Land and Environment Court of New South Wales CITATION : Sangha Holdings Pty Limited v Kogarah Council [2001] NSWLEC 179 APPLICANT Sangha Holdings Pty Limited PARTIES : RESPONDENT Kogarah Council FILE NUMBER(S) : 10056 of 2001 CORAM: Cowdroy J KEY ISSUES: Development Consent :- appeal against council refusal of development consent for medium density housing - retention of heritage building of regional significance LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C, s 97 CASES CITED: Colon Peaks Mining Co No Liability v Wollondilly Shire Council (1911) 13 CLR 438 DATES OF HEARING: 26/6/01, 27/6/01, 28/6/01, 29/6/01, 16/7/01, 17/7/01 DATE OF JUDGMENT: 08/23/2001 APPLICANT Mr J Webster (Barrister) SOLICITORS Swaab Attorneys LEGAL REPRESENTATIVES: RESPONDENT Mr S Berveling (Solicitor) SOLICITORS Abbott Tout JUDGMENT: IN THE LAND AND MATTER No. 10056 of 2001 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 23/8/01 Sangha Holdings Pty Limited Applicant v Kogarah Council Respondent JUDGMENT Facts 1 Sangha Holdings Pty Limited ("the applicant") instituted class one proceedings on 19 January 2001 following the deemed refusal by Kogarah Council ("the council") of the applicant's development application 670/2000, for a development of seven townhouses, ("the application"). 2 The application was submitted to the council on 1 December 2000. It was made in respect of the conversion of the existing heritage building into two town houses and the erection of five townhouses, with underground car parking and landscaping at land being Lot A DP 29102, situated at 4 Marie Dodd Crescent, Blakehurst ("the land"). Subsequently the application was amended to include the demolition of part of the existing dwelling. 3 I have been assisted during the hearing and with the preparation of these reasons by Commissioner S J Watts and together we accompanied the parties on a site inspection on the second day of proceedings. The Court has also considered the evidence from the following expert witnesses:- Name Expertise Party Philip Thalis Architect Applicant Dr Richard Lamb Heritage Applicant Gary Shiels Town Planner Applicant D M Taylor Landscape Architect Applicant Graham Brooks Heritage Applicant Steven Layman Town Planner/Architect Respondent Ross Shepherd Landscape Architect Respondent Jennifer Hill Architect Applicant Formal requirements 4 The subject land is located within the Residential 2(a) zone under the Kogarah Local Environmental Plan 1998 ("the KLEP"). It is within a Foreshore Scenic Protection Area ("the FSPA") under the KLEP and there is an item of regional heritage significance on the land. 5 On 2 July 1999 the KLEP was amended by the insertion of amendment 2, which specifically provides for villa and townhouse residential development in the 2(a) Residential zone. Pursuant to cl 22A of the KLEP the proposed development is permissible with consent. 6 Although the appeal was filed in the Court on the basis of a deemed refusal, the council formally refused the application before the appeal was heard. 7 On 23 February 2001 the council's solicitor notified the applicant of fourteen issues to be addressed at the hearing. These were refined at issues conferences that were held at the Court on 14 and 22 May 2001, and issues 3, 4 and 9 (subject to conditions), 11 and 12 were deleted. On 5 July 2001 a further amended statement of issues in Exhibit L was filed. The issues now in dispute are:- 1. Whether the proposed development is permissible within the 2(a) Residential (Low Density) Zone, pursuant to Kogarah Local Environmental Plan 1998 (LEP). 2. Whether the proposal is contrary to the objectives of 2(a) Residential (Low Density) Zone, pursuant to the LEP. 3. deleted as the issue is resolved. 4. deleted as the issue is resolved. 5. Whether the proposal complies with Locality 3 Blakehurst (South) in the Locality Guide Section of the Kogarah Better Home Design Guide Residential DCP and the height, setback and other requirements in the Elements of Good Design Section of the Kogarah Better Home Design Guide Residential DCP. 6. Detrimental impact of proposed development on heritage item of regional significance on site, namely house and garden. 7. Excessive bulk and scale of proposed development. 8. Whether the proposal will have a detrimental impact on the privacy and amenity of the neighbours. 9. deleted as the issue is resolved. 10. Inadequate provision of landscaping, and inappropriate tree loss. 11. deleted as the issue is resolved. 12. deleted as the issue is resolved. 13. Inadequacy and inaccuracy of plans and supporting information (including inconsistency of elevations and section, driveway access including gradients is not legible, groundline at building perimeter is not adequately described on drawings, and general inadequacy and lack of clarity of elevations in sections). 14. Whether the proposal is reasonable, having regard to the issues raised by objectors, and whether the proposal is in the public interest. Basis for the rejection of the application 8 The council had received numerous objections to the proposal including a petition. Concerns included:- · the loss of a bushland setting; · difficulties with increased traffic and resulting car parking; · the impact of the character of the proposal; · overdevelopment; · impacts of privacy and noise; and · the loss of views from surrounding areas. 9 The council thus rejected the application on 11 April 2001, for the following reasons:- 1. That the proposed development does not comply with the requirements of Clause 9-Land Filling and Excavation, Kogarah Local Environmental Plan 1998 (Section 79C(1)(l) of the Environmental Planning and Assessment Act 1979, as amended). 2. That the proposed development does not comply with the objectives of Clause 17-Heritage KLEP 1998, in that it may result in damage to the listed heritage item. (Section 79C(1)(l) of the Environmental Planning and Assessment Act 1979, as amended). 3. That the proposed development does not comply with the requirements of Clause 22A(9)(b)-Development in Residential 2(a) zone, Kogarah Local Environmental Plan 1998, (Section 79C(1)(l) of the Environmental Planning and Assessment Act 1979, as amended). 4. That the proposed development does not comply with the building height or setback requirements of Residential Development Control Plan-Better Home Design Guide. (Section 79C(1)(iii) of the Environmental Planning and Assessment Act 1979, as amended). 5. That the proposed development will result in detrimental impacts on the natural and built environment. (Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, as amended). 6. That the subject site is considered unsuitable for the proposed development due to its topography and natural features. (Section 79C(1)(c) of the Environmental Planning and Assessment Act 1979, as amended). 7. The proposed development does not comply with the requirements of Clause 2(e) of the Kogarah Local Environmental Plan 1998, Amendment No 2. 8. That the proposed development is contrary to the submissions made during the neighbour notification period and is not considered to be in the public interest. (Section 79C(1)(d) and (e) of the Environmental Planning and Assessment Act 1979, as amended). Qualities of the site 11 The site is "L" shaped with a combined northern boundary of 66.02 m; a frontage to Marie Dodd Crescent of 34.14 m; a combined eastern boundary of 55.48 m; a southern boundary of 66.51 m; a western boundary of 60.35 m yielding a site area of approximately 2,885 m2. The site is adjoined by nine properties. 12 The site falls from north to south from Reduced Level ("RL") 28.82 m to RL 20.91 m along the western boundary and there is a cross fall from west to east from RL 26.75 m to RL 23.97 m along the northern boundary with 2 Marie Dodd Crescent. 13 Erected on the site is a two-storey dwelling house with a three-storey tower fronting Marie Dodd Crescent. This building is described by the applicant as an inter-war Functionalist style and is known as 'Braeside Castle'. A circular driveway with a porte cochere gives vehicular access to the existing dwelling. 14 There are trees and shrubs along the eastern and western boundaries of the site including a Lemon Scented Gum at the front of the site. 15 Residential development nearby comprises a variety of Federation, inter-war period housing styles, interspersed with modern dwellings, some with rendered walls. These dwellings are mostly two-storey in height with off street car parking. Shipwrights Bay is to the south and the land generally slopes down to the bay. 16 To the north of the site is 2 Marie Dodd Crescent, which is a two-storey brick dwelling with garage under the building. 17 Number 78 Townson Street is a part one-storey and part two-storey rendered brick dwelling with a pool and cabana that overlooks the site. 18 Number 80 Townson Street is a two-storey brick dwelling with a rear yard about 1.0 m to 1.5 m above the site level. Further to the north are other two-storey dwellings. 19 To the east, on the opposite side of Marie Dodd Crescent is the two-storey dwelling at 3 Marie Dodd Crescent. Further to the east are other one-storey and two-storey dwellings. 20 To the south are also one-storey and two-storey dwellings such as 6, 8, 10, 12 and 14 Marie Dodd Crescent. Further to the south are one-storey, two-storey and three-storey dwelling houses, a foreshore reserve, Shipwrights Bay and a park. 21 To the west of the site are dwellings at 8, 10, 10A Coogarah Street, all two storey in height. The rear building line of these dwellings is of the order of 12 m from the western boundary of the site. Further to the west there are two-storey and three-storey dwellings and the Bald Face Primary School. The proposal 22 On 1 December 2000 the applicant lodged development application 670/2000 to demolish part of the existing dwelling house and convert it into two townhouses and to erect three new buildings. Two of the proposed buildings would contain two townhouses each and the other containing one townhouse, with basement car parking. Car parking for sixteen vehicles is proposed in a basement level under the new buildings. It is proposed to strata subdivide the townhouses into seven lots. 23 The proposal is described in plans prepared by Hill Thalis Architecture & Urban Projects dated 21 May 2001 in Exhibit 10. 25 Townhouses 1 and 2 would be contained within the existing building and would provide, on the ground floor, for separate living, dining, laundry, bathroom and kitchen. On the first floor Townhouse 1 would comprise three bedrooms, an ensuite, studio and bathroom. Townhouse 2 would have one bedroom at the ground floor and two bedrooms and bathroom at the first floor. 26 Building 1 is proposed to the north of the existing building and will comprise Townhouses 3 and 4. Building 2 proposed to be located in the north western corner of the site would contain Townhouses 5 and 6. Building 3 would be located to the west of the existing building and would contain Townhouse 7. Each of these townhouses comprise a separate living, dining, laundry, kitchen, toilet and bedroom on the ground floor. On the first floor there would be two bedrooms and bathroom. Townhouse 7 is to be adaptable with direct pedestrian access from the street and an underground car parking area to the unit. A stair lift may be installed if necessary. 30 Common garbage areas are proposed to be provided within the basement level along the northern and southern boundaries of the site, with separate garbage facilities in each of the garages. 32 It is proposed to provide 886 m2 of landscaped at ground level, and a further 839 m2 of communal open space in the central courtyard and at the front of the site. Each of the townhouses would have private open space in courtyards at ground level and upper level terraces. Legal requirements 33 The relevant planning controls are:- Kogarah Local Environmental Plan 1998 ("KLEP") 34 The land is zoned Residential 2(a) under the KLEP that was gazetted 2 October 1998. On 2 July 1999 amendment 2 to the KLEP was included to provide for infill development. 35 Pursuant to cl 22A of the KLEP the objectives are:- To provide opportunities for a compatible mix of dwelling types in localities within the Residential 2(a) Zone. 36 This clause overrides remainder of plan wherein it states:- (1) This clause has effect despite the other provisions of this plan. 37 The aims of amendment 2 to the KLEP which are found in Annexure B to Exhibit 2 relevantly are:- (a)… (b)… (c) to provide opportunities for the provision of a compatible mix of dwelling types in existing residential localities to allow residents to remain in the same locality after their housing needs change, (d) … (e) to allow on certain larger sites, residential development for the purpose of dwellings of a kind that is compatible in character and form with the surrounding low-density residential environment to provide a greater housing choice and more economic use of land. 38 Clause 22A(9) of the KLEP states:- The Council is not to grant a consent referred to in subclause (8): (a) if the site coverage of the propose buildings, when considered in total would exceed 30%, or (b) unless the Council is satisfied that the carrying out of the proposed development will comply with the requirements of any applicable development control plan which , for the purposes of this paragraph, is taken to include any development control plan that applies to development for the purpose of single dwellings. 39 The definition of site coverage pursuant to cl 25(1) of the KLEP is:- Site coverage means the ratio of the sum of the areas within the outer face of the external enclosing walls of the ground floor levels of all buildings on the site (including garages, but not including columns, wing walls and sun control devices) to the site area expressed as a percentage. 40 The object of cl 16 of the KLEP is stated to be as follows:- To ensure that ecological sustainability is considered as part of the development assessment process. 41 Clause 17 of the KLEP relates to heritage and the objectives are:- (a) To conserve the environmental heritage of the land to which the plan applies; (b) To integrate heritage conservation into the Planning and Development Control process; (c) To provide for public involvement in the conservation of environmental heritage, and (d) To ensure that any development does not adversely effect the heritage significance of Heritage Items and Conservation Areas and their settings; and (e) To provide incentives for restoration and conservation of Heritage items. 42 Clause 17(9) states:- The Council may grant consent to the use, for any purpose, of a building that is a Heritage item or is within a Heritage Conservation Area, or of the land on which the building is erected, even though the use would otherwise be prohibited by this plan, if it is satisfied that: (a) the proposed use would not adversely affect the heritage significance of the item or Heritage Conservation Area, and (b) the proposed use would have little or no adverse effect on the amenity of the locality, and (c) the conservation of the building will be carried out adequately. 43 The existing building known as 'Braeside Castle' is listed in the KLEP as an item of regional significance. The Better Homes Design Guide Residential Development Control Plan ("RDCP") 44 The RDCP is also known as the 'Kogarah Development Control Plan Beyond 2000', and came into force on 26 July 1999. The RDCP applies to all development for residential purposes in Kogarah, with some exceptions. It comprises eight parts including:- · Locality guide; · Site considerations; · Elements of Good Design; · Setbacks; · Building height; and · Open space. 45 The Locality Guide in Part 3 of the RDCP, identifies the subject land as being within the Blakehurst South Locality. This part of the RDCP identifies desired character and design guidelines: streetscape and landscape, building form, traffic and parking, low front fencing (1 metre height limit and materials should be sandstone or similar); buildings not to have excessive bulk; loss of views from streets and public spaces to be minimised; and that garages and driveways should be concealed from view in the streetscape. 46 In relation to streetscape, the RDCP states that the desired character for the Blakehurst (South) locality should:- · Maintain garden suburb character, with the promotion of landscaping to the front areas of dwellings; · Maintain the bushland character of the area particularly in relation to the mature larger trees, and by planting of other native vegetation suitable to the locality; · Maintain uniform setbacks of front walls of houses from the street; · Front fencing must be low height and similar in height and form with adjoining and nearby fencing; and · Ensure remnant bushland is protected. 47 Part 4 of the RDCP contains general guidelines for all developments covered by the RDCP, which apply in addition to the locality-specific criteria contained in Pt 3 of the RDCP. The general guidelines in Part 4 relate to, amongst other things: zoning and planning considerations, subdivision, site requirements, minimum site requirements, hazardous land and preparing a site analysis plan. The site is not considered hazardous land and a site analysis plan accompanied the application. 48 In the 2(a) Residential zone the minimum site size is 880 m2 to 5,000 m2. The minimum frontage is 15 m and the minimum site area per dwelling is 220 m2. 49 Part 5 of the RDCP contains general controls for all developments covered by the RDCP, which apply in addition to the locality-specific criteria contained in Part 3. The general controls in Part 5 relate to: streetscape, setbacks; building size and location; open space and landscaping; fences and walls; views; energy efficiency; stormwater management; acoustic: and visual privacy; car parking and driveways; and disabled access and adaptable housing. 50 In relation to site coverage, the RDCP seeks to limit this to no more that the maximum of 30% for allotments greater than 1,500 m2. 51 In relation to setbacks, Pt 5.1 of the RDCP requires a minimum front setback of 6 m where adjacent buildings are setback 9 m or more. The setback should also relate to neighbouring properties. The existing building on site has a front setback of approximately 26 m. Number 2 Marie Dodd Crescent is setback 20 m with a balcony at 15 m. Number 6 Marie Dodd Crescent is setback 7.6 m. 52 The relevant objective, relating to street setbacks states:- To enhance the neighbourhood character by encouraging appropriate setbacks, height and visual bulk. 53 In terms of rear setbacks, the RDCP would require a minimum rear setback of 3 m plus one quarter the amount that the wall height exceeds 3 m. The minimum side boundary setback in the RDCP is 1.8 m. 54 The building height table of the RDCP sets out a maximum height for developments on allotments greater than 1,500 m2 of 7 m to eaves and 9 m to ridge. The relevant objectives relating to height in the RDCP are:- 1 To enhance the neighbourhood character by encouraging appropriate setbacks, height and visual bulk, and 2 To reduce the appearance from the street of excessive bulky buildings." 55 The performance criteria related to height in the RDCP states:- Building heights must complement the streetscape, while providing scope for individuality in design and most reduce bulk by placing higher proportions of the building out of sight, or set back from the front building. 56 Part 5.2 of the RDCP stipulates performance criteria that aim to minimise fuel use and greenhouse emissions through the promotion of energy efficiency. 57 In relation to open space, Part 5.3 of the RDCP states that development shall comprise a minimum private open space of 40 m2 at ground level with a minimum dimension of 4 m open space for each dwelling. For residential flats, 50 m2 of communal open space per dwelling is required with a minimum area of 75 m2. The RDCP also requires the minimum impervious area of the site to be no more than 55%. 58 Part 5.5 of the RDCP specifies a number of performance criteria that aim to ensure adequate acoustic and visual privacy for future occupants of the proposed development and for neighbouring residents. 59 Part 5.6 of the RDCP states that for townhouses and villas the minimum on-site car parking provision is 1.5 spaces per townhouse and 1 visitor space per 5 townhouses. 60 Part 5.7 of the RDCP relates to stormwater management and outlines certain measures to best deal with this issue. 61 Part 5.8 of the RDCP, relates to waste management during and post construction. 62 Part 5.9 of the RDCP relates to heritage and conservation areas. 63 Section 5.10 of the RDCP, states that the proposal is required to provide a minimum of one townhouse that is adaptable, for elderly people or people with a disability, and s 5.11 of the RDCP relates to access for people with a disability in multi-unit housing and applies to the adaptable townhouse only. Compliance with the controls 64 The applicant submits that the proposal complies with: · the minimum site area of 1,500 m2; · the maximum site coverage of 30%; · the minimum site area per dwelling of 300 m2; · boundary setbacks; · minimum private open space of 40 m2 per dwelling; · (although not strictly necessary) minimum communal open space of 50 m2 per dwelling and 75 m2 total; · maximum impervious area of 55% (1586.75 m2); · car parking provisions and storage requirements; and · building height performance requirements. Project data/policy compliance 65 Site area 2,885 m2 Development standard LEPs and DCPs Proposal Compliance Minimum total site area 1,500m2 2,885 m2 Yes 27.79% (applicant) Maximum site coverage 30% Yes: as shown in Site Coverage Breakdown Exhibit 3. No: as shown in Exhibit J noted in pencil. 33.97% (respondent) Minimum site area per dwelling 300m2 412.14 m2 Yes Maximum building height 7 m to eave 6.86 m - 7.9 m No in respect of the existing building and Townhouses No 3 and 4 9 m to ridge Boundary setbacks: 4 m 4 m Yes North 4 m 5.6 m Yes North 6 m 20 m Yes East 4 m 7.5 m to 8.4 m Yes South 4 m 4 m Yes South 3.25 m to 4 m 3.4 m - 5.6 m Yes West Minimum private open space 40 m2 56.12 m2- 191.94 m2 Yes Minimum common open space 50 m2 per dwelling and 75 m2 total 839.23 m2 Yes Maximum impervious area 55% of site area or 1,586 m2 1,435 m2 or 49.7% Yes Car parking: 11 14 Residents 1 2 Yes Visitors 1 1 Yes Car wash bay 12 16 Yes Total Bike storage Garbage storage In relation to size and number of dwellings ie 7 1 per townhouse Yes General storage 66 The applicant argues that the proposal promotes:- …an attractive streetscape [through building design] and extensive landscaping. The existing heritage building is [to be] retained and complemented by the proposed townhouses that reflect elements from the existing structure. Garages would be concealed [from view of those passing by] and manoeuvring areas and the garage doors would be recessed. 67 The proposal would provide 412 m2 of site area per dwelling and would exceed the minimum site area per dwelling of 300 m2 required by the RDCP. 68 The applicant considers that the proposal would have site coverage of 801.76 m2 or 27.79% of the site area and would comply with the RDCP requirements. Mr Layman considered that the proposal would result in site coverage of around 33.97%. Mr Layman included an area of the basement level generally below ground level associated with the garages in his calculation of the site coverage. 69 The proposed development has a front setback of 20.0 m and 17.4 m to the terrace, which the applicant argues would comply with the requirements of the RDCP and the proposal would comply generally with the required side and rear setbacks of the RDCP. 70 The existing heritage building exceeds the height limit of 7 m, however, as it is an item of heritage, there is no issue between the parties in respect of that non-compliance. 71 The proposed southern wall of Townhouses No 3 and 4 exceed the height by between 500 mm and 900 mm. The non-compliance in wall height does not directly impact on any adjoining dwelling in terms of shadowing or loss of views or privacy being located 13.5 m from the southern boundary of 2 Marie Dodd Crescent. 73 Pursuant to cl 5.3 of the RDCP the proposal is required to provide 40 m2 of private open space per villa, namely 280 m2 in total for the proposal. It would provide 805 m2 of private open space at ground level and 81 m2 of private open space above ground level which exceeds the minimum requirements. 74 Ground level private open space ranges from 56 m2 to 192 m2 for each townhouse. About 1,435 m2 would be of impervious surface, representing 49.97% of the site. 75 Although applying only to residential flat buildings, the proposal provides 839 m2 of communal open space to meet the open space requirement of the RDCP. 76 The proposal has been designed to ensure visual and acoustic privacy through offsetting buildings, windows and landscape screening of side boundaries. 77 The proposal provides a total of 14 residential spaces, 2 visitor spaces, 1 car wash bay, and bike storage and general storage areas for each townhouse and complies with the RDCP requirements. The visitor spaces are capable of being used as disabled parking. The RDCP includes provisions relating to ramp grades and it is common ground that the proposal satisfied the traffic and parking provisions. 78 Drainage and stormwater measures are incorporated in the application and the relevant provision of council's RDCP have been addressed in a "Stormwater Management Plan" prepared by Harrison Friedmann & Associates. 79 The proposed development provides storage facilities in garages for the temporary storage of bins, and common garbage storage areas that are located away from the street and out of view of passers-by. A "Waste Management Plan" was submitted with the development application. 80 The heritage aspects of the proposal are dealt with in the heritage reports prepared by Mr P Thalis, Ms J Hill and Mr G L Brooks, as well as Mr J Mathias the council's heritage advisor. 81 The proposal provides Townhouse No 7 as an adaptable townhouse and is consistent with the objectives and criteria of the RDCP. The proposal is also consistent with the objectives and criteria of the RDCP in relation to disabled access to the adaptable townhouse. Objectors 82 Evidence was given by: Mr D J Grosvenor, resident of 2 Rose Avenue, Connell's Point; Dr D J Cordato, resident of 80 Townson Street, Blakehurst; Ms J A Feeney, resident of 10 Marie Dodd Crescent; Mrs S Teo, resident of 8 Coogarah Street, Blakehurst; Mr P P Skelly, resident of 78 Townson Street, Blakehurst; Mr P Gardiner, resident of 10A Coogarah Street, Blakehurst; Mr S J Burnham, resident of 5 Townson Street, Blakehurst; Dr L L Lewis, resident of 10 Coogarah Street, Blakehurst; Ms M L Fuller, resident of 82 Townson Street Blakehurst. The residents were generally concerned that the effect of the development would interfere with their peaceful enjoyment of their land. Specific concerns included that the proposal would:- · not be in character with the surrounding area, · increase the residential density, · exacerbate traffic conditions in the narrow cul-de-sac and there would be a conflict with traffic and people using the walking trail in Shipwrights Bay, · interrupt views to the south especially of Shipwrights Bay and towards Georges River, · impact on the lifestyle of residents and decrease the value of dwellings, · cast shadows on adjoining properties, · cause a loss of privacy to neighbouring properties, · encourage the use of motor vehicles and increase carbon monoxide levels, · cause others to suffer a "boxed in" feeling or a "claustrophobic" effect, · require additional landscaping and no amount of landscaping would compensate for the over-development of the land, · require three additional buildings to be constructed at the "posterior" of the land, · require excavation, and damage may be caused to the pool on adjoining land, · impact on the heritage value of the existing building, · include new trees that would be likely to overhang the boundary, · require excavation into rock to provide depth of soil for new trees, · utilise a site, that is of an unusual shape, · involve landscaping that would create a "wall effect", · take away the park-like aspect, and · infringe on the way of life of neighbours. Expert evidence 83 The Court heard evidence from:- 84 Mr Layman, consultant town planner, who testified for the council and was of the opinion that the application should be refused for the reason that the proposal:- …exceeds the site coverage permitted in clause 22A(8) of the Kogarah LEP 1998 and does not comply with the Kogarah Development Control Plan Beyond 2000, Residential Development. Townhouses 3 and 4 exceed the height control. Site coverage and impervious area controls are also exceeded. Locality Guide requirements are not satisfied regarding bulk/site coverage, impact of driveways and visitor parking on streetscape and front setbacks. The Residential DCP provides that where there is any inconsistency between the requirements of a specific locality and the main body of the DCP, the requirements in the locality section prevail. The location and design of two storey development above parking at the rear of the subject site gives rise to privacy and amenity impacts on neighbours, which are exacerbated by the topography of the land. There is an existing poor relationship between the bay windows of 'Braeside Castle' and the private open space and pool area of 6 Marie Dodd Crescent. There is an opportunity to redress this by provision of appropriate landscaping adjoining the common boundary. However, the proposal is instead for a driveway between the bay window and the boundary. The driveway does not provide any landscape setback to the boundary, contrary to the DCP requirement of 0.6 metres, which could assist in mitigating the privacy impact. There are a number of poor privacy relationships between dwellings within the development and neighbours at 2, 6, 10, 12 and 14 Marie Dodd Crescent, 8, 10, 10A Coogarah Street, and 78 and 80 Townson Street. The amenity of neighbours, notably in terms of solar access, is not well protected. It is apparent that there may be an inherent conflict between landscaping for privacy and landscaping for solar access. For the reasons discussed above I am unable to support the proposal and believe that it should be significantly amended to address the issues raised. 85 Mr R B Shepherd, landscape architect stated that:- …the proposed development imposes an unreasonable impact on the neighbours and the locality. Further, it is held that there is insufficient consideration of the heritage item in the streetscape open space, or in the western portion of the site. To meet the statutory requirements of the Council, the design proposals should be revised to address the design issues and concerns made in this statement. 86 In oral evidence Mr Shepherd said that it would be unlikely that a dense hedge would be obtained through the landscaping as proposed. Mr Shepherd said that whilst he expected some development would occur on the land, the "linear nature" of the proposed landscaping left much to be desired. He considered that the proposed landscaping was quite contrary to the form and character of the landscaping of residences in the locality. 87 Mr Shepherd considered the proposal to be an over-development of the land and as a result it would not respect the character of the area. He considered the landscaping required a greater depth and layering to achieve the modulation of other gardens in the area. Generally, he considered the proposal to be inconsistent with the RDCP. 88 Mr P Thalis, architect for the applicant in his report concluded that:- …the Council's concerns about the proposed development are unfounded, and therefore do not constitute valid grounds for refusal of the Development Applications. The proposed development substantially complies with Kogarah Council's Residential DCP objectives, Locality Guide and performance controls. The departures from the DCP principally arise due to the presence of the heritage building on the site. The proposed site layout, character and dwelling design has been carefully considered in the context of the heritage building and neighbours. The plan has been prepared with extensive specialist input, which have been reported in the Development Application documentation. In my opinion, this proposal has been prepared with due consideration to its own positive contribution to the area. Given the successful integration of site planning issues and the existing urban setting, the architectural and landscape resolution embodied in the proposal, and their appropriateness to the site and locality, I believe that the project should be approved. 89 In oral evidence Mr Thalis stated in summary:- · the intention of the design was to protect privacy, both internally and externally, · various measures have been employed to achieve this end, including screened bedroom courtyards on the first floor of Townhouses No 5 and 6, low and high level windows that would be above eye height or below the fence line, obscure glazing to the lower part of some windows, screen planting and fencing, · the site coverage is 27.79% when calculated on the CAD plans, this figure was agreed to by the council's planning officers on two occasions, · if the drive were lowered by 500mm the slab over the driveway to the car park would be at or below the natural ground level, · he disagreed with the criticism of Mr Layman that the proposal would be of an inappropriate bulk and scale, · the proposal is below the site coverage requirements of the RDCP and the height of buildings is less than those nearby, assisted by the fact that there are no pitched roofs proposed, · the side and rear setbacks conform at ground floor level and the upper storey is proposed to be inset further from the boundaries, · Townhouses No 3 and 4 although slightly higher than permissible would 'marry in' with the scale and form of the existing building, and be in character, · given the height and design of the proposal there would be no overshadowing of the western neighbours properties after around 12.00 noon, · there would be no overshadowing of Nos 12 and 14 Marie Dodd Crescent, to the south caused by any of the proposed new buildings, · the proposed Townhouse No 3 would align with the dwelling at No 2 Marie Dodd Crescent, · fixed translucent or obscure glazing to 1.7m above floor level could be incorporated in the north facing windows of Townhouses No 5 and 6 and the south facing windows of the existing building and Townhouse No 7, to reduce further any overlooking, · Townhouse No 3 is aligned with No 2 Marie Dodd Crescent and views could be had to the roofs of dwellings to the south through the openings of the balconies to the east, · the RDCP would require the front setback to be that of the nearest of the two adjoining dwellings as is the case here, and even so the front setback is uncharacteristically large, · the balcony of Townhouse No 3 is setback a similar distance to the balcony of No 2 Marie Dodd Crescent, · there would be a minor view loss to the south from No 2 Marie Dodd Crescent, · there would be minimal view loss of the views to the east and south east of water from No 2 Marie Dodd Crescent, and · there would be a substantial area of open space provided to Townhouses No 5 and 6. 90 Dr R J Lamb, landscape and strategic planner, retained by the applicant stated in his report:- As far as visual impacts, scenic character, streetscape and visual amenity are concerned, I can find no substantive grounds on which to refuse the application. The building proposed is relevant to the context, the scale is within the range relevant to the locality, and the materials, details and character are to the established character of the area. The development is also sensitive to the location and the assess heritage value of the existing building and its setting, which are retained and conserved in a way relevant to their significance. The proposed development satisfies the objectives of LEP and the controls of the DCP that are relevant to the issues of the case. The development would not result in unacceptable amenity for the residents and the neighbouring dwellings or unacceptable levels of privacy and view sharing. 91 Mr G A Shiels, consultant town planner, who supported the application stated:- In my opinion, the proposed development is permissible with consent in Residential Zone 2(a) under Kogarah LEP 1998, as amended on 9 July 1999. The amended provisions are in accordance with the Council's objectives for pursuing infill development in the Residential 2(a) Zone on larger parcels of land, subject to the identified criteria. In addition, Clause 22A overrides the other provisions contained in the LEP. Interestingly, as the subject site is a Heritage Item, Clause 17 provides the Council and the Court with a wide discretion to approve any form of application that satisfies the criteria of that Clause. Notwithstanding this, I am of the opinion that the proposal satisfies all of the provisions contained in the LEP, as amended. In addition, I am of the opinion that the proposal satisfies the provisions contained in the Council's DCP. The DCP needs to be considered in light of the objectives, performance criteria and numeric standards. I am of the opinion that these provisions are reasonably satisfied by the proposed development. It is worth noting that there were two Issues Conferences held in the lead up to this appeal. These conferences embraced a constructive approach from both parties that resulted in a reduction in the number of issues to eight (8). Notably traffic and parking, stormwater, excavation, inappropriate loss of landscaping and the inadequacy of the drawings were withdrawn as issues in these proceedings. The remaining issues, I would submit, have been dealt with in some detail in this Statement of Evidence and in the other Statements of Evidence prepared by Graham Brooks, Jennifer Hill, Phillip Thalis and Dr Richard Lamb. In my opinion, the proposal is an appropriate infill development in this location, that has due regard to the existing heritage building and the surrounding neighbourhood. The proposal provides for additional housing in accordance with Council and DUAP's stated objectives, which makes better use of existing infrastructure. I would therefore commend this proposal to the Court for a favourable determination. 92 Mr D M Taylor, landscape architect, retained by the applicant concluded that:- Appropriate measures as nominated are to ensure that this proposal complements the locality, improving what is in principle a site that does not presently provide a suitable amenity to the existing house. The house's heritage significance lies in its interwar form, this not being reflected in its existing garden situation which lacks detail and variety that could be expected around this type of house. The present situation is not of a complementary form to the locality and does not form a positive amenity to the landscape of Blakehurst, known as the garden suburb. The proposal remedies this situation through the site planning which allows for suitable setbacks which incorporate and provide a variety of landscape form, colour and texture complementing the landscape patterns of the locality. This treatment will not only further enhance the character of the proposed development but the locality in general. In my opinion the proposed landscape scheme satisfies the objectives of the DCP. 93 In oral evidence Mr Taylor made the following observations:- · the mature height and spread of proposed plant material was determined by use of qualified texts and the Encyclopaedia Botanica was not used as this text assumed idealised rainforest conditions, · for example the Encyclopaedia Botanica suggests a mature height of 40m for the citriodora and the example on the site is at a mature height of around 10m, · the mature height and spread of the proposed plant material is reasonable given the south easterly exposure, soil and nutriment conditions, · the elatas, soft wooded trees, would be "topped off" by the prevailing winds, and the indicated mature height is reasonable, · the angophoras have an open canopy and above the layering of the plant material would allow filtered sunlight to pass, · contrary to the evidence of Mr R B Shepherd, sunlight would penetrate the northern courtyards of Townhouses No 5 and 6, · headlight glare would be reduced by the proposed planting, the level of the southern driveway and the presence of a 1.8m high fence, · the plant material is designed to have regard to the life span of various species and the elatas would be expected to live for 7 to 8 years and be replaced over time with other species, 94 Mr G L Brooks, heritage architect, concluded that the application should be approved on heritage grounds. His evidence may be summarised as follows:- · Part demolition and alteration of the circa 1890s residence and remnant garden is considered acceptable in consideration of the loss of integrity of original fabric and planning, · The new design is considered to be an appropriate architectural response to the particular constraints of the site and the requirement for a small scale residential project. 95 In oral evidence he supported the application in summary as follows:- · the height excess of around 500 mm to 900 mm along the southern side of Townhouses 3 and 4 would not adversely impact on the heritage items being the 'Braeside Castle', · the flat roofed design of the proposed townhouses is appropriate and would relate to the 'geometric architecture' of the retained portion of the heritage item, · the new buildings being lower in height than the existing building is appropriate and fits in with the old in a sympathetic manner, and · a pitched roof form would not be correct and the proposed geometric form is right. 96 A report in Exhibit 9 was received from Ms Hill, heritage consultant and she was not required to give any oral evidence. Ms Hill had prepared a statement of heritage impact for the 'Braeside Castle', concluding that '…the proposal does not impact on the heritage significance' and '…the proposed development satisfies the criteria pursuant to Clause 17(1), 17(3), 17(9)' of the KLEP. 97 The development application had been referred to the NSW Heritage Office by the council and by letter dated 6 February 2001 in Exhibit 29, that organisation stated, '…the Heritage Council will be happy for the application to be determined by Kogarah Council in consultation with Council's Heritage Advisor, Mr Jon Mathias.' 98 Mr J Mathias in a memorandum dated 2 February 2001 at tab 12 Exhibit D, addressed the heritage impacts on item; heritage impacts on grounds; architectural/design impacts; and expressed the opinion:- …these proposals represent a carefully though out design of quality that extends the modernist architectural style of the item that has been associated with this site for a long time. The discrete positioning of private open spaces, the excellent landscaping and unobtrusive parking arrangements will make a very positive contribution to the architectural stock of the area. Findings 99 The proposal is permissible with consent in the Residential 2(a) zone pursuant to cl 22A of the KLEP. This clause has the objective to encourage the provision of infill development. 100 The proposal satisfies and meets the criteria of cl 17 of the KLEP as detailed in the heritage consultant's reports and in particular the evidence of Ms Hill, which is uncontested. 102 Contrary to the submissions of Mr Berveling (solicitor for the council), I am satisfied that only one of the above criteria would need to be satisfied. I do not read the use of the word "or" as inferring the conjunctive consistent with accepted principles of statutory interpretation: see Colon Peaks Mining Co No Liability v Wollondilly Shire Council (1911) 13 CLR 438 . 103 Thus the proposal must not have a site coverage of greater than 30% or it must comply with the relevant DCP, which in this case is the RDCP. 104 In respect of the site coverage there was disagreement between the parties as to the calculations. Mr Layman was of the opinion that the site coverage would be 33.97% if the covered area of the driveway to the south of the garages to Townhouses 5 and 6 and the covered driveway to the north of Townhouse 3 and 4 were included. He considered that this basement area is a 'ground floor' and enclosed by walls and thus would be included in the site coverage under the KLEP. He agreed that if that part of the covered driveway which has a roof below ground level to the north of Townhouses 3 and 4 were excluded from the calculation as not being a 'ground floor', the site coverage would be 32.16%, as shown in the calculations in Exhibit J. 105 Mr Layman was the only consultant who suggested such application of the definition. On two previous occasions the council's officers in reporting on the proposal calculated the coverage at the ground floor as shown in the drawing prepared by Mr Thalis in the plan entitled Site Coverage Breakdown in Exhibit 3 as 27.79%. 106 Assuming the garage level is considered as a 'ground floor', as suggested by Mr Layman and as submitted by Mr Berveling, and if the open-to-the-air driveway areas in front of the garages to Townhouses 5 and 6 and 3 and 4 are excluded as being not enclosed, the site coverage would be less than 30%. Such calculation is made by deducting the area of the covered but open-to-the-air part of the driveway from the calculation of Mr Layman of 32.16%. The resultant figures are either 29.92% or 28.81%, depending on those areas which are excluded as shown in the plans and schedules in Exhibit 28. 107 Mr Berveling suggested that this approach is fraught with difficulty. He submits that if it is proposed to enclose the southern side of the driveway to Townhouses No 5 and 6 with louvres, the driveway should be included as part of the enclosed area to calculate site coverage. The architectural drawing of the cross-section through this part of the driveway shows no louvres but the architectural plan indicates the provision of louvres by the nomenclature "LV". Mr Webster, counsel for the applicant, indicated that his client would agree to a condition deleting the notation of louvres as shown on the architectural plan. This would remove that part of the driveway from inclusion in site coverage. The deletion of the louvres would ensure that no structure, in the nature of a wall, would be required to support the louvres. If the louvres and their supporting wall were deleted, the external enclosing wall as referred to in the definition of site coverage contained in Pt 7 of the RDCP would be the outer face of the garage doors as shown in the diagram in the RDCP. 108 Mr Webster also indicated that the applicant would be prepared to submit to a condition requiring the lowering of the driveway 500 mm so that the roof over the driveway could be lowered to below natural ground level, if the Court were concerned that the site coverage might be exceeded. The basement level would then not constitute part of the 'ground floor' and thus the site coverage would only comprise the area enclosed by the external walls of the nominated ground floor of the buildings. 109 I consider that such a lowering of the driveway is not necessary and I accept the submissions of Mr Webster that the proposal complies with the maximum site coverage of 30% and thus would satisfy the first of the two subclauses of 22A(9) of the KLEP. Thus I accept that the first subclause would be satisfied if the calculation were based on the nominated ground floor site coverage of 27.79% or in the alternative, if the basement were considered as the 'ground floor' for the calculation of site coverage, the open-to-the-air parts of the driveway could be excluded from calculation, thus giving a figure of either 29.91% or 28.81%. 111 The proposal would comply with the minimum requirements of the RDCP including; total site area of 1,500 m2; minimum site area per dwelling of 300 m2; boundary setbacks; minimum private open space of 40 m2 per dwelling; minimum communal open space of 50 m2 per dwelling; maximum impervious area of 55% or 1586.75 m2 of site area; car parking requirements; and storage requirements. 112 Despite the proposal failing to comply numerically with the building height requirement of 'eaves height', it could be seen as complying with the objectives of building height, if the physical relationship with the retained heritage building is taken into account. Council Issue No 1-Whether the proposed development is permissible within the 2(a) Residential (Low Density) Zone, pursuant to Kogarah Local Environmental Plan 1998 (LEP) 113 On 9 July 1999, amendment 2 was inserted into the KLEP with the objective '…to provide opportunities for a compatible mix of dwelling types in localities within the Residential 2(a) Zone.' 114 Mr Shiels suggests that this objective:- …was identified in the Council's Housing Strategy and Supplementary Housing Strategy Update which was submitted to DUAP in response to Urban Consolidation Initiatives. 115 Clause 22A of the KLEP has the effect, despite the other provisions of the KLEP, of overriding all other provisions in the KLEP, including the objectives of the Residential 2(a) zone. 116 The RDCP comprises three parts for each identified standard, including: objectives, performance criteria, and performance measures. The proposal complies with the requirements of the RDCP except that the southern driveway is closer than required to the existing building for a distance of approximately 4 m. 119 Clause 17 of the KLEP contains heritage incentives to restore and conserve heritage items. The proposal retains the important portion of the regionally significant heritage item being the 'Braeside Castle', and generally complies with the other requirements of that clause. 119 Thus I am satisfied that the proposed development is permissible within the 2(a) Residential (Low Density) Zone, under the KLEP. Council Issue No 2-Whether the proposal is contrary to the objectives of 2(a) Residential (Low Density) Zone, pursuant to the LEP. 120 Prior to the hearing the parties reached agreement that the proposal satisfied Objective (a) of the Residential zone 2(a) of the KLEP. Objective (c) is not relevant. There was no agreement in respect of Objective (b). 121 Mr Shiels was of the opinion that:- …the proposal satisfies objective (b) as it maintains a low density environment that is characterised by detached dwellings. When viewed from the street, there will be the existing dwelling and proposed Townhouse No 3 which will both have substantial setbacks and additional landscaping. They will present as a cohesive element that is compatible with the dwellings, as viewed from Marie Dodd Crescent. In addition, as I have stated, Clause 22A has the effect of overriding other provisions in this plan. It seems to me that 22A was introduced by Council under the auspices of DUAP, to encourage the type of medium density development that comprises this application. 122 Mr Layman argued to the contrary, citing the zone objective, '…to maintain the amenity and low density environment of areas predominantly characterised by detached dwelling houses.' He considered that '…the proposal does not maintain the amenity of neighbours in a number of places. View loss, privacy loss and loss of solar access impact on existing and proposed dwellings.' 123 I accept the evidence of Mr Shiels. I am satisfied that the proposal has been designed to respect the privacy of adjoining residents and due to its design the proposal would not unduly overshadow neighbouring properties. View loss has been kept to a minimum. Council Issue No 5-Whether the proposal complies with Locality 3 Blakehurst (South) in the Locality Guide Section of the Kogarah Better Home Design Guide, Residential DCP, and the height, setback and other requirements in the Elements of Good Design of the Kogarah Better Home Design Guide, Residential DCP. 124 In respect of height, it was agreed that there were two areas of numeric non-compliance. The first related to the existing building and this was not seen as a concern as it is an item of heritage. It would be inappropriate to require an existing heritage building to comply with the council's height requirements. 125 The second area of numeric non-compliance would be the southern wall of Townhouses 3 and 4, and would extend along that wall with the non-compliance between 500 mm and 900 mm. Such wall would be located about 13.5 m from the northern boundary (southern boundary of 2 Marie Dodd Crescent), 20.5 m from the southern boundary (northern boundary of 6 Marie Dodd Crescent) and 4.5 m from the existing item of heritage. The non-complying wall in Townhouses 3 and 4 would be near to, and relate well to and be complementary to that part of the existing heritage building that would remain. 128 I accept the evidence of Mr Brooks that the proposal would complement the form, scale and geometric architecture of the existing heritage building and therefore would assist in enhancing the neighbourhood character. Also, I accept the evidence of Messrs Thalis and Brooks that the existing and the proposed building form would be satisfactory in the streetscape. 129 When viewed from the street, proposed Townhouse No 3 would have a parapet height of RL 31.0 m at the south-eastern corner, and the existing building is RL 32.27 m and RL 34.03 m at the turret. Accordingly Townhouse 3 will be lower than the existing building. 130 Number 2 Marie Dodd Crescent, to the north of the proposed development has a ridge at RL 34.84m and thus the proposed Townhouse No 3 would be lower in overall height than that building. The design and proportions of this section of Townhouse No 3 satisfy the criteria and would complement the streetscape. I am satisfied that this relatively minor numeric non-compliance is acceptable. 132 The parties have agreed that the proposal satisfies the side and rear setbacks from the various boundaries, particularly since the setbacks for Townhouses No 3 and 4 were slightly modified and set back an additional 400mm to provide a total setback of 4 m. The council's reconsideration pursuant to s 82A assessment under the Environmental Planing and Assessment Act 1979 ("the EP&A Act") also noted that the proposal complied with the side and rear setback requirements. 135 Pursuant to s 5.1 of the RCDP (building setbacks), the minimum front setback is to be 6m where the adjacent building is setback greater than 9m or more. Where the front setbacks of neighbouring developments are not consistent, the development closest to the street should be used as the benchmark. The applicant has adopted such formula for this proposal. 136 Number 2 Marie Dodd Crescent is set back approximately 20 m from the street boundary, with sections of that building protruding as close as 15m. Number 6 Marie Dodd Crescent is set back 7.6 m from the eastern street boundary. Townhouse No 3 is proposed to be set back about 20 m from the eastern street boundary, while the eastern terrace balconies are to be set back 17.4 m and thus would respect the setback to Marie Dodd Crescent of neighbouring properties. 134 The council submits that the street setback of Townhouse 3 is inappropriate. The proposed setback would however be between the setback of dwellings 2 and 6 Marie Dodd Crescent as required by the RDCP. 137 I am satisfied that the front setback of Townhouse 3 would complement and respect the existing heritage building, and fit well in the streetscape. In this regard I accept the evidence of Messrs Thalis, Shiels, and Brooks. 139 I am satisfied that the proposal would respect the height, setback and other requirements of the RDCP. The minor numeric non-compliances in relation to height would not result in any adverse effects on neighbours and would satisfy the objectives and performance criteria contained in the RDCP. Council Issue No 6-Detrimental impact of proposed development on heritage item of regional significance on site, namely house and garden. 140 Mr Brooks in this respect was of the opinion that:- …the objectives of Clause 5.9 of the Kogarah DCP are met by the proposed development. It will ensure that the environmental and cultural heritage of the site and of Kogarah generally are protected and enhanced, while ensuring that the proposed development is sympathetic to the heritage item. The Performance Criteria that support these Objectives are also met. · The heritage building will be efficiently used in an on-going manner. · The new development respects the architectural character of the heritage item, while complimenting [sic] and enhancing its significance and that of its setting. · While there are no heritage landscaping features that need to be retained, the proposal does retain and enhance the front garden character and former carriage loop. · The new town house development compliments [sic] the streetscape character of the Foreshore Scenic Protection Area in which the property is situated. · The new development does not dominate or overwhelm the streetscape contribution made by the existing house or the adjoining houses. 141 I am satisfied that the refurbishment of the existing heritage building and the erection of townhouses of the same style nearby would enhance the existing building and its setting. Council consents to the demolition of portion of the existing heritage item and there is no constraint upon the development of the curtilage suggested by council. Council Issue No 7-Excessive bulk and scale of proposed development. 143 Indicia of bulk and scale includes compliance with the building envelope, site coverage and landscaped area provisions contained in the RDCP. The objectives and performance criteria of bulk and scale are met by the proposal. 144 Mr Shiels was of the opinion that the proposal:- …satisfies the other related building envelope parameters contained in Council's DCP that relate to bulk and scale. Accordingly, in my view it cannot reasonably be argued that the proposal is excessive in these terms. 145 Mr Layman was of the opinion that:- This issue is inter-related with issues 2 and 5. The existing dwelling to be altered, though mostly two-storeyed, is large in scale. However, it is set in spacious grounds, proportionate to the scale of the built form creating equilibrium between the two. Now the proposal seeks to significantly change the balance, filling the available open space with architecturally consistent, yet similarly bulky new development. Townhouses No 3 and 4 exceed the Residential DCP height control. The enclosure of terraces reinforces the perception of bulk by the development form of two storeys over above ground parking level. This development form is inappropriate in the low density locality and is not consistent with zone objectives. 146 I reject the views of Mr Layman in this regard and accept the opinion of Mr Shiels. I am satisfied that the proposal would meet the objectives and criteria of building envelope provisions in regard to bulk and scale, and that the proposal is appropriate infill in this low density residential area. Council Issue No.8-Whether the proposal will have a detrimental impact on the privacy and amenity of the neighbours. 147 Section 5.5 in the RDCP relates to privacy, safety and security. Mr Shiels identified two competing objectives of the proposal, as follows:- 1 To ensure the siting and design of buildings provides a high level of visual and acoustical privacy for residents and neighbours in dwellings and private open spaces, AND 2 To provide personal security, and security of property, for residents and visitors and enhance the perception of community safety. 148 Mr Shiels also referred to the performance criteria for privacy under the RDCP which provides:- In relation to privacy (visual and acoustical) buildings are to be designed and located to minimise: · direct overlooking of main living areas and private open spaces, · external noise reaching habitable rooms and private open spaces, particularly where they are located close to high noise sources such as busy roads, railway lines and industrial activity, the transmission of sound and vibration through the building, · buildings setbacks should provide enough space for residents to have a sense of adequate visual and acoustic privacy in relation to rooms fronting driveways, accessways, paths and public streets, · active areas in yards and the location of noise generators, such as pool pumps, pools, spas and air conditioning units, should be placed away from boundaries and/or screened to reduce noise. 150 The safety and security performance criteria states:- In relation to safety and security, buildings should be designed to: · enable residents to survey streets, public areas and approaches to dwelling entries, provide adequate lighting to all paths, accessways, parking areas and building entries, reduce the potential for crime, vandalism and fear. 151 I accept the evidence of Mr Shiels that the proposal would meet these performance criteria. 152 Mr Shiels also commented:- Observation of public areas, approaches to dwellings and paths are provided for in the design. There is every opportunity to ensure that crime, vandalism and fear would be minimised by the opportunity of residents to observe strangers. While it is desirable to have privacy in some aspects of urban living, some degree of overlooking is desirable if there is to be an important element of surveillance. For example, privacy screens are provided at the first floor terrace of Townhouse No.2 and Townhouse No.4 to prevent direct overlooking to the private courtyard of Townhouse No.7. However, those terraced areas have direct and indirect opportunities to overlook the communal open space areas. In my view, this is highly desirable. 153 It is proposed that the first floor terraces of Townhouses No 5 and 6 be enclosed on their eastern and western sides with privacy screens and thus there would be only limited opportunity to look obliquely to the open space areas below of the same dwelling and to other areas beyond. 154 I accept the evidence of Mr Shiels that the screens would provide an appropriate level of privacy between the existing and proposed dwellings, while still allowing for a selective amount of surveillance and security. 155 The front terrace and balconies of Townhouses No 1 and 3 would afford the opportunity to look towards the eastern communal areas and the street. This would provide for persons within those dwellings to provide a level of surveillance, while not intruding into neighbour's private spaces. 156 I am satisfied that the proposal would achieve an appropriate balance between privacy and security/surveillance. Council Issue No 10-Inadequate provision of landscaping and inappropriate tree loss. 157 The RDCP requires a minimum of 40 m2, at ground level, for private open space. The proposal would meet the required 280 m2 of private open space for the total of seven townhouses. 158 An area of open space of 886 m2 is proposed, of which 805 m2 is to be landscaped at ground level. An area of 839m2 of communal open space in the form of a central courtyard and landscaping at the front of the site is also proposed. Private open space for each dwelling in the form of courtyards at ground level and upper level terraces are also proposed. 159 Mr Taylor was of the opinion that the proposed landscape scheme satisfies the objectives of the RDCP. 160 Mr Shiels also points out that two new trees would be planted at the rear of the site which:- …will provide a focus point and centre figure at the middle of the communal open space, while providing internal screening between townhouses and surrounding neighbours. The setback areas will contain a landscaping buffer along the boundaries of the site. 161 I am satisfied that the proposal would be adequately landscaped. I am also satisfied contrary to the evidence of Messrs Shepherd and Layman and that there would be sufficient depth to that landscaping with the central courtyard and the front yard giving an additional visual depth. Council Issue 13-Inadequacy and inaccuracy of plans and supporting information (including inconsistency of elevations and section, driveway access including gradients is not legible, groundline at building perimeter is not adequately described on drawings, and general inadequacy and lack of clarity of elevations in sections). 162 This issue was not strongly pursued during the hearing. The documentation of this proposal is impressive and clearly indicates the scope of the development. Mr Layman indicated that this issue is no longer pressed. I would not refuse the application on this ground. Council Issue No 14-Whether the proposal is reasonable, having regard to the issues raised by objectors, and whether the proposal is in the public interest. 163 The neighbours objections crystallised into the following issues: the bushland setting; traffic and parking; over development; character; privacy and noise; and loss of views to Shipwrights Bay and Georges River. 164 There is very little vegetation or bushland setting on the subject land. The application proposes to augment the existing vegetation with additional native vegetation. Thus I am satisfied that the proposed landscaping would enhance the bushland setting of the area. 165 Both the council and the applicant's traffic experts have considered traffic and parking and suggested modifications to the proposal have been embraced by the applicant. It is now common ground between the parties that traffic and parking is no longer an issue. I am satisfied on the evidence that this would not be a reason for refusal of the application and that the proposal's traffic and parking demands would not adversely affect the roads in the vicinity. 166 The architect has sought to achieve a character that would complement the existing building and relate well to the surrounding area. I am satisfied that the character of this proposal would be appropriate. 167 The proposal easily satisfies the planning controls that relate to density of development. Mr Shiels suggests that the number of dwellings "…could potentially be increased by two dwellings under the planning controls." 168 I am satisfied that the proposal meets the normal indicia of density in terms of site coverage, landscaped area, setbacks and height. 169 I am satisfied that the proposal has been designed to satisfactorily address acoustic and visual privacy internally and in relation to neighbours. 170 I am satisfied that the proposal has been designed to maintain reasonable view corridors and the primary view to the south-east and south-south-east from the corner window of 2 Marie Dodd Crescent has been maintained. 171 I am satisfied that the proposal would provide an appropriate balance between surveillance, safety and privacy between the proposed dwellings and the adjoining and surrounding neighbours. Impact upon amenity 172 The Court has carefully considered the opinions of neighbours, many of whom gave evidence in opposition to the proposal. Undoubtedly, their aspects and in some cases, views will be affected in varying degrees by the presence of buildings in what has been hitherto undeveloped space. 172 The Court is satisfied that the architect has given careful consideration to the amenity of neighbours. The proposed buildings in the northern portion of the site would be positioned so that only the first floor would be above the level of the top of the common fence. The buildings would be set back to permit appropriate landscaping and the visual impact of the proposal has been reduced by inset sections and raised sills. Each townhouse has been thoughtfully designed to minimise overlooking of adjoining properties. The setbacks from boundaries, design of the buildings and layout would result in a development which has appropriate regard for amenity. 173 The Court is also sympathetic to the opinions of the residents. It is apparent that they have had the benefit of substantial open space surrounding the rear yards of their homes. However the Court could only reject the proposal upon this ground if it considered that the impact of the proposal upon the amenity was unacceptable. The Court is also obliged to consider that the proposal complies with the planning requirements and the fact that the site readily qualifies for this form of development having regard to the recent amendment to the KLEP implemented specifically for this purpose by the council in the exercise of its planning powers. 174 The applicant has prepared a design which does not over-develop the site and which has minimised the loss of amenity to the surrounding neighbours. 175 Having carefully considered the application under s 79C of the EP&A Act I am satisfied that the application may be approved subject to conditions. 176 The conditions are those in Exhibit P as amended during the hearing to include those in Exhibit 30 and an additional Condition No 63 requiring the removal of the louvres along the driveway to Townhouses 5 and 6. Orders 177 For the reasons given above, the Court orders that: 1. The appeal under s 97 of the EP&A Act be upheld. 2. Development application 670/2000 lodged with the respondent council on 1 December 2000 to erect seven townhouses, (as amended to include the demolition of part of the existing building), and to strata subdivide, at 4 Marie Dodd Crescent, Blakehurst, being Lot A DP 29102, be approved subject to Conditions 1 to 63 in Annexure A. 3. The exhibits with the exception of Exhibits C, F, G, J, L, P, 2, 3, 4, 6, 8, 9, 10, 15, 16, 18, 26, 27, 28, 29, 30, may be returned. Conditions of development consent Annexure A Sangha Holdings Pty Limited v Kogarah Council No 4 Marie Dodd Crescent, Blakehurst – DA 670/00 That Council as the Consent Authority, pursuant to Section 80(1)(a) of the Environmental Planning and Assessment Act 1979, grants a consent to Development Application 670/00 for the conversion of an existing dwelling house into two (2) townhouses and the construction of three (3) buildings, two containing two (2) townhouses and one containing a single townhouse with basement car parking and strata subdivision in seven (7) lots at 4 Marie Dodd Crescent, Blakehurst, subject to the following conditions: Conditions of Consent 1. The building subject of this approval being carried out in accordance with the plans and specifications accompanying Development Application 670/00 submitted 1 December 2000 and identified by DA00-DA10 Issue No. DA2A dated 21 May 2001, in Exhibit 10, by Hill Thalis Architecture and Urban Projects and landscape plan LA01C dated 21 May 2001, in Exhibit 18, and landscape plan in Exhibit 26, both by D M Taylor Landscape Architects Pty Limited except where amended by the conditions specified hereunder. 2. The erection of a building in accordance with a Development Consent must not be commenced until: * detailed plans and specifications of the building have been endorsed with a construction certificate by: - Council; or - an accredited certifier. * the person having the benefit of the development consent has: - appointed a Principal Certifying Authority (PCA); and - notified Council (if Council is not the PCA) in writing of the appointment; and - given at least 2 days notice to Council of their intention to commence the erection of the building. 3. Any Construction Certificate issued in respect of this Development Consent only remains valid while the Development Consent is valid. 4. If the building is designed using Building Code of Australia (BCA) performance criteria, documentary evidence of compliance with the relevant BCA objectives is to be provided to Council with the Construction Certificate. 5. Prior to the issue of any Construction Certificate for this development the following is required: * Payment of a restoration deposit: $4,385.00 * Payment of a Long Service Levy of: $1,880.00 * Payment of a footpath levels fee of: $165.00 * Payment of Section 94 Contributions of: - Roads & Traffic: $125.84 - Local Open Space Embellishment: $26,026.00 - District Open Space Embellishment: $9,299.14 * Provision of details for the Australian Bureau of Statistics. 6. The approved plans relating to any Construction Certificate issued in respect of this Development Consent must be submitted to Sydney Water at least fourteen (14) days prior to commencement of work. The closest office of Sydney Water is at 564 Princes Highway, Rockdale. 7. Prior to the commencement of works, the Principal Certifying Authority must be informed in writing pursuant to Clause 29 of the Local Government (Approvals) Regulation NSW 1993 of: * the name and contractor licence number of the licensee who has contracted to do or intends to do the work; or * the name and permit number of the owner-builder who intends to do the work. Further, if a contract is entered into for the work to be done by a different licensee or arrangement for doing the work are otherwise changed, the Principal Certifying Authority is to be immediately informed in writing of sufficient particulars for it to update its records. 8. Approval is subject to the condition that the builder or person who does the residential building work complies with the applicable requirements of Part 6 of the Home Building Act 1989 whereby a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the Principal Certifying Authority that they have complied with the applicable requirements of Part 6. The Principal Certifying Authority must not carry out any inspections in relation to the building works until a copy of the insurance certificate is received, and a copy is given to Council. 9. The following list of inspections should be the minimum number carried out during the course of this development and prior to the issue of any Occupation Certificate: * Erosion and sediment control measures. * Earthworks/excavation. * Building set out. * Concrete reinforcement. * Timber and/or steel framework. * Wet areas. * Stormwater disposal. * Mechanical work. * Hydraulic work. * Work associated with driveways and parking bays, including pavement and finishing. * Landscaping work. * External building finishes. * Completion/Final. 10. A Compliance Certificate shall be issued prior to occupation and use of the building certifying that all building works and associated development have been constructed in accordance with the development consent and construction certificate. 11. Underground pipes and cables may be affected by excavation works. Excavators are requested to contact NSW Dial Before You Dig Service by phoning 1100 at least two (2) days before work commences. 12. No trees as defined by Council's Tree Preservation Order being removed from the site without the prior written approval of Council. 13. No work in connection with the demolition of existing buildings: excavation or earth works on or adjacent to the site; use of power operated plant such as compressors, jack hammers, bulldozers, excavators and/or loaders, woodworking machines, (ie, saws, planers, etc.) use of explosive fixing guns, use of concrete or cement mixers, floating and/or trowelling machines, vibrators, concrete delivery wagons, hosts or winches, use of welding and/or rivetting machines and the like, removal or placing of concrete forms; placing or tying of steel reinforcement of structural members; fixing of timber framework; stacking or handling of bricks or blocks; or any other building activity involving objectionable noise being carried out between the hours of 7.00 pm to 7.00 am, Mondays to Saturdays inclusive and no such work being carried out on Sundays, Good Friday and Christmas Day. 14. This Development Application approval or any related Construction Certificate does not allow for any form of road or footpath opening to be made external to the subject property boundary. Should such an opening be required a separate application will have to be approved through the Engineering Services Section. Applications may be made at Council's Customer Service Centre at 84 Railway Parade, Kogarah. 15. Erosion and sediment control measures are to be undertaken during the course of construction, in accordance with "Sediment and Erosion Control Guidelines". Failure to implement and maintain appropriate measures will result in a $750.00 Penalty Infringement Notice (individual) or $1,500.00 (corporations) being issued and/or the incurring of a maximum penalty of $120,000.00 (individual) and $250,000.00 (corporation) through the Land and Environment Court. 16. All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. 17. All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property. 18. If the soil conditions require it: * retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided; and * adequate provision must be made for drainage. 19. If the work involved in the erection or demolition of a building: * is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or * involves the enclosure of a public place: - a hoarding or fence must be erected between the work site and the public place; - if necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place; - if the work site is likely to be hazardous to persons in the public place, it must be kept lit between sunset and sunrise; - any such hoarding, fence or awning is to be removed when the work has been completed. 20. A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out: * stating that unauthorised entry to the work site is prohibited; and * showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours; and * showing the name and telephone number of the builder or owner-builder, if not the same as (b); and * the licence number of the builder or permit number of the owner-builder. 21. Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. Each toilet provided: * must be a standard flushing toilet; and * must be connected: - to a public sewer; or - if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council; or - if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the Council. The provision of toilet facilities must be completed before any other work is commenced. 22. All building work must be carried out in accordance with the provisions of the Building Code of Australia, except where an exemption is in force under clause 80H or 80I of the Environmental Planning and Assessment Amendment Regulation 1998 subject to the terms of any condition or requirement referred to in clause 80H(6) or 80I(4). 23. The owner and/or builder is requested to install approved smoke detectors at suitable locations within the building. For further advice please contact Council's Development & Health Department. 24. A suitable clothes line facility being provided within the courtyard to each villa/townhouse. 25. Television antennas being provided and located where possible within the roof space and all ducting associated with the antennas being concealed. 26. The site and size of proposed household mail boxes being in accordance with the requirements of Australia Post. 27. The proposed building not being erected at a height greater than that indicated on the approved plan. 28. Any lighting of the premises shall be installed so as to avoid annoyance to the occupants of adjoining premises or glare to motorists on nearby roads. Flashing lights or moving signs are prohibited. 29. Pursuant to Section 94 of the Environmental Planning and Assessment Act 1979, payment shall be made to Council of $125.84 as a contribution for Roads and Traffic Management facilities levied under Section 94 Contributions Plan No. 1 – Roads and Traffic Management. This Plan may be inspected at the Kogarah Council Civic Centre, 2 Belgrave Street, Kogarah. The Section 94 Contribution is based on a potential additional population of 17.6 persons. This contribution will be indexed from the date of consent to allow for cost increases and must be paid prior to the issue of the required Construction Certificate/Subdivision Certificate. 30. Pursuant to Section 94 of the Environmental Planning and Assessment Act 1979, payment shall be made to Council of a contribution in respect of the following:- * Local Open Space Embellishment: $26,026.00 * District Open Space Embellishment: $9,299.14 TOTAL: $35,325.14 These amounts have been levied under Section 94 Contributions Plan No. 5 – Open Space – Residential Development. This Plan may be inspected at the Kogarah Council Civic Centre, 2 Belgrave Street, Kogarah. The Section 94 contribution is based on a potential additional population of 17.6 persons. This Contribution will be indexed from the date of consent to allow for cost increases and must be paid prior to the issue of the required Construction Certificate. 31. Pursuant to Section 94 of the Environmental Planning and Assessment Act 1979, payment shall be made to Council of $2,690.59 as a contribution for Library Facilities levied under Section 94 Contributions Plan No. 9 – Kogarah Libraries. This Plan may be inspected at the Kogarah Council Civic Centre, 2 Belgrave Street, Kogarah. The Section 94 contribution is based on a potential additional population of 17.6 persons. This contribution will be indexed from the date of consent to allow for cost increases and must be paid prior to the issue of the required Construction Certificate. 32. The proposed internal vehicular driveway being constructed in accordance with Council's standard gradient requirements in accordance with Australian Standard AS 2890.1. 33. All existing vehicular crossing adjacent to the subject premises that have become redundant shall be removed and the footway and kerb and gutter reinstated at the developer/applicant's expense. 34. The developer bearing the cost of the construction of two heavy duty driveways and open crossings, the closure of any redundant driveways plus all associated bitumen and turf restorations. In addition, the developer bearing the cost of restoring any roadway etc, damaged by public authorities in the course of providing services to the proposed development or by the developer during the course of construction. In this regard, the developer should provide a bond or Bank Guarantee of $4,385.00. 35. All roof water and service water from paved or concreted areas are to be disposed of in accordance with the stormwater details prepared by Harrison Friedmann & Associates dated 25 November 2000, subject to the following conditions: * a developer is to take out a road opening permit prior to any works across Council's reserve; * certification, by the design engineer, with regard to the stormwater treatment system is to be submitted to the Council at the completion of all drainage works; * pit form work is to be inspected prior to the pouring of concrete; * a works-as-executed plan, certified by the design engineer, is to be submitted to Council at the completion of all drainage works; * an inspection of the completed system is to be carried out by an accredited certifier; * a positive covenant is to be placed over the on-site detention system and stormwater treatment to ensure its maintenance and operation of the design capacity; and * regular inspections, cleaning and maintenance (every six months) on the detention and treatment systems are to be carried out. Such a requirement is to be incorporated into the positive covenant. 36. The Corymbia citriodora at the front of the property is to be retained. All other existing shrubs and trees are not significant and therefore may be removed to accommodate the proposed development. Conditions for retention are stated below. 37. The Corymbia citriodora at the front of the property shall be preserved and protected during construction and demolition. A protective fence (1.5 metres high) shall be erected around the base of the tree at minimum distance 2 metres. A layer of organic mulch 100 millimetres thick shall be placed over the protected area. There shall be no services directed through the drip line of the tree. 38. The Callistemon sp. on Council's nature strip in front of the proposed development shall be preserved and protected during construction and demolition. A protective fence (1.5 metres high) shall be erected around the base of the tree at a minimum distance of 3 metres. A layer of organic mulch 100 millimetres thick shall be replaced over the protected area. There shall be no soil, fill, spoilage, cutting or excavating within the protected area. There shall be no services directed through the drip line of the tree. 39. A street tree of similar species to that of the existing one shall be planted on the nature strip in front of the development. The tree shall be NATSPEC grown tree, as per the NATSPEC for "Purchasing Landscape Trees". The tree shall have a minimum pot/container size of 75 litres. * The cost of the tree shall be borne by the developer. * The tree shall be staked as per usual practice. * The tree shall be planted prior to the final building inspection. * The developer/owner shall contact service providers and Kogarah Council to identify all underground services prior to planting the tree. * The developer/owner shall incur all costs for damage to Council property, private property and any utility service. * The developer/owner and/or tradespersons working on the developer's behalf shall have a current Public Liability Insurance Policy valued to $10 million. * The work shall be done in accordance with all WorkCover Authority guidelines and requirements. * Barriers shall be used to secure the immediate area. * Signs shall be erected informing the public to keep clear of the site. * This area shall be cleaned up and left in a tidy state. 40. If any branches of neighbouring trees need to be pruned to accommodate the proposed development, a separate application shall be submitted in writing to Council, requesting permission to prune. In addition, the applicant shall notify the owner of the tree about the proposed pruning. No pruning work shall take place until a written confirmation from Council has been received. 41. The existing trees on the property can be pruned to accommodate the proposed development. Trees are to retain their shape, height and character after pruning. Dead wooding of canopy should be ensured. The canopy of tree can be raised until clearance is achieved. A qualified and experienced arborist should do pruning. 42. The planter boxes shall be constructed as per the details on the landscape plan. These shall have drainage cells, filter fabric and waterproofing membrane and shall drain to appropriately positioned drainage outlets. The planter boxes shall have a minimum depth of 600mm and minimum width of 600mm. 43. The garden beds shall be mulched using organic leaf/pine bark mulch or similar approved material. The mulch shall spread a minimum of 100 millimetres thick over the entire garden bed areas. 44. The ground cover plants shall be planted in accordance with the approved landscaping plan. 45. All plant material shall be of high quality, free of pests, diseases and any structural defects. 46. Advanced trees shall be staked using at least two hardwood stakes, 2 metres high x 50m x 50mm. These stakes shall be driven into the ground outside of the tree's rootball area. Hessian tie or similar shall be used to secure the trees. 47. An automatic irrigation system shall be installed along the entire planter box and garden bed areas. The system shall be designed to comply with AS 2698, AS2698.1-1994, AS2698.2-1985, AS2698.3-1990, Water Board regulations and any other relevant authorities. 48. The brick edging shall be placed as according to the landscape plan. 49. The turf shall be free of weeds, pests and disease. The area to be turfed shall be levelled prior to laying turf. The preparation shall be according to the landscape plan. The turf shall be butted flush and finished with a suitable top dressing material. 50. Walls separating sole occupancy units need to comply with the construction and Fire Resistance Levels (FRLs) required by [Volume 2, Section 3.7.1.8]. No changes to the plans are necessary to accommodate this. 51. A plan of management to Council's satisfaction in regard to the excavation to be carried out on site is to be lodged with the Construction Certificate. 52. That a Eucalyptus pilularis and Eucalyptus piperita be included in the plant schedule along the western boundary. 53. That demolition approval is granted for the partial demolition of the existing building in accordance with the approval plus and heritage impact assessment prepared by Architectural Projects to permit construction of the proposed development. 54. That dilapidation reports with respect to the following properties be lodged with the Construction Certificate, subject to the agreement of the owners: * 2, 6, 10, 12 and 14 Marie Dodd Crescent; * 76, 78 and 80 Townson Street. * 8, 10 and 10A Coogarah Street. 55. A rainwater collection tank is to be incorporated into the stormwater details prepared by Harrison Friedman & Associates dated 25 November 2000 and lodged with the Council with the Construction Certificate. 56. A new lapped and capped fence 1.8 metre in height shall be erected to replace the existing paling fence on the boundary with No 6 Marie Dodd Crescent. 57. The southern driveway of the subject premises to be amended to generally comply with the driveway realignment plan dated July 2001 by Hill Thalis. Details of the amendment to be lodged with the Council with the Construction Certificate in Exhibit 16, Annexure D. 58. No landscaping shall be carried out on the 600mm buffer on the southern side of the access driveway adjacent to Townhouses No 1 and 2 except in consultation with the owners of No 6 Marie Dodd Crescent. 59. The pittosporum tree on the northern boundary behind No 78 Townson Street to be retained in the landscape plan. 60. The windows to the north facing bedrooms of Townhouses No 5 and 6 shall have the lower half to be of fixed translucent glazing. 62. The windows to the south facing rooms on the ground floor of Townhouse No 7 shall have fixed translucent glazing in any part of the windows within 1.7 metres of the floor level. 63. That the louvres proposed along the southern side of the driveway to Townhouses No 5 and 6 be deleted and the natural rock outcrop be retained. Associate Judge NOTE: Any changes to the approved development may require formal approval from Council. At the very least, the Applicant/Developer is to consult with Council Officers prior to any changes being carried out. Failing to do so, may result in construction work delays or even the requirement to demolish any unauthorised work. NOTE: The attention of the Owner and Builder is drawn to the necessity for storing all building materials or waste containers within the confines of the site. The storage of such building materials, waste containers or equipment associated with the project upon the public roadway, including the pedestrian footway or unpaved verge, is prohibited. NOTE: The owner is requested to consider child safety catches on all cabinets within the home or unit that contain poisonous or flammable liquids. 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.