbour foreshore and the proposed buildings are generally located below the existing tree canopy. Reliance is also placed upon the fact that the site is situated in a gully so that the proposed buildings will appear comparable in size to surrounding structures thereby minimizing adverse impact upon amenity. 25. Mr Paul Christmas a town planner employed by the council, testified that Building A presented excessive wall and ridge exposure along the street frontage with minimal setback. As a consequence of the minimal setback, namely six metres from the Park Street boundary of the site, landscaping opportunities to screen such height were restricted. Mr Christmas was of the opinion that the height of the buildings contributed to its bulk which would dominate the creek and street frontage, and concluded that such domination of the locality was not sympathetic to the natural features and contours of the site. 26. Mr David Wolski, the architect of the development explained that the height of the proposed buildings was a direct consequence of keeping the 'footprint' of the building small in scale, to eliminate as far as possible disturbance to the site. 27. In relation to landscaping Ms Eliza Maclennan, a landscape architect employed by the council gave evidence that as a consequence of the building works numerous trees identified for retention by the applicant would be unlikely to survive. In her opinion the limited setbacks from Park Avenue and creek boundaries and the close proximity of the buildings would restrict effective screening opportunities. Ms Maclennan was also of the opinion that the road reserve was inappropriate for additional plantings since such space could be required for future road widening. 28. Ms Narelle Sonter, a landscape consultant for the applicant testified during cross examination that proposed new plantings adjacent to the creek would have difficulty obtaining their full height and spread due to the proximity of the building to the watercourse. 29. The desire to maximize the number of units on the site has resulted in the height requirements being exceeded. The Court prefers the evidence of the council's witnesses that the applicant's proposed measures for screening this development are inadequate. Taking into consideration the fact that the site is located in a gully, the proposed buildings would still be noticeably higher than the surrounding buildings. 30. For the above reasons the Court considers that there is no justification for allowing the SEPP 1 objection in relation to height. ii) Clause 13(2) of the LEP- Residential Flat Buildings - density control 31. This clause provides density controls for developments in relation to minimum site area, minimum landscaped area and dwelling mix controls. It prohibits council granting development consent to the erection of a development unless inter alia it complies with the requirements of Table A in cl 13. Table A provides 350 m2 as the minimum area required for each large dwelling. A large dwelling being defined as one in which the gross floor area is more than 85 square metres. Application of this standard requires 2,100 m2 of site area for the proposed six units. The area of the site is 1,686 m2. 32. The applicant's justification for seeking variation to cl 13(2) of the LEP is that the proposal has a bulk and scale which is comparable with surrounding development. Furthermore it is submitted that the impact upon visual amenity is limited because only a small proportion of the buildings is visible. 33. Mr Ingham's assertion that the proposed development is compatible with surrounding development is based on a visual assessment, since he had not undertaken calculations of the density of neighbouring buildings. 34. As explained in the discussion of the SEPP 1 objection in relation to height the Court is not satisfied that only a small area of the buildings will be visible from the surrounding locality nor that the application of cl 13(2) to the development is unnecessary or unreasonable in the circumstances. Accordingly this SEPP1 is disallowed. iii) Clause 14 of the LEP - Parking 35. This clause requires that no residential flat building shall be erected unless provision is made within the site for two car spaces per dwelling and one visitor space per four dwellings. Each space is required to be 2.6 x 5.5 m and to have proper access. 36. The applicant has made provision for the required fourteen car spaces, although twelve of those spaces do not meet the requisite 2.6 m x 5.5 m dimension, being variously either 5.4 m in length and or 2.4 m in width. 37. Whilst there are no stated objectives in cl 14, the clause is clearly directed to ensuring the provision of adequate parking for new development. Indeed such was expressed to be the purpose of the 'off-street carparking code' which forms Appendix A to the RDCP. 38. The applicant's proposal to construct six large units on the steeply sloping site has necessitated an unusual parking design. To provide for the required 14 car spaces in the underground carpark, the resident parking spaces are provided in the form of six double level car stackers with two conventional visitor parking spaces. A turn table is also included to enable vehicles to enter and leave the premises in a forward direction. 39. The Court accepts Mr John Coady's evidence (a traffic consultant for the applicant) that the underground carparking represents an innovative design which would satisfy the parking requirements of such limited space. However, limited technical information was available relating to the specification of the stackers and it is obvious that the parking arrangements proposed are deficient when compared to the requirements of cl 14 of the LEP. The car stackers for example, are limited in height and do not comply with the height requirements in cl 3 of Appendix A to the RDCP. The minimum required height is 2.1 m for an underground carspace whilst the car stackers have a minimum height of 1.5 m on the lower level and 1.8 in the upper level. As a consequence not all stackers could accommodate four wheel drive vehicles, such vehicles being commonly used by the residents of Mosman. The applicant has sought to justify such shortcoming by emphasizing that the requirement to accommodate four wheel drive vehicles, which are larger than the 85th percentile vehicle is not a specified control. 40. Mr Coady testified the car stackers could be built to satisfy this requirement. However, due to the overall height constraints within the basement carpark, the deck height of the stackers would still be in the order of 1.5 m. Access to vehicles would also be awkward and impractical. 41. The height restriction for accessing vehicles in the proximity of the turntable introduces a degree of inconvenience which the Court considers is not appropriate and does not provide the parking amenity required by the large units proposed. The inconvenience of maneuvering vehicles in such a confined space, the need to move one vehicle to access another, combined with the use of a turntable are factors which mitigate against any modification to council's standards. Accordingly the SEPP1 objection in relation to cl 14 of the LEP is not allowed. iv) Clause 23 (2) of the LEP - Site Coverage 42. This clause requires that a development in the 2(b1) zone in the form of two buildings, to have a minimum separation of 10 m. 43. Whilst Buildings A and B have a combined building footprint of 471m2, they are two separate buildings, a fact upon which both the council and applicant agree. These building do not comply with the minimum separation requirement since they have a minimum separation of 3.5 m. 44. The objective of the building separation standard contained in cl 23(2) of the LEP is to provide space between buildings thereby reducing the bulk and scale of buildings on a site and ensuring that any development is in keeping with both the built and natural surrounds. 45. The justification provided by Mr Ingham for such non compliance is the alleged compatibility of the development with the surrounding buildings and the assertion that the provision of the required 10 m separation would not result in a significant improvement to the amenity of adjoining properties or the locality. 46. Mr Wolski contended that the combined building footprint of 471m2 was small in scale in order to minimize the impact of the development upon the site. He testified that the non-compliance with the setback requirement was a consequence of the desire to minimize the environmental impact of the development upon the site. 47. Mr Christmas provided evidence that the extensive retaining structures utilized in the development to the north of the site and along the creek bed effectively increases the 'footprint' of the building. In his opinion the small separation of the buildings serves to spatially dominate and potentially threaten a significant tree, (the 'cheese tree') and to detract from the creek and surrounding environs. 48. The Court accepts Mr Christmas's evidence. The proximity of the buildings to one another would increase the bulk and scale of the development and given the extensive retaining structures as well as the loss of vegetation it cannot be asserted that this is a 'best practice' design. The SEPP 1 objection in relation to cl 23(2) is not allowed. 2) Additional s 79C considerations; Environmental Impacts. 49. Mr Christmas testified that the redevelopment of six dwellings with an underground carpark was, in his expert opinion, an overdevelopment of the site. In particular Mr Christmas noted that the development did not have adequate regard for the environmental constraints and the key features of the site which he identified as follows; a) A significant natural watercourse which runs adjacent and through the subject site. b) The topography of the site which falls towards the banks of the creek. c) Significant vegetation which is likely to be impacted by the proposed building. d) The style and bulk of the development in the context of adjoining development and natural features of the site. e) Views of the site from the public reserve. Impact of the development on the water course 50. As a consequence of the building footprint, unit no. 5 inclusive of courtyard, together with the southern walls of unit no. 4 are in close proximity to the creek bank. Mr Christmas estimated the setback of unit no. 4 from the creek bank to be approximately 1.5 m, and he expressed concern for the vulnerability of the creek bank to erosion and collapse. The creek system is in a degraded condition but funds have been approved for various water quality control devices upstream of the site, to enable regeneration of the creek. Whilst the actual building of the development would have little impact on these works, Mr John Lawrence (a consulting engineer retained by the applicant) stated that the stormwater flows would create a risk of erosion on the creek bank. He did not consider this risk high because he concluded that the creek was in a state of "quasi-equilibrium", meaning the creek would be stable for lengthy periods of many years with only minor changes occurring during or after exceptionally heavy rainfall. 51. According to Dr Peter Redman, a geotechnical consultant retained by the applicant, the creek bank comprises various boulders and colluvium. He maintained that the creek bank could be stabilized by use of pier and beam foundations for the development. The piers would be offset 1.5 m inside building B. This would then require an integrated beam to support the external structural curtain walls. 52. The use of beams and piers is an unusual design feature necessitated by the proximity of the building to the creek bank. The code requires a progressive setback determined by the building height. A minimum setback distance of 8.25 m is required adjacent to a three-storey development and 11 m set-back for a four-storey development. The applicant's reference to the more recent DCP 98 does not assist the applicant since its provisions require a minimum setback to natural features and creeks of 5 m. 53. Whilst the Court accepts Mr Lawrence's evidence that the site drainage can be controlled during and post-construction by grading works beside the creek bank to prevent scouring, a greater setback area to the creek bank should be provided to ensure its preservation. An increased setback from the creek bank would also allow excavation work to provide maximum integration with the landscaping works. Such integration would also enhance the amenity of the area, aiding in the minimization of the bulk of the development and providing greater area for screening opportunities. 54. The development not only fails to comply with the quantitative aims of council's development standards but also the qualitative aims of such standards in that it does not include appropriate provisions for the sustainability of the creek system. Sustainability of a site for development is a relevant consideration pursuant to s 79C(1)(c) of the EP&A Act. 55. The creek is classified as a river pursuant s 2 of the Rivers and Foreshore Impact Act 1948 . Such Act is administered by the Department of Land and Water Conservation, ("DLWC"). Due to the proximity of the proposed excavations to the creek the DLWC was consulted in relation to the development application. The DLWC advised that the development was inappropriate for the site due to the removal of vegetation and the proximity of the dwelling to the bank of the watercourse. This advice supports the Court's conclusion that this proposal is lacking thoughtful measures for the sustainability of the water course and represents an overdevelopment of the site. Impact of development upon vegetation 56. Clause 16 of the LEP requires that an area equivalent to 120% of the total gross floor area of a development be landscaped area. The applicant has met this quantitative requirement with an excess of 132.8 m2 landscaped area being provided within the development. 57. Clause 16 has quantitative aims which are complimented by the provisions of the RDCP. Clause 4 of the RDCP provides that in addition to the provision of sufficient landscaped area, a council must be satisfied that the following requirements are met; 4.1.2 To maintain and enhance the character of the Mosman residential areas; 4.1.3 To enhance residential amenity and individual settings of buildings by providing adequate proportion of landscaped area to each site, and 4.1.4 encourage useful and accessible landscaped areas with adequate sunlight, shade and privacy. 58. The design of the development recognizes the significance of the existing mature vegetation and endeavors to retain it. Nevertheless certain established trees are at risk. Specific attention was given to the two Banksias (identified as 10 Bi and 15 Bi on exhibit 7) and the cheese tree (identified as 21 Gf on exhibit 7). 59. The proposed building works for unit no 3 and unit no 4 are within 4 m of the trunk of 15 Bi and consequently it is proposed to raise the building to allow a root zone under the footings, and permit this tree to protrude through an elevated footway between building A and building B. Notwithstanding these extraordinary design features Mr David Ford, an arborist retained by the applicant, gave evidence that this tree has two trunks, one being in 'die back' condition and the other suffering defoliation. Mr Ford evaluated tree 15 Bi using the Safe Useful Life Index ("SULE"). This is an evaluation with reference to the life expectancy of the tree modified by various factors such as its age, location, health and safety. Pursuant to this evaluation Mr Ford classified the tree Bi 15 as 3D, which indicates that it requires substantial remediation and is only suitable for retention in the short term. 60. The other Banksia (10 Bi) is located further away from the building and while it is stressed to some extent, Mr Ford categorized it as a 2D SULE. Since there would only be limited root disturbance, he considered its survival chances satisfactory. 61. Each of these trees (10 Bi and 15 Bi) were independently assessed by council's aborist, Ms Penny Kater who in written evidence submitted that Banksia trees are sensitive to increase in minerals such as phosphates, which are common on building sites. Her conclusion was that both trees were mature to senescent and " with the greatest care and best intentions, the reality of conditions on a building site and the proximity of building as indicated on the plans submitted to council will inevitably lead to the rapid decline and death of these trees ". 62. The other tree of concern was the cheese tree (21Gf), which appears as a significant 'design' constraint, given that the three upper sides of the buildings wrap around the tree. The building walls are some 2.5 m away and the excavation on its uphill side is in the order of 4.5 m for the basement carpark. Despite field testing for root location, Mr Ford classified this tree a SULE of 3B which is a " tree which may live for more than 15 years but would be removed for safety or nuisance reasons ". 63. A landscape plan created by Ms Sonter, indicates new plantings adjacent to the creek. Following her cross-examination it appears that the two proposed cheese trees in this area may experience difficulty in achieving their potential mature height of 8 m and mature spread of 7 m. Such height and spread is essential to screen the four-storey elevations in this part of the building. Ms Sonter conceded that such trees if allowed to develop would probably rub against the windows of the units. 64. During the hearing the location of the mature magnolia tree (of some 5 m height) was revised but its final proposed location within the main pedestrian entrance does not in the Court's opinion present as a practical main pedestrian entry. Ms Maclennan believed the survival of the tree after its relocation would not be assured. 65. On the basis of this evidence, the Court accepts that the three mature trees are in a stressed condition and would be unlikely to survive due to the proximity of the proposed buildings. In the Court's opinion the need to place the building in such close proximity to these trees is a further demonstration of the overdevelopment of this site in terms of its environmental capacity. 66. A further issue relating to the landscaping concerned the impact at the Park Avenue entry to the site. As the western end of Park Avenue is unformed and contains natural vegetation the applicant proposed to retain it as a landscaped area and to compliment it by planting trees on the site and in the road reserve in order to effectively screen the units. 67. Such proposal was rejected by Ms Maclennan who considered that the applicant should not rely on the council's public road reserve for landscaping. Council also submitted that this area should not be used exclusively for screening because it may be required in the future for road pavement improvements. 68. The Court is not satisfied that the qualitative objectives of the landscaping requirements are met. Such objectives include measures to maintain and enhance the useful and accessible landscaped areas. The minimal building setbacks along the southern and south-western boundaries unduly restrict opportunities for complimenting new landscaping and accessibility to those areas. Furthermore the minimum setbacks along the south and south-western boundary detracts from the natural amenity of the creek environs. The Court considers that the reliance on the road reserve screening and high risk transplanting of the magnolia which interferes with pedestrian access is not acceptable. Conclusion 70. There should be no departure from development standards as formulated by council without justifiable reasons for such departure being demonstrated by an applicant. As Cripps J stated in Legal & General Life Australia Ltd v North Sydney Municipal Council at 201, SEPP1 is not to be ' used as a means to effect "general planning changes" throughout the municipality '. 71. Having taken a view and considered the evidence with reference to s 79C of the EP&A Act, including resident objections and the submissions, the Court considers that this proposal is an overdevelopment of the site. Directly in consequence of the over-development, the development breaches requirements of the council's standards as contained in the local environmental plan and applicable residential control plan. There are no sound reasons advanced to grant the requested dispensations from such requirements. Orders 72. The Court Orders that:- 1. The appeal be dismissed 2. The development application for residential flat building on Lot A DP 375297 at 2 Park Avenue Mosman is determined by the refusal of consent. 3. The exhibits be returned. 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.