> Land and Environment Court of New South Wales CITATION : Colonial State Properties Pty Limited v Ku-ring-gai Municipal Council [2003] NSWLEC 236 Applicant: Colonial State Properties Pty Limited PARTIES : Respondent: Ku-ring-gai Municipal Council FILE NUMBER(S) : 10405 of 2003 CORAM: Moore C KEY ISSUES: Dual Occupancy :- Riparian zone Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Rivers and Foreshores Improvement Act 1948 State Environmental Planning Policy 53 Ku-ring-gai Planning Scheme Ordinance CASES CITED: Manzie v Willoughby City Council 96 LEC 26 DATES OF HEARING: 24 and 25 September 2003 DATE OF JUDGMENT: 10/10/2003 Mr G McKee, solicitor McKees Legal Solutions LEGAL REPRESENTATIVES: Mr P Rigg, solicitor Deacons JUDGMENT: - 1 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10405 of 2003 Moore C 10 October 2003 COLONIAL STATE PROPERTIES PTY LIMITED Applicant v KU-RING-GAI MUNICIPAL COUNCIL Respondent Judgment Introduction 1 On 5 December 2002, Roseth SC delivered his reasons for decision in matters 10264 and (1)0208 of 2002. Those proceedings involved the same parties as the present proceedings. The first of those matters related to a development application to subdivide lots 73 and 74 DP 749522 (part of a property known as 37 Kenthurst Road, St Ives that currently comprises lots 73 and 74 and lot 1 DP 777906, and lot 2 DP 777906) into four allotments, referred to as lots 81, 82, 83 and 84. The second of the matters dealt with an application for development approvals for housing on the four subdivided allotments and the other two existing allotments. It included an application pursuant to State Environmental Planning Policy 53 for the construction of a number of detached dual occupancy dwellings on five of the six resulting allotments. For reasons which are not presently relevant, the proposal for detached dual occupancy dwellings on approved Lot 83 was excluded from the matters dealt with by Roseth SC on that occasion. 2 This appeal arises from the deemed (and subsequent actual) refusal by the council of the subsequent Development Application 126/03 for detached dual occupancy dwellings on approved Lot 83. This allotment has an area of 1416 sq m including an access handle of 103 sq m. The senior commissioner's comments concerning approved Lot 83 3 In his reasons for decision, Roseth SC made three comments that touch upon the issues relevant to the present proceedings. The first of these appears in a paragraph 2 of his decision and is in parentheses. It reads: The application is for nine dwellings; however, there is space for a tenth . In the context of the present proceedings, the council impliedly requests me to interpret this comment as Roseth SC indicating, by necessary implication, that an eleventh dwelling would not be appropriate. 4 The second of the Roseth SC's comments appears in paragraph 30 of his reasons for decision and is in the following terms: Proposed Lot 83 contains a large riparian zone, to be noted on the title, so that any purchaser will know that part of the allotment cannot be built on. There is therefore no question of people buying land without being aware of the constraints. The formerly proposed Dwelling 7 has four bedrooms and a floor area of about 250m2. An allotment that can accommodate that kind of house is large enough, even in St Ives. In the context of the present proceedings, the council impliedly requests me to interpret this comment as Roseth SC indicating that proposed dwelling 7 was acceptable but that proposed dwelling 8 was not acceptable. The proposed dwellings 7 and 8 are those which are the subject of the present proceedings. 5 The third of Roseth SC's comments appears in paragraph 41 of his reasons for decision and is in the following terms: The proposal includes a ten-metre riparian zone along the Ku-ring-gai Creek, on which there can be no development and on which the conditions of consent require the native bushland to be re-generated. At the time the council first raised this issue, the proposal included two more dwellings, one of which extended into the riparian zone. The offending dwelling has now been deleted. It is clear from the terms of the Roseth SC's reasons that the offending dwelling referred to in this extract is the proposed dwelling 8. 6 Roseth SC's remarks are obiter. It is clear that such remarks in no way bind the Court in its consideration of any application in subsequent proceedings involving the same site and essentially the same issues: Manzie v Willoughby City Council 96 LEC 26. The proper approach to be taken is to consider this as an entirely fresh matter to be dealt with on the merits as presented in these proceedings. The regulatory framework 7 The proposed use is prohibited by the Ku-ring-Gai Planning Scheme Ordinance ("the Ordinance"). However, State Environmental Planning Policy 53 ("SEPP 53") has an overriding facultative provision in cl 4 which makes the proposal permissible. It was conceded on behalf of the council that no additional matters arose from Schedule 9 of the Ordinance that would not otherwise arise in testing the application against the provisions of SEPP 53 and the provisions of s 79C of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The issues 8 The council filed a formal statement issues on 6 June 2003. A number of the formal issues fell away during the course of the proceedings. The matters which remained to be determined were: o Whether the impact on the riparian zone of proposed dwelling 8 was acceptable; o Whether the private open space proposed for proposed dwelling 8 was acceptable; o Whether the impact of proposed dwelling 8 on the residents of 6 Douglas Street was acceptable; o Whether the view from Kenthurst Road of proposed dwelling 8 down the access driveway to it and other dwellings was acceptable; and o Whether appropriate visitor parking was being provided to proposed dwellings 7 and 8. 9 Although the last of these issues related to both the proposed dwellings on approved Lot 83, this issue was not strongly pressed by the council. As a consequence, the contested matters effectively relate to the acceptability of proposed dwelling 8. The witnesses 10 Evidence was given on behalf of the council by: o Mr Harvey Sanders, consultant town planner; o Mr Michael Perdicaris, an officer of the Department of Infrastructure, Planning and Natural Resources ("the Department") with responsibility for applications pursuant to the Rivers and Foreshores Improvement Act 1948; and o Dr R de Lambert, resident of 6 Douglas Street. Evidence was given on behalf of the applicant by: o Mr Andrew Minto, consultant town planner; and o Ms Narelle Sonter, landscape consultant. The riparian zone 11 Although there was some dispute between the council and the applicant as to which would be the appropriate Departmental letter to be considered in these proceedings [there being two options available], I have concluded, in light of the evidence given by Mr Perdicaris on behalf of the Department and the conclusions which I have come to based on that evidence, that the precise terms of a Departmental permit pursuant to the provisions of the Rivers and Foreshores Improvement Act is not relevant. I have reached this conclusion as it was clear Mr Perdicaris acknowledged that, if the appeal were to be upheld, a permit would be issued and it was made clear on the half of the applicant that the terms of such a permit would be acceptable. 12 However, the dispute over the provenance of the second of the Departmental letters (a dispute which does not required to be traversed given the conclusions which I have noted immediately above) did establish circumstances which required Mr Perdicaris to be called by the council to give evidence. After giving evidence concerning the provenance of this letter, Mr Perdicaris also gave general evidence concerning the issues relating to the riparian zone. 13 A number of uncontradicted propositions arose from this evidence. These were: o Departmental policy requires a ten metre riparian zone along waterways such as the creek traversing approved Lot 83; o the boundaries of such a zone are not inflexible and can be subject to a degree of averaging in a fashion somewhat analogous to a "give and take" rural fence; o such an approach had been taken in Departmental consideration of dwellings 4 and 11 which had been approved by Roseth SC in the earier proceedings; and o no formal structures or designated usable areas would be permitted within the riparian zone or accommodated in the revegetation plan required by the Department's standard conditions for a permit. The final one of these propositions is not relevant to the issue of the riparian zone itself but is relevant to and discussed in consideration of matters relating to the adequacy of private open space for proposed dwelling 8. 14 Mr Minto's evidence with respect to intrusion of proposed dwelling 8 into the riparian zone is that the proposed riparian buffer zone is sufficient and that the proposed development will not have an unacceptable impact on the Creek located on the site and on the surrounding riparian zone. He reaches these conclusions for a number of reasons. These are that: o the Department has responsibility for statutory control of such areas and it is satisfied with the proposal; o no objection was raised by the council's Development Control Engineer to the intrusion; and o the intrusion into the riparian zone is into a degraded area. 15 However, at the commencement of his oral evidence, he amended his written statement of evidence so that on page 15 of that statement appears a sentence which, as amended, reads: It is to be noted that the proposal encroaches to a significant extent within the nominated 10 m setback but provides a riparian zone in other parts that extends beyond the 10 m line. 16 Although the council's Development Control Engineer raised no objection to the proposal, this is simply a notation in the council report with no discussion as to why this conclusion was reached. I therefore do not consider that this provides any significant assistance to the applicant. 17 Mr Sanders, on the other hand, seeks to rely on the earlier decision of Roseth SC as setting the appropriate boundaries for the riparian zone in terms of its cartographic delineation. 18 In addition, it was his evidence that the proposed intrusion into the riparian zone did not reflect an appropriate consideration of the constraints on the site imposed by the zone and that, as a consequence, the siting of proposed dwelling 8 did not satisfy the good design principles called up by SEPP 53. 19 The comfort sought to be taken from the earlier decision of Roseth SC is inappropriate as noted at the commencement of this judgment. However, the now existing SEPP 53 approval given by Roseth SC does provide the relevant planning context within which the present proposal is to be assessed. 20 It is clear from the approved plans for dwellings 4 and 11 that each of them intrudes some distance into the nominal 10 m riparian zone. It is also obvious that the additional areas for each of these dwellings which have been designated as the riparian zone in the earlier approval have been adjusted consistently with the second propositions arising from Mr Perdicaris's evidence as noted in the third of these propositions. It is also obvious that the areas added to the riparian zone in each instance are larger in total, for the curtilage of each of these dwellings, than the areas removed from the zone. 21 Although I apprehend Mr Sander's evidence to conclude, effectively, that a combination of cl 15(b)(i) and cl 31 of SEPP 53 had not been adequately considered and responded to by the applicant thus rendering inappropriate proposed dwelling 8, I am not satisfied that such a conclusion is warranted on its own. However, the siting of proposed dwelling 8 also needs to be assessed against the provisions of s 79C of the EP&A Act – in particular against s 79C(1)(b) and (c). 22 S 79C(1)(b) and (c) in combination with those SEPP 53 provisions, do provide an appropriate test in the present instance. 23 When tested against these provisions, the siting of proposed dwelling 8 is exposed as being fatally flawed. The fundamental flaw arises in the context of and consistent with Mr Minto's concession that the proposed intrusion into the riparian zone is a significant one. I am satisfied that the planning context set by Roseth SC's decision is one where modest intrusion into the riparian zone coupled with modest compensating areas being added to the zone is appropriate. Roseth SC has determined that this would be an appropriate approach to take for the dwellings on the adjacent sites. The evidence available from the view and the nature of the topography of approved Lot 83 leads me to the conclusion that a similar approach is appropriate for this allotment. Indeed, the presence of the significantly sized pool in the creek at approximately the midpoint of its traversal of approved Lot 83 is an additional topographic factor reinforcing the appropriateness of confining any intrusion into the riparian zone to a minor intrusion. 24 The additional areas of riparian zone for the adjacent approved dwellings create wings in the riparian zone extending to the west on the south of dwellings 4 and to the west on the north of dwelling 11. Although these wings would provide an odd discontinuity of the riparian zone, this discontinuity is maintained in the plans for which approval is sought (there being some variance with the landscape plan this regard). Such discontinuity is, therefore, no reason to consider permitting an otherwise unacceptable intrusion into the riparian zone by proposed dwelling 8. Private open space to dwelling 8 25 The plans that were before the Court, at the commencement of the hearing, envisaged the private open space for proposed dwelling 8 to comprise of four areas. One of these is a proposed small grass area to the south east of the proposed dwelling and is an area which would not have been relevant for consideration of this issue even if it had not been abandoned as noted below. The other three areas are generally to the north of the proposed building. To the immediate north east is a proposed terrace of 16 sq m; adjacent but lower and to the north east accessed by a pathway and steps is a native grass area of some 30 sq m and, finally, a native grass area of some 30 sq m immediately adjacent to and level with the terrace to its north and continuing along first half of the north western wall of the proposed dwelling. The proposed grassed areas to the north east and south east of proposed dwelling 8 are located in the designated riparian zone. 26 During the course of evidence given by Mr Perdicaris, became clear that the Department would not approve any revegetation plan for the riparian zone which envisaged usable open space incorporated within the zone. It was clear that the policy of the Department was to discourage access to the riparian zone except for the purposes of maintenance of that zone. Pathways, retaining walls and the like would not be permitted (although Mr Perdicaris did indicate that, if the application were to be approved, permeable boundary fencing within the riparian zone would be likely to be permitted). 27 As consequence of this, the applicant sought, and was granted, leave to amend the application so that no development, other than revegetation planting and bank restoration works, was proposed for the riparian zone. This had the effect of the deleting the north eastern proposed private open space for proposed dwelling 8. Thus the total proposed private open space for proposed dwelling 8 is 46 sq m. 28 As noted above, SEPP 53 is a facultative statutory instrument. It does, however, in its own terms, impose limitations and design principles which must be adhered to if advantage is to be taken of it. The provisions of cl 3 of SEPP 53 via 3(1)(d) impose a requirement that, effectively, any proposed development taking advantage of the instrument should be of good design and it progresses from that provision to 3(2)(b) which has the instrument setting out a series of principles that are regarded as being principles of sound design. It provides that, in considering those principles, regard is to be had to the built form response to the characteristics of the site and its location. 29 Provisions of cl 15 require that the dual occupancy development is to be designed and assessed with a full understanding of the opportunities and constraints of the site and designed having regard to the design principles contained in Pt 5 of the instrument. 30 The question arising with respect to solar access and usable private open space is whether appropriate regard has been had to the constraints of the site in applying the design principles in Pt 5. Pt 5 in cl 27 sets out a general objective for the Part which simply calls in aid the detailed provisions contained in cl 32. The relevant condition in cl 32 that picks up the issue of solar access and usable private open space is cl 32(c) which relevantly provides: (c) Solar access and design for climate The proposed development should, where possible: (i) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space, and (ii) …………. Note. AMCORD A National Resource Document for Residential Development, 1995, may be referred to in establishing adequate solar access and dwelling orientation appropriate to the climatic conditions. 31 In the present context, the critical elements of cl 32(c)(i) are what constitute adequate sunlight and substantial areas of private open space. It is appropriate, as noted in the clause, to turn to AMCORD for guidance in this regard. In Part 2.5 of AMCORD – entitled Design Elements – section 5.7 deals with private open space. It sets out a statement of intent which is to ensure that the private open space provided for dwellings is clearly defined, usable and meets user requirements for privacy, access, outdoor activities and landscaping. Three performance criteria are set out and, relevantly to the present application (being for a site with a site density of less than 40 dwellings per hectare), it sets out an acceptable at ground level solution. This reads: o total minimum area of 20 % of the site area (or average site area per dwelling for multi-dwelling developments), with a minimum dimension of 3.0 m; o one part with an area of 25 sq m with a minimum dimension of 4 m and directly accessible from a living area of the dwelling; o a maximum gradient of 1 in 10; o screening provided (minimum 1.8 m) when necessary to ensure privacy of users of the open space. 32 It is clear that the private open space for proposed dwellings 7 and 8 satisfies the second, third and fourth of these criteria. In addition, I do not consider that it was seriously contended by the council that the private open space for proposed dwelling 8 did not satisfy the performance test in SEPP 53 of receiving adequate sunlight to the area which remains to be considered in these proceedings. However, it remained the council's contention that the contiguous area of private open space comprising the terrace and the proposed grass area for proposed dwelling 8 does not constitute substantial areas of private open space when tested against the first criterion of AMCORD set out above. 33 After deducting the access handle, the allotment has an area of 1313 sq m. The application of the first criterion of AMCORD would require private open space areas of 131.3 sq m for each of proposed dwellings 7 and 8. 34 Mr Minto gave evidence that he considered it appropriate to have regard to the extensive area of the proposed riparian zone and to adjust, downward, the area required to satisfy the private open space requirement is a consequence of the effective sterilisation of a significant portion of approved Lot 83 by this riparian zone. 35 Although an initial reaction to such a proposition might be that the applicant has relied on the area of the riparian zone within the allotment to enable the proposal to satisfy the minimum site area and floor space ratio requirements of SEPP 53 and thus that consistency should be applied and this proposition rejected, the very generous size of approved lot 83 coupled with the extent of the riparian zone do, in my assessment, permit some allowance to be made in favour of the applicant in this regard. 36 The original proposal for private open space comprising the three areas generally to the north of proposed dwelling 8 would have had a total area of 76 sq m. This area would have comprised approximately 58% of the area which would have been regarded as appropriate by the application of the AMCORD formula. Although significantly below the area derived by the formula, in all the circumstances, such a total area of private open space would have been marginally acceptable. 37 However, the exclusion of the most northeastern of these three possible areas leaves a resulting area of private open space area for proposed dwelling 8 of 46 sq m. This area would comprise approximately 35% or only just over a third of the area which would result from the application of the AMCORD formula. Having regard to the substantial size of proposed dwelling 8 – particularly that it is proposed to have four bedrooms – I am unable to conclude that such a significant reduction from the quantum which would be derived from the AMCORD formula is acceptable. The impact on 6 Douglas Street 38 During the course of the inspection of the site in company with the parties, the location of proposed dwelling 8 was viewed from 6 Douglas Street. The existing development on approved Lot 83 comprises part of the existing tennis court, the existing swimming pool and a gazebo adjacent to the swimming pool and between that pool and 6 Douglas Street. 39 Dr R de Lambert, a resident of this property, gave evidence that its dining room and deck area were regularly used by him and his family to enjoy the bushland setting which they are presently able to experience as a consequence of the low key scale of recreational development on the present site of approved Lot 83. 40 The closest portion of proposed dwelling 8 is separated by some 24 m from this deck area of 6 Douglas Street. The presentation of proposed dwelling 8 to this deck is an oblique one so that the east elevation depiction in plan DA.04 is not entirely appropriate as a basis for consideration. The most proximate significant element of proposed dwelling 8 is the dining room, the eaves of which rise some 5.3 m above natural ground level and some 7.5 m above the top of the creek bank. This element is set some 4.85 m back from the top of the creek bank. The next most proximate element of proposed dwelling 8 is the facade of bedroom number 4, the gable end and ridge line of which are some 3.9 m above the eaves of the dining room with the ridge line of bedroom 1 being some 1.2 m above that. Thus the total built vertical presentation, although with a number of setbacks incorporated in it, is a built form of some 10.4 m above ground level and 12.6 m above the creek bank. 41 The deck of 6 Douglas Street is approximately 1.2 m above the terrace level of proposed dwelling 8. Thus the built form of proposed dwelling 8 extends some 7.1 m above the level of this deck. The view of the built form of proposed dwelling 8 from this deck would be across the large pool in the creek and, except for such landscape screening as might be able to be provided on approved Lot 83, would be uninterrupted. 42 Condition 27(e) of the subdivision consent given by Roseth SC requires stabilisation of the creek bank in this vicinity. The stabilisation is to use bush rock material for this purpose. Whilst some planting would be possible and is envisaged within the stabilisation works at this point, this will not provide screening of any significance to proposed dwelling 8. The landscape plan envisages native screen planting along portion of the bank between the stabilisation works and proposed dwelling 8. It was clear, on the view, from the pole erected by the applicant marking the closest point of proposed dwelling 8, that there was extremely limited opportunity for effective planting in this vicinity. 43 It was Mr Minto's evidence that: …. the view of the development from both properties [4 & 6 Douglas Street] will be acceptable and will not resulted a mutually bulky building. This is largely due to the generous separation (16 m to the boundary & 24 m to the building) that exists between the properties and extensive existing and proposed landscaping that also exists between the two properties on either side of the Creek. It is my interpretation of the building in its highest point is that the location of proposed ground floor terrace which will provide significant break, vertical form the building and that this will also assist in reducing the building bulk. He also said: It is therefore my opinion of the proposed subfloor is not excessive and that the proposal will not have excessive visual bulk. 44 On the other hand, Mr Sanders said in his statement of evidence that the impacts of proposed dwelling 8 include: ….. the extent which the development will appear as a visually interested element when viewed from the properties on the other side of the Creek. This adverse visual impact is exacerbated by a number of factors that reinforce the proposition that the proposal is unacceptable in this respect. I have already noted the extent of fill and under croft retaining walls that will increase the perceived bulk of the two proposed dwellings. 45 Mr Sanders also expressed the view that: … the proposed dwellings 7 and 8 are located too close to each other and that, as one consequence, they will read together when viewed from the East as an inappropriately large structure in the context of the site's relationship to the Creek. 46 The landscape plan proposes considerable screening planting in the sight line between the deck of 6 Douglas Street and proposed dwelling 7. During the course of the hearing, in response to evidence given by Mr Perdicaris, the applicant abandoned plans for a retaining wall and a grassed open space area on the southeast corner of proposed dwelling 8. 47 I satisfied that there is sufficient opportunity in the revegetation plan required for the riparian area in the vicinity of proposed dwelling 7 for its visual impact not to contribute to or compound, significantly, the visual impact of proposed dwelling 8 when viewed from 6 Douglas Street. I therefore do not accept Mr Sanders' evidence in this regard. 48 On the other hand, I consider that the limited scope for landscape screening between proposed dwelling 8 and the creek when coupled with the proposed built form of some 10.4 m above ground level is not capable of being sufficiently overcome by the 24 m separation noted above – even when considered in conjunction with the various setbacks in the built form proposed for this dwelling. This conclusion results in a finding that the proposal does not satisfy the provisions of cl 32(h)(b) of SEPP 53. 49 In a more conventional urban setting, this separation would be likely to be acceptable if the scale of the proposed construction were also acceptable in its context. In the present instance, the setting is not a conventional one and gives rise to additional considerations as discussed above concerning the riparian zone intrusion. The fact that the excessive bulk of this aspect of proposed dwelling 8 significantly intrudes into the riparian zone and is in close proximity to the large pool on Ku-ring-gai Creek merely serves to compound its unacceptability in this regard. The view of dwelling 8 from Kenthurst Road 50 Mr Sanders expressed the opinion that the view of proposed dwelling 8 down the northern of the two internal driveways is unacceptable. In his written statement of evidence, he expresses the opinion that this will lead to an impression of enclosure by development along with driveway as well as the elimination of the vista through to the vegetation along the creek. 51 The views into the overall development from Kenthurst Road will be through two driveway openings in the existing substantial brick wall which surrounds the present residential compound. Although the driveway entrances will be relocated from their present positions, the brick wall will be retained. The opportunity for views down the full length of the relevant driveway from Kenthurst Road will essentially be confined to pedestrian or vehicular traffic immediately opposite the opening in the wall for this driveway. 52 The landscaping plan includes proposed planting of two canopy trees which will be visible along the driveway at its conclusion in the vicinity of proposed dwelling 8. One of these is to be outside proposed dwelling 8 and the other outside proposed dwelling 7. Additional screening shrubs are proposed outside proposed dwelling 8 running to the north east from the relevant canopy tree. 53 I am satisfied that, for the limited viewing available along this driveway from Kenthurst Road, the proposed landscaping would provide an appropriate degree of softening of the development that would comprise proposed dwelling 8. Visitor parking 54 The statement of evidence of Mr Sanders noted that the proposed development provides parking in accordance standards set out in the State Policy. He expresses the opinion that it would not be appropriate for development such as would eventuate on the overall site were the subject application be approved to provide no on-site visitor parking at all. 55 On the other hand, Mr Minto expresses the opinion that, in addition to its compliance with the State Policy, the proposal does allow for at least one vehicle the parking privately to the proposed garages without obstructing the use of the driveway by the other dwellings. 56 The garages for proposed dwellings 7 and 8 are double garages as is the position for each of the dwellings approved by Roseth SC. The amount of space in the forecourt outside each of the garages for dwellings 1, 2, 3, 5, 6, 10 and 11 approved by Roseth SC is generally similar to the forecourt areas outside the garages of proposed dwellings 7 and 8. Parking does not seem to have been an issue in the earlier dwelling application dealt with by Roseth SC. If the court were to approve proposed dwellings 7 and 8, visitor parking would be consistent with the availability of visitor parking for the remainder of the dwellings proposed for the site. There is, therefore, no basis for refusal on an overall site context (even if this were appropriate in these proceedings which are confined entirely to proposed development on approved Lot 83). 57 In addition, I accept the evidence of Mr Minto that one informal visitor parking space is available outside the garages of each of proposed dwellings 7 and 8. Even if consideration of s 79C matters made it appropriate to go beyond the requirements of SEPP 53, the informal visitor parking available is clearly acceptable. Conclusions 58 For the reasons set out above, I am satisfied that the intrusion of proposed dwelling 8 into the riparian zone of Ku-ring-gai Creek and the resultant visual impact on 6 Douglas Street warrant refusal of the application. In addition, the amount of private open space available to proposed dwelling 8 is unacceptable, and as a consequence, the proposal also warrants refusal on this basis alone. Orders 59 The orders of the Court are: 1. The appeal is dismissed; 2. Development Application 126/03 for detached dual occupancy dwellings on approved Lot 83 of the approved subdivision located at 37 Kenthurst Road, St Ives is refused; and 3. The exhibits, other than Exhibits D, G, H and L, may be returned. Tim Moore Commissioner of the Court 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.