Land and Environment Court of New South Wales CITATION : Peter McNamee v Baulkham Hills Shire Council [2005] NSWLEC 586 APPLICANT: Peter McNamee PARTIES : RESPONDENT: Baulkham Hills Shire Council FILE NUMBER(S) : 10384 of 2005 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Site area - Streetscape - Visual Privacy - Solar access and design - Landscaping and open space - Driveways and car parking - Courtyards Baulkham Hills Local Environmental Plan 2005, (BHLEP) Development Control Plan No 4 - Town Houses, (DCP4) LEGISLATION CITED: Development Control Plan No 12 – Parking, (DCP12) Environmental Planning and Assessment Act 1979, ss 79C and 97 DATES OF HEARING: 14/10/2005 EX TEMPORE JUDGMENT DATE : 10/14/2005 APPLICANT: Mr B Goldsmith, consultant town planner SOLICITORS: N/A LEGAL REPRESENTATIVES: RESPONDENT: Mr P Vergotis, solicitor SOLICITORS: MatthewsFolbigg JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 14 October 2005 10384 of 2005 - Peter McNamee v Baulkham Hills Shire Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Baulkham Hills Shire Council (the council) to refuse a development application to demolish an existing dwelling and to construct four, (4) x 3 bedroom townhouse at No 764 Pennant Hills Road, Carlingford, being Lots 1 & 2, DP 135965. 2 I visited the land in company with the parties on the morning of the day of the proceedings. 3 I have concluded that the application when considered under s 79C of the Environmental Planning and Assessment Act 1979, that it should succeed. The land 4 The land is situated on the southwestern corner of Pennant Hills Road and Moseley Street. It has a 54.8m street frontage to Moseley Street and a 16.8m frontage to Pennant Hills Road and a western side boundary of 22.8m, giving an area of some 1,193m2. 5 The land slopes away from Pennant Hills Road with a fall of 4.5m and 5.7m along the northern (Moseley Street) and southern boundaries respectively. 6 Carlingford, is predominantly residential in nature with some business uses occupying existing dwelling houses and a church along Pennant Hills Road. 7 To the north of the land, across Moseley Street, is an existing church with the main access driveway to Moseley Street. To the south and west of the land are dwellings occupied by businesses along Pennant Hills Road and residential dwellings to the southwest. To the east of the land, across Pennant Hills Road, is Carlingford Court Shopping Centre within the Hornsby Shore Council boundary. 8 The character of the area is likely to change from lower density to higher density as new residential developments are completed under zoning amendments. A development application of an apartment development has been lodged for adjoining site to the southwest of the subject land. Relevant planning controls Baulkham Hills Local Environmental Plan 2005, (BHLEP) 9 Under the provisions of the BHLEP gazetted 26 August 2005, the land is zoned Residential 2(al) and the proposal is permissible with consent. This plan repeals BHLEP1991. The aims of the recently gazetted BHLEP are: (a) with respect to the natural and built environment of the Baulkham Hills local government area, to conserve and enhance the natural and built environment of Baulkham Hills, for present and future generations, and (b) with respect to the community of that area, to encourage a strong sense of community identity and economic well-being throughout Baulkham Hills through the development of local communities that are safe, liveable and offer a diversity of land use and economic opportunity, and (c) with respect to use of resources within that area, to promote the efficient utilisation of land, services and support facilities in existing urban areas and to provide for the orderly growth of new urban areas that promote a high level of residential amenity, and (d) with respect to flexibility, to create a broad framework of controls that allow the opportunity for more detailed provisions relating to matter of local significance to be contained in development control plans. 10 Detailed objectives of the BHLEP are found in cl 2 p 6. 11 Clause 19 of the BHLEP –proscribes the minimum site area for apartment buildings, town houses and villas. Clause 20 of the BHLEP allows for a smaller minimum site area for apartment buildings, town houses and villas than allowed under cl 19. Clauses 19 and 20 state: 19. Consent must not be granted for development for the purpose of buildings of a kind specified in Column 1 of the Table to this clause unless the total area of the land the subject of the development application is equal to or greater than, the area specified in Column 2 in relation to those buildings. Table Column 1 Column 2 Apartment building 4, 000m2 Town Houses 1,800m2 Villas 1,000m2 20. Despite clause 19, consent may be granted to development, for the purposes of apartment buildings, town houses or villas, on land that is smaller than the area required by that clause if the Council is satisfied that: (a) Streetscape The form of the proposed structures is compatible with adjoining structures in terms of their elevation to the street and building height. (b) Visual and acoustic privacy The design and location of rooms, windows and balconies of the proposed structures, and the open space to be provided, ensures acceptable noise levels and visual privacy. (c) Solar access and design The dwellings are designed to minimise energy needs and utilise passive solar design principles. (d) Landscaping and open space Significant existing vegetation will be retained and landscaping is incorporated within setbacks and open space areas. Development Control Plan No 4 - Town Houses, (DCP4) 12 Clause 5 of DCP4 applies and sets out the development controls for site requirements relevant to this proposal. In particular, cl 5.1 provides details relating to site requirements including minimum site area and reference is made to the BHLEP. Development Control Plan No 12 – Parking, (DCP12) 13 Clause 4 of DCP12 sets out the development controls for parking. In particular cl 4.1.1(i) relates to stack parking and cl 4.7.1 provides details on parking design and layout. The proposal and its history 14 Development application No 641/2005/HB was lodged with the respondent council on 15 September 2004, to demolish the existing building and to erect four townhouses on the land. Strata subdivision would be part of a separate application to the council. 15 The application was submitted by Gelder Architect Group and seeks approval to demolish an existing dwelling and to construct four (4) x 3-bedroom townhouses with private courtyards within the front setback area and four individual driveways (now amended to two combined driveways) to Moseley Street. Residents' parking would be accommodated in four garages and one visitor parking space would be provided on the eastern driveway. A turning bay is proposed to be incorporated on the western driveway. 16 The proposed two-storey townhouses would have a building height to the eaves and ridges of less than 7.2m and 9m, respectively. A setback of 10m and 6m are provided to the Pennant Hills Road and Moseley Street frontages respectively. The side setbacks range between 1.5m and 4.5m. Notification 17 The application was notified to nearby owners and occupants for a period of fourteen (14) days commencing 24 September 2004 and the council received one (1) submission during the exhibition period. The application was also advertised in the local paper. 18 Council received further information on 21 October 2004 in response to the concern raised by a council officer. The application was referred to Council's Subdivision Control, Traffic and Parking, Building Control, Health and Environment Protection and Tree Management sections. The council's decision 19 By notice dated 23 November 2004, the council, under delegated authority refused the application for the following reasons: 1. The proposed development does not comply with Clauses 41 and 42 of Baulkham Hills Local Environment Plan 1991 [now cll 19 and 20 BHLEP] in relation to the minimum site area for apartment buildings, town houses and villas and variation to minimum site area provisions for apartment buildings, townhouses and villas. (Section 79C(1)(a)(i) of the NSW Environmental Planning and Assessment Act 1979). 2. The proposed development does not comply with the provisions of Baulkham Hills Development Control Plan No 4-townhouses in relation to: · section 5.1-site requirements; · section 5.10-building design and streetscape; · section 5.11-the open space; and · section 5.18-car parking. (Section 79C(1)(a)(iii) of the N S W Environmental Planning and Assessment Act 1979) . 3. The proposed development does not comply with the provisions of Baulkham Hills development control plan number 12-parking in relation to: · section 4.1.1(i)-stack parking; and · section 4.7.1(b); vehicles enter/exit site in a forward direction. (Section 79C(1)(a)(iii) of the N S W Environmental Planning and Assessment Act 1979 ). 4. The proposed development is considered to be an inappropriate development in an undersized site. (Section 79C(1)(a)(i), (1)(a)(iii), (1)(b) and (1)(c) of the N S W Environmental Planning and Assessment Act 1979 ). 5. The proposed development, due to its design and landscaping will have an adverse impact on the existing streetscape. (Section 79C(1)(a)(i), (1)(a)(iii), (1)(b) and (1)(c) of the N S W Planning and Environmental Planning and Assessment Act 1979 ). 6. The development is considered not to be in the public interest. (Section 79C(1)(b), (1)(c) and (1)(b) of the N S W Environmental Planning and Assessment Act 1979 ). The hearing 20 The appeal was filed on 21 April 2005 and is within time. 21 At the hearing the court heard evidence on behalf of the respondent council from: · Mr and Mrs Rosario, residents of No 21 Moseley Street, Carlingford; · Mr R Tse, Senior Town Planner of Baulkham Hills Shire Council. 22 The application was case managed by Dr J Roseth, Senior Commissioner and directions given. The applicant and the respondent met those directions. As a result of these directions much consultation took place between the parties culminating in various amendments to the proposal in the light of the issues. The issues 23 On 18 May 2005 the council filed a statement of issues: 1.0 Whether the proposed townhouse development (the proposed development') is contrary to s 79C(1)(a)(i),(ii) & (iii) of the Environmental Planning and Assessment Act 1979 (NSW) with respect to: (a) Baulkham Hills Local Environmental Plan 1991 (the 'BHLEP'). Relevantly the proposed development is contrary to cl 41 & cl 42 of the BHLEP; (b) Draft Baulkham Hills Local Environmental Plan (the `Draft BHLEP'). Relevantly the proposed development is contrary to cl 46 and cl 47 of the Draft BHLEP; (c) Baulkham Hills Development Control Plan No. 4 - Town Houses (the 'DCP'). Relevantly the proposed development is contrary to sections 5.1, of the DCP. Particulars 1.1 Baulkham Hills Local Environment Plan 1991 (the 'BHLEP'); 1.1.2 Undersized Development Site The proposed development fails to take into account of the minimum site area requirement (at 1,800 sqm for townhouse development) as stated in cl 41 of BHLEP. The area of the subject site (at 1,193 sqm) is only 66% of the required minimum site area of 1,800sgm for townhouse development. The design of the proposed development is severely compromised as a result of this deficiency. Clause 41 of BHLEP sets out the minimum site area for apartment buildings, town houses and villas as follows: 41. The Council must not consent to the development of land for a purpose specified in Column 1 of the Table to this clause unless the total area of the land the subject of the development application is equal to or greater than the area specified in Column 2 opposite that purpose. Table Column 1 Column 2 Apartment building 4, 000 square metres Town houses 1,800 square metres Villas 1, 000 square metres The proposed development does not have sufficient site area to provide an acceptable design to meet the site area requirements of the LEP. The design of the proposed development has been compromised due to the small site area with poor quality open space areas and inadequate consideration on traffic safety. The design of the proposed development fails to satisfy the heads of consideration in cl 42 of the BHLEP for variation of the minimum site requirement. Clause 42 of the BHLEP states: 42. Despite clause 41, the Council may consent to the development, for the purposes of apartment buildings, townhouses, or villas, of land that is smaller than the area required by that clause if the Council is satisfied that: (a) Streetscape The form of the proposed structure is compatible with adjoining structures in terms of its elevation to the street and building height. (b) Visual and acoustic privacy The design and location of rooms, windows and balconies of the proposed structures, and the open space to be provided, ensures acceptable noise levels and visual privacy. (c) Solar access and design Dwellings are designed to minimise energy needs and utilise passive solar design principles. (d) Landscaping and open space Significant existing vegetation will be retained and landscaping is incorporated within setbacks and open space areas. The proposed development fails to satisfy the requirements of this clause, in particular: (a) Streetscape The proposal involves a townhouse development with private open space/courtyards distributed to the front and rear due to limited space to accommodate all of the development. The presentation of the proposal to Moseley Street (primary frontage) is not satisfactory with 2m masonry courtyard walls and low landscaping provision along Pennant Hills Road and Moseley Street. The northern courtyard walls for the two units in the middle have no setback from Moseley Street and no articulation to provide visual interest and satisfactory landscaping. There is no visual connection between the proposed development and Council's footpath due to the 2m walls for courtyards. The proposal has four driveways to Moseley Street with substantial hard paving and limited landscaping. It is considered that the proposed development is of unsatisfactory design and will have adverse impact on the Moseley Street streetscape. (b) Visual and Acoustic Privacy The proposed development has the potential to overlook the adjoining sites and privacy of the adjoining residents. In particular, the property to the west at No.21 Moseley Street will be adversely affected due to the level difference between the courtyard for Unit 1 and No.21 Moseley Street. The proposed development fails to take into account of the noise impacts from Pennant Hills Road. The development adjoins Pennant Hills Road with a 10m setback from the property boundary. The proposed development is affected by traffic noise from Pennant Hills Road and the applicant has not provided sufficient information to demonstrate compliance with the Council's and EPA's requirements relating to noise attenuation. Unit 4 is particularly affected by high traffic noise levels as it has a direct frontage to Pennant Hills Road. The proposed development fails to provide an acoustic study to demonstrate the noise levels affecting residential units. The internal living areas, particularly the bedrooms on the upper level of Unit 4 are likely to be affected by excessive noise levels. Noise attenuation measures, such as double-glazing are likely to be required. Mechanical ventilation is likely to be required, as windows will remain closed to keep noise levels down. The provision of mechanical ventilation is in contrary to ESD principle No 5 to promote the use of energy efficient design in the design, construction and operation of residential development. (c) Solar Access and Design The proposed development fails to provide adequate amenity to the future residents of the development particularly in terms of solar access to the rear courtyard for Units 2 and 3. Both units will not receive any sunlight in winter (21 June) between 9.00am and 3.00pm. Although a courtyard to the front facing Moseley Street is proposed, it is unlikely to be heavily utilised due to its orientation to a busy street, small area and awkward shape. Poor solar access will also have adverse impacts on the growth/survival of the proposed turf in the rear courtyards. The rear courtyards are likely to be replaced by hard paving. The poor solar access to the rear courtyards will likely to slow the growth of screen planting along the boundary to provide effective privacy screening to protect the privacy of adjoining neighbours to the south of the subject site. (d) Landscaping and Open Space The proposed landscaping is considered unsatisfactory particularly to the north (Moseley Street) elevation. The provision of driveways, hard paving and courtyard walls to the north elevation limits the scope for extensive landscaping and treatment to soften the development. The proposal fails to provide an appropriate landscaping treatment for the development due to its size and dimensions. Furthermore, the restricted has limited any further scope for improvement to the amenity and quality of the private open space areas due to the limited width of the site. The proposed development is not capable to justify any variation to the minimum site area requirement for townhouse development. Further discussion of the above issues relating are detailed below. 1.2 Draft Baulkham Hills Local Environmental Plan ('Draft BHLEP') Similarly, the proposed development fails to take into account of the minimum site area requirements in the Draft BHLEP. Clauses 46 and 47 of the Draft BHLEP set out the identical minimum site area requirement and criteria for variations to minimum site area in cll 41 and 42 of the BHLEP. As discussed above, the proposal does not satisfy the requirements of c1l 41 and 42 of BHLEP. Similarly the proposal does not satisfy the requirements of cll 46 and 47 of Draft BHLEP. 1.3 Baulkham Hills Development Control Plan No. 4 - Town Houses (the 'DCP') The proposed development is contrary to the following objectives of site requirement in Section 5.1 of DCP No.4: i. To ensure development sites have sufficient areas to provide adequate access, parking, landscaping and building separation. ii. To provide for the orderly development of residential land through the consolidation of lots. iii. To ensure development on a particular site has due regard to adjoining developments. Sections 5.1(a), (b) and (c) of DCP requires a minimum site area of 1800 sqm for townhouse development with a minimum road frontage of 28m and average site width of 30m. The proposed development fails to satisfy objective (i) of the DCP: Access: The proposed development fails to limit the number of access driveways to ensure orderly movement of vehicles entering and exiting the site. The proposal has four separate access driveways off Moseley Street. This particularly relevant to this site due to the large number of vehicles turning onto Moseley Street from Pennant Hills Road. Pennant Hills Road is a major arterial road in Sydney with high traffic volume. Moseley Street is a local collector road providing a connection between Pennant Hills Road and Jenkins Road to the west. Moseley Street is also used by drivers as an alternative route to North Rocks/Baulkham Hills to avoid the Pennant Hills Road and North Rocks Road intersection. Safety for vehicles leaving the subject site cannot be assured as the subject site does not have sufficient area and width to provide the necessary turning facility for vehicles entering and leaving in a forward direction. The proposed development is also located in close proximity to the Church's main access driveway on the northern side of Moseley Street. This has created potential conflict for traffic entering/exiting the church and vehicles leaving the proposed development particularly on Sundays. Parking: The proposed development does not provide satisfactory parking for residents and visitors of the development. All residents parking are accommodated within the garages of each townhouse unit. However, vehicles will not be able to enter and exit the driveways in a forward direction as required by Section 4.7.1(b) of Council's DCP No 12 - Parking due to insufficient space to accommodate a turning facility within the site. Furthermore, the small site area and limited width of the site also result in the lack of visitors parking within the site. Visitor parking can only be provided on the driveways of each unit. The arrangement fails to properly respond to the parking condition on Moseley Street as this will increase the need for undesirable and potentially unsafely reversing movements onto Moseley Street. Parking is restricted on both sides of Moseley Street with "No Parking" along the full frontage of the subject property, whilst "No standing" and a bus stop on the northern side of Moseley Street between the access driveway of the church and the intersection of Pennant Hills Road restrict parking on the opposite side of Moseley Street. Further, visitors' vehicles may be required to park on street due to the short length of the driveway. This is an unacceptable arrangement, as visitors' vehicles will have to be parked further away from the subject site due to the parking restrictions on Moseley Street. Landscaping: The proposed development fails to consider the impacts of the development on existing vegetation due to site constraints. The proposal will require the removal of eleven (11) existing trees without a supporting arborist report. Further, a Safe Useful Life Expectancy (SULE) assessment is also required to facilitate any assessment of tree retention/removal. The lack of direct sunlight to the rear of the subject property is likely to affect the rate of growth for planting along the rear boundary. The proposed landscape concept plan does not provide sufficient information to address this issue. Insufficient landscaping has been provided to the wall the courtyard for Units 2 and 3 facing Moseley Street due to the absence of any setback of the wall from the property boundary to provide the required two (2) metre strip for landscaping. Orderly Development and Adjoining Developments The proposal does not achieve orderly development in terms of the layout of the development, vehicle access arrangements and landscaping as discussed above. Impacts on Adjoining Properties The proposed development fails to maintain reasonable neighbourhood amenity with respect to the requirements of the DCP having regard to design of the building and the protection of the privacy of adjoining residents. The proposal will cause unacceptable impacts on one immediate adjoining resident to the west at No.21 Moseley Street. The neighbour to the west (downhill) will be adversely affected by overlooking onto the bedrooms and backyard of the adjoining property. The southwestern corner of the subject site is likely to require some fill to an existing bank. This will increase the level of the courtyard of Unit 1 and the likely creation of 2m high a retaining wall on the boundary. The courtyard of Unit 4 will have direct view of the courtyard of the adjoining property and the privacy of the adjoining residents will be adversely affected. 2.0 Whether the proposed town house development (the `proposed development') is contrary to s 79C(1)(c) of the Environmental Planning and Assessment Act, 1979 (NSW). Particulars 2.1 The development site is too small to accommodate an acceptable development and will likely result in poor quality open space areas for residential units in terms of solar access and noise from Pennant Hills Road. 2.2 The area of the development site will likely to result in traffic conflict between vehicles entering/existing the development site and traffic on Moseley Street. 3.0 Whether the proposed town house development (the `proposed development') is contrary to s 79C(1)(e) of the Environmental Planning and Assessment Act 1979 (NSW) and not in public interest having regard to the unacceptable adverse impacts the proposed development is likely to cause to safety /parking on Moseley Street and adjoining residents at No. 21 Moseley Street. 4.0 Insufficient information submitted with the application. Particulars 4.1 Arborist Report has not been submitted to provide information/justification for the proposed removal and retention of trees. A Safe Useful Life Expectancy (SULE) assessment is also required to facilitate any assessment of tree retention/removal. 4.2 Traffic Report has not been submitted to provide detailed information relating to traffic volumes and safety relating to the proposed development. 4.3 An acoustic report has not been submitted to assess the noise levels from Pennant Hills Road and address the requirements of AS2671 - Road Traffic Noise Intrusion Guidelines. 4.4 The levels of the courtyards have not been provided, particular the courtyard level on the southwestern corner to demonstrate the height difference between the development site and the adjoining property at No. 21 Moseley Street. 4.5 Drawings/elevations showing the relationship with the adjoining properties has not been provided. 24 After case management and amendment of the plans by the applicant, the council has come to the Court seeking a consent award and there are no outstanding issues between the parties. Adjoining residents gave evidence on-site concerning the proposal. 25 The remaining issues were: · Streetscape; · Visual privacy; · Solar access and design; · Landscaping and open space; · Car parking; and · Courtyards Amended plans 26 On 4 July 2005 the applicant filed amended plans: · DA01 Amendment A – Changed ground floor plan showing four driveways changing into two. The inclusion of a visitor car space and a turning bay. Unit layouts and levels have been amended to accommodate driveway changes. The rear yard of Unit 1 has been lowered. The landscaping has been amended to accommodate design changes. · DA 02 Amendment A-unit layout and levels have been amended to accommodate driveway changes and changes to the ground floor. · DA 03 Amendment B-Roof plan has been amended to reflect changes to ground and first floor. · DA 04 Amendment A-elevations have been amended to reflect changes to unit layouts and incorporate details of the front fence. · DA 06-provision of new sections five and six through unit one and neighbouring property. The evidence and findings Site area 27 Clause 19 of the BHLEP sets out the minimum site area for apartment buildings, town houses and villas. 28 The proposal would occupy a site with an area of 1,193m2 and the council originally held concerns that this would not meet the site area requirements, of the now, cll 19 and 20 of the BHLEP and limit the ability of the designer to provide an acceptable design. However cl 20 of the BHLEP allows some flexibility provided the consent authority is satisfied in relation to Streetscape; Visual privacy; Solar Access and design; and Landscaping and open space. These are examined below. Streetscape 29 I am satisfied that the form of the proposed structure would be compatible with adjoining structures in terms of its elevation to the street and building height as required by cl 20 of the BHLEP. Visual privacy 30 I am satisfied that the design and location of rooms, windows and balconies of the proposed structures, and the open space to be provided, would ensure an acceptable noise level and visual privacy. On the site inspection Mr and Mrs Rosario gave evidence and agreed to suggestions made by the applicant for privacy screens. A special condition was proposed by the applicant to meet privacy concerns. Mr and Mrs Rosario agreed to this condition in principle. The applicant is to pay the full cost of the combined 1.8m-high retaining wall and fence on the western boundary as shown in Sections AA and BB on Plan DA06 Amendment B in Exhibit A. The applicant is to pay the full cost of the 600mm high lattice screen to be provided along the top of the western fence and retaining wall commencing 2m from the front alignment. The overall height of the proposed fence lattice and retaining wall is to be around 2.4m above the natural ground level abutting the eastern boundary of No 21 Moseley Street. The open concrete breeze-block fence within No 21 Moseley Street is to be made good on completion of the retaining wall and fence at the full cost to the applicant. Any tree roots in the vicinity of the reinforced concrete footing for the common boundary retaining wall are to be removed at the cost of the applicant. 31 The applicant at the hearing, agreed to this condition which became Condition 62A. Solar access and design 32 Given the location of the proposed dwellings on a busy main road I am satisfied that the proposal is designed to minimise energy needs and utilise passive solar design principles. It is recognised that the windows facing onto Pennant Hills Road would need to be double-glazed or similar, to attenuate vehicular noise and as a result mechanical ventilation may be required for the sound-proofed rooms. Against this proposal, which requires expenditure of energy, with the rooms sound-proofed the internal amenity would be expected to be adequate given the desirable orientation. The proposal makes good use of the land and has excellent opportunities for passive solar design with the wide north-facing Moseley Street frontage. Landscaping and open space 33 I am satisfied that the proposed landscaping within the front setbacks and open space areas at the rear would perform well as outdoor entertaining areas and would enhance the design. The council officer's concern that grass would not grow on the southern side of the proposal is understood, however, there are advantages in that the north-facing rooms over Moseley Street would benefit from controlled sunlight throughout the year and the north-facing courtyards would be ideal for outdoor entertaining. The better solution would be for the south-facing courtyards to be paved. Driveways and car parking 34 During negotiations between the council and the applicant it was agreed that the number of driveways would be reduced to two by combining the driveways as shown in the plans in Exhibit A. Also on the eastern driveway the applicant has provided one visitor's car parking space adjacent to the eastern driveway. This meets the council's concerns in this regard. Courtyards 35 The applicant has shown in the latest amendment of the plans, greater detail for the courtyards. As a result of these amendments the occupants of any dwelling on the land, would have direct access to the north-facing courtyards on the Moseley Street side of the development. These courtyards would offer supplementary outdoor entertaining areas to those proposed on the southern side of the proposal. 36 For the above reasons, the appeal is upheld. Conditions 37 The conditions are those in Exhibit 1 as amended during the proceedings. Costs 38 The parties agreed that each should pay its own costs. I so order. Consent orders 39 The consent orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 641/2005/HB lodged with the respondent council on 15 September 2004 to demolish an existing dwelling and to construct four (4) x 3 bedroom townhouse at No 764 Pennant Hills Road, Carlingford, being Lots 1 & 2, DP 135965 is approved subject to Conditions 1 to 74 in Annexure A. 3. Each party to pay its own costs. 4. The exhibits with the exception of Exhibits A, B, C, D, E, F, 1 and 3 are returned. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.