Land and Environment Court of New South Wales CITATION : Ray Fitz-Gibbon Architects v Pittwater Council [2006] NSWLEC 501 APPLICANT: PARTIES : Ray Fitz-Gibbon Architects RESPONDENT: Pittwater Council FILE NUMBER(S) : 10306 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Solar access and overshadowing Neighbourhood amenity and streetscape State Environmental Planning Policy (Seniors Living) 2004, (SEPP-SL) Seniors' Living Policy – Urban design guidelines for infill development, (SL Policy) LEGISLATION CITED: Pittwater Local Environmental Plan 1993, (PLEP) Pittwater 21 Development Control Plan, (DCP21) Environmental Planning and Assessment Act 1979, ss79C and 97 DATES OF HEARING: 08/08/2006 and 09/08/2006 DATE OF JUDGMENT: 08/16/2006 APPLICANT: Mr C McEwen, SC, instructed by Mr M A Staunton, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Staunton Beattie RESPONDENT: Ms S E Pritchard, barrister, instructed by Mr M Jacu, solicitor SOLICITORS: Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 16 August 2006 10306 of 2006 - Ray Fitz-Gibbon Architects v Pittwater Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Pittwater Council (the council) to refuse a development application for seniors' living units at Lot 122, DP 1078242, being No 2137B Pittwater Road, Church Point. 2 I visited the land in company with the parties on the morning of the first day of the hearing. Local interested residents gave oral evidence that was recorded by the parties and was later tendered. 3 I have concluded that the overshadowing of the property to the south is not sufficiently adverse to warrant refusal of the application. Other matters have been adequately addressed in amended plans and conditions and the development application may be granted consent. The land 4 The land is situated on the western side of Pittwater Road, and has a street frontage of 20.49m to Pittwater Road, a depth of 57.605m on the north, 62.070m on the south and an area of some 1,200m2. 5 The land slopes down about 4.6m from the northwestern rear corner to the southeastern front corner of the land or at a grade of around 7.5%. The foundation material is largely sand deposits and there is a likelihood that acid sulphate soils are to be found around 2m below the natural ground level near sea level. As the land was probably a filled bay of Pittwater and is low-lying, overland stormwater flows need to be catered for. 6 There are many trees on the land, comprising predominantly local indigenous species of Casuarina glauca. 7 The locality is a low-density residential area, with built-form comprising single-storey and two-storey dwellings in large gardens with associated on-site car parking and low scale front fences. Many nearby dwellings are setback from the street frontage around 19m. These generous street frontages are landscaped with remnant native trees. 8 Under construction, near the land, on the western side of Pittwater Road, is other aged and disabled housing. 9 Close and distant water views are obtained from properties on the western side of Pittwater Road near the land. Nearby is a foreshore public open space with foreshore pedestrian walk, and a few private boatsheds, interspersed by the occasional commercial marina. The streetscape is dominated by vegetation. Mona Vale commercial and retail centre is located around three kilometres to the east of the land and comprises mixed commercial and retail uses intermixed with residential. Relevant planning controls Pittwater Local Environmental Plan 1993, (PLEP) 10 Under the provisions of the PLEP the land is zoned Residential 2(a) and the proposal is as a 'residential flat building' is prohibited, however, as a 'seniors living' proposal it is permissible with consent under State Environmental Planning Policy – Seniors Living, (SEPP-SL). 11 Under the provisions of the PLEP the land is designated 'Area 1' and 'dual occupancy' is not permissible. That land is also within a Foreshore Scenic Protection Area, (FSPA); it is also subject to geotechnical hazard, wave action and tidal hazard, on-site detention controls (OSD), habitat categories 1 and 2, and native wildlife protection. Pittwater 21 Development Control Plan, (DCP21) 12 Development of the land is controlled under DCP21, however, this instrument may be taken only as a guide to future development when considering the likely future character of the area. 13 Other planning instruments that apply to the land include: · Environmental Planning and Assessment Act 1979, as amended, ss79C and 97; · State Environmental Planning Policy (Seniors Living) 2004, (SEPP-SL) · Seniors' Living Policy – Urban design guidelines for infill development, (SL Policy) · Draft Pittwater 21 Local Environmental Plan, (DLEP); · DCP 30 - Flood Risk Management, (DCP30); · Interim Geotechnical Risk Management Policy For Pittwater, (Georisk Policy). The proposal and its history 14 Development application No N0261/05 was lodged with the respondent council on 20 May 2005, to erect four (4) detached, self-contained dwellings under State Environmental Planning Policy (Seniors Living) 2004 (SEPPSL), and to strata subdivide. Nine (9) off-street car spaces, two (2) for each dwelling and one (1) allocated for visitors' is proposed. Notification 15 The application was notified to nearby owners and occupants for twenty-eight (28) days commencing 21 June 2005, and the council received eight (8) submissions. The council's decision 16 The council considered a report of its Development Unit and at the meeting held on 16 March 2006 resolved to refuse the application. The notice dated 24 March 2006 included thirteen reasons that are now reflected in the issues. The hearing 17 The appeal was filed on 13 April 2006. 18 On the site inspection a number of nearby residents and occupiers sought clarification of the applicant and gave evidence on behalf of the respondent council. These included: · Mr R Smith, resident of No 43 Waratah Street, Mona Vale; · Ms A Palmer, resident of No 138 McCarrs Creek Road; · Mr J Stead, resident of No 2139 Pittwater Road, Church Point; · Mr L Dixon, resident of No 7 Corniche Road, Church Point; · Ms S Ward, resident of No 2163 Pittwater Road, Church Point; · Ms M Crocher, resident of No 5 Valley Close, Bayview; · Mr Fletcher resident of No 39 Mikara Road, Bayview; · Mr F Makin, representing the Bayview Church Point Residents Association; · Mr M Dixon, Waratah Eco Works, of No 7 Corniche Road, Church Point; · Mr S Alexopoulos, son-in-law of the residents the Emmanoilidis at No 2137 Pittwater Road, Church Point; · Mr W (Bill) Buckle, resident of No 2123 Pittwater Road, Church Point; · Ms J Forbes, resident of No 1762 Pittwater Road, Church Point; and · Ms S C Hobley, Environmental and urban consulting horticulturalist; 19 On behalf of the applicant evidence was given by: · Mr D J Bliss, engineer with Jeffery and Katauskas whose statements are contained in Exhibits B, C and D; and · Ms M J Howden, horticulturalist and arborist. 20 The Court-appointed town-planning expert was Mr R A Player whose report was in Exhibit 6. 21 Mr T Dunbar, Senior Development Officer, Pittwater Council prepared a statement of basic facts dated 19 May 2006. The issues 22 On 19 May 2006, the council filed a statement of issues. Neighbourhood amenity and streetscape 1 The proposed development does not provide reasonable neighbourhood amenity and does not maintain an appropriate residential character due to an inadequate setback to the southeastern side boundary, the northeastern side boundary and the street. Particulars (a) Clause 31(c)(i) State Environmental Planning Policy (Seniors Living) 2004 ("SEPP SL"); (b) Clause 31(d) SEPP SL; (c) Clause D4.5 Pittwater 21 Development Control Plan ("DCP"); and (d) SEPP SL Urban Design Guidelines for infill development pages 8-11. Solar access and overshadowing 2 The overshadowing impact upon the neighbouring dwelling to the southeast is significant; and given the minimal side setback to the southeastern boundary, the non-compliance with Pittwater 21 DCP Building Envelope Control to the southeastern elevation, and the lack of constraints on the site (ie, the site is in a low-density area, is relatively flat, and has a reasonable solar orientation) the significant shadow impact is not considered reasonable and could be significantly improved with more sensitive design. Particulars (a) Clause CIA Pittwater 21 DCP; (b) Clause C1.7 Pittwater 21 DCP; and (c) Clause 33 SEPP SL. 3 The proposed development does not provide adequate daylight to main living rooms of the development in accordance with Clause 33 of SEPP SL, and the Applicant has not demonstrated adequate solar access to the development in the afternoon period having regard to the additional shadowing from the hill to the north of the site. Particulars (a) Clauses C1.4 Pittwater 21 DCP; (b) Clause C1.7 Pittwater 21 DCP; and (c) Clause 33 SEPP SL. Privacy and visual impacts 4 The terrace for Unit 1 is not in sympathy with the established building line and has inadequate spatial separation to the southeast property boundary, resulting in unmitigated visual and privacy impacts upon the adjoining residence at 2137 Pittwater Road. Particulars: (a) Clause 31(d) of SEPP SL; and (b) SEPP SL Urban Design Guidelines for infill development pages 10-11. 5 The proposed roof form, substantial and unarticulated eave width and length on the southeast elevation will exacerbate the visual impact of the built form as viewed from the neighbouring property to the south east, 2137 Pittwater Road. Particulars: SEPP SL Urban Design Guidelines for infill development pages 10-11. 6 The proposed terrace to Unit 3 has unacceptable overlooking impacts upon the private open space within the front yard area of the neighbouring dwelling to the southeast, No 2137 Pittwater Road. Particulars: Clause C 1.5 Pittwater 21 DCP. 7 The proposed dining and outdoor terrace of Unit No. 4 would have unacceptable impacts upon the privacy and amenity of adjoining residents at 2139 Pittwater Rd, and the development demonstrates an over-reliance upon a narrow landscape strip of questionable value for mitigation of such impacts along the northwestern side boundary. Particulars: Clause C1.5 Pittwater 21 DCP. 8 The proposal has not demonstrated that the external height, roof form, and materials of the garbage room, which is likely to have visual impacts given its proximity to the front boundary, are appropriate. 9 The proposed development does not conform to the Building Envelope Control of Pittwater 21 DCP, which factor together with the inadequate side setback and contributes to the unreasonable visual amenity and privacy impacts upon the southeastern neighbour. 10 The proposed landscaping plans do not provide for overland flow paths around the building in accordance with the drainage plans. 11 The proposal would result in the unacceptable loss of the existing vegetation buffer located at the northwest boundary, which performs a critical amenity and privacy function. Particulars: Clause C1.5 Pittwater 21 DCP. 12 The proposal would result in the unacceptable loss of Tree No 31, which is considered essential in mitigating privacy impacts to No 2139 Pittwater Road. Particulars: Clause C1.5 Pittwater 21 DCP. Inadequate communal open space 13 The proposed development fails to provide common areas that would permit resident interaction and does not provide communal open space that is clearly and easily accessible to all residents and easy to maintain. Particulars: (a) Clause 52(4) of SEPP SL; (b) Clause 29 SEPP SL; and (c) SEPP SL Urban Design Guidelines for infill development pages 12-13. Tree loss/removal 14 The proposed development sees the removal of the majority of the locally indigenous native trees from the site with the proposed works likely to have impacts upon the trees nominated for retention. Particulars: (a) Clause B4.6 Pittwater 21 DCP; (b) Clause C1.1 Pittwater 21 DCP; and (c) SEPP SL Urban Design Guidelines for infill development pages 6-7. 23 The following emerged as the salient issues: · Solar access and overshadowing, and · Neighbourhood amenity and streetscape. The evidence and findings 24 Mr Player, the Court-appointed town-planning expert, assessed the amended plans before the Court and concluded that there was nothing about the proposal that would cause him to recommend refusal. Solar access and overshadowing 25 In Issue 2 the council argued that the overshadowing impact upon the neighbouring dwelling to the southeast would be significant. The council stated, "…the significant shadow impact is not considered reasonable and could be significantly improved with more sensitive design". Ms Pritchard reiterated this in submissions. 26 During the course of the hearing the applicant agreed to a condition that would reduce the height of that section of the proposal that causes overshadowing and a more sensitive design than was originally proposed results. This change was supported by Mr Player. 27 Clause 33 of SEPP-SL provides that the proposed development should: (a) 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 (b) involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation solar heating and lighting by locating the windows of living and dining areas in a northerly direction. 28 The rules of thumb under SL Policy when considering the impacts of development on neighbours are: · Where side setbacks are less than 1.2m, a maximum of 50% of the development should be built to this alignment. · The length of unrelieved walls along narrow side or rear setbacks should not exceed 8 metres. · Living rooms of neighbouring dwellings should receive a minimum 3 hours direct sunlight between 9:00-3:00 in mid-winter neighbouring dwellings. · Solar access to the private open space of neighbouring dwellings should not be unreasonably reduced. 29 Mr Player was satisfied that the adjoining dwelling to the southeast of the land at No 2137 Pittwater Road, would receive adequate sunlight were the development described in the amended plans constructed. He particularly assessed the impact on the rear service yard of that property. 30 He was of the opinion that in the area where there would be the greatest breach of the DCP21 envelope controls the additional midday shade in midwinter would be cast over the roof of No 2137 Pittwater Road near the rear service yard. This was shown in the shadow diagrams in Exhibit P. 31 He agreed that if the ceiling of Dwelling No 3 in the area of the bedrooms were lowered to 2.6m, the roof lowered and the eaves of proposed dwelling No 3 in this area were removed, as was agreed by the applicant, the amount of shade at this and other times of the year, cast over the adjoining property, would be further reduced. Despite this the service yard behind the garage on that property would be overshadowed, to some extent, at different times of the year. 32 Mr McEwen, SC, submitted that the evidence of Mr Player indicates that the proposed setbacks on the southern side are "…not productive of an unreasonably impact". He submitted that there is compliance with any relevant standard including AMCORD and SEPP-SL. Also, the applicant is prepared to reduce the height of those two rooms, and delete the eaves, and as a result he submitted, "…the proposal sensitively responds …in the way in which the proposed building addresses the issue [of overshadowing] to the south". 33 The solar access to the main living rooms of the neighbouring dwelling at No 2137 Pittwater Road would remain unaffected by the proposal at the relevant times of the day. Where side setbacks are less than 1.2m, the maximum length of 50% of the development is not exceeded. The proposal would be setback 1.0m over a distance of around 10.321m over a length of around 20.849m. Solar access to the private open space off the living rooms of the dwelling at No 2137 Pittwater Road would not be unreasonably reduced. This is as a result of the main living rooms and open space of this dwelling being oriented away from the proposal. 34 I am satisfied that with the proposed amendments the extent of shading over the rear portion of No 2137 Pittwater Road would not be such as to warrant refusal of the application. In other locations shading caused by the proposal would not be significant. Neighbourhood amenity and streetscape 35 The council considered the proposal would not provide reasonable neighbourhood amenity and would not maintain an appropriate residential character due to an inadequate setback to the southeastern side boundary, the northeastern side boundary and the street. Ms Prichard reinforced this in submissions. 36 This topic relates to Issue 1 and in particular to cll 31(c)(i) and 31(d) of SEPP-SL which provide that development should maintain reasonable neighbourhood amenity and appropriate residential character by: (31)(c) maintain a reasonable neighbourhood amenity and appropriate residential character by: (i) providing building setbacks to reduce bulk and overshadowing, and (ii) using building form and siting that relates to the site's land form, and (iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and (iv) considering, where buildings are located on the boundary, the impact of boundary walls on neighbours, and 31(d) be designed so that the front building of the development is setback in sympathy with, but not necessarily the same as, the existing building line. 37 The rules of thumb under SL Policy for considering the impacts on streetscape and development should: · Respond to Council planning instruments that specify the character or desired character for the area. · Where there is a consistent front building alignment, new development should not encroach on the front setback. · Driveways or basement car park entries should not exceed 25% of the site frontage. · Garage doors should be setback a minimum of 1 metre behind the predominant building façade on both the street frontage and common driveways. 38 I accept the evidence of Mr Player: The established front building line for the subject property is approximately 19 metres from the Pittwater Road front boundary as shown on Drawings DA01-D to DA04-D. The established building line is significantly greater than the standard minimum front building line requirement of 10 metres under Clause D 4.5 of Pittwater 21 DCP. The front walls of the proposed SEPP (Seniors Living) building are all setback behind the established 19 metre front building line. The only building elements in the proposed development within the established 19 metre front building line is the ground level terrace with retaining wall, corner points to first floor balconies and supporting columns, garbage enclosure, front fence and retaining walls to the driveway and pedestrian pathway ramp. These building elements are minor encroachments within the 19 metre established front building line and will not detract from the residential character of the Church Point locality and will maintain satisfactory neighbourhood amenity, particularly given the extent of screen landscaping within the front setback area. I note that Clause D4.5 of Pittwater 21 DCP permits driveways, fences and retaining walls within a front building line. The facades of the proposed building are well articulated including the setting back of the first floor level behind the front building facade to reduce the visual bulk of the development proposal. The pitched roof has also been broken down into smaller roof elements and is consistent with pitched roof profiles of existing buildings along this section of Pittwater Road. The selection of building materials and colours including natural stone cladding, timber cladding, timber framed windows and doors, painted render and Colorbond metal roof, as well as the openings (doors, windows, terraces and balconies) contribute to reducing the visual bulk of the proposed residential building and respond positively to-the contextual building character of the locality. The curved driveway and path do not dominate the front setback area and will be substantially screened by the proposed landscaping treatment of the site frontage as shown on the amended landscape plan for the proposal. In relation to the southeastern and northwestern side boundary setbacks, the latest amended plans for the SEPP (Seniors Living) proposal are a substantial improvement on the original development proposal. Both the southern and northern building facades are now strongly articulated with increased side boundary setback areas available for screen landscaping, particularly towards the front section of the proposed building, where it is required to maintain a satisfactory amenity relationship with adjoining residential properties and in order to complement the existing residential character of the Pittwater Road streetscape. Along the south elevation, the proposal has a building setback to the southeastern side boundary of approximately 3 to 4 metres for the front half of the proposed building. The rear half of the proposed building has a southeastern side boundary setback of 1.0 to 1.879 metres. The south elevation .of the proposal satisfies the rules of thumb in the SEPP-SL Urban Design Guidelines (4. Impacts on Neighbours - Page 11) in that: Less than 50% of the proposed development will have a southeastern side boundary setback of less than 1.2 metres; The maximum length of unrelieved walls along the southeastern side boundary setback is 4.5 metres (less than 8.0 metres); The living rooms of the neighbouring dwelling at adjoining No 2137 Pittwater Road (ie. lounge, family and sunroom) will [potentially] receive a minimum 3 hours direct sunlight between 9:00am - 3:00pm in mid-winter; and Solar access to the principal areas of private open space of the neighbouring dwelling at No 2137 will not be unreasonably reduced by the proposal. 39 The design elements incorporated in the design of the proposal, to which Mr Player refers, assist in visually breaking up the façade and the front setback respects the setbacks of other dwellings in the area. 40 Mr McEwen, SC, submitted that the Court would accept Mr Player's evidence of the manner in which the proposal would address the street. He submitted that with the exception of the front terrace those parts that transgress are exceptions in the council's development control plan. He submitted that the stepping of the front façade of the proposal "…is a positive element in the design". He also submitted that the changes that have been made to the plans by moving forward the glazing line had assisted in modulating the design while at the same time the applicant had not wished to exceed the 0.5:1 FSR and had provided greater access for sunlight. As a result he submitted the proposal was acceptable and warrant approval. 41 I am satisfied that the proposal would provide reasonable neighbourhood amenity and would maintain an appropriate residential character. Other matters Privacy 42 In order to reduce adverse privacy impacts likely to be caused by persons using the proposed terrace to unit 3, overlooking the front yard area of the neighbouring dwelling to the southeast, at No 2137A Pittwater Road, in the latest amended plans a fixed privacy screen has been added along the southern edge of the terrace for Unit 3 as shown on the south elevation Drawing DA07-D. A condition is also proposed in this regard. I am satisfied that with this privacy screen in place there would be no unreasonable overlooking to this side of the land. 43 In order to reduce any likely adverse privacy impacts caused by persons using the proposed dining and outdoor terrace of unit No 4 overlooking No 2139 Pittwater Road, the latest amended plans indicate a fixed privacy screen along the northern edge of the terrace of that unit. I am satisfied that this would ensure that the amenity of the occupants of No 2139 Pittwater Road would be maintained in the main living areas of their dwelling and front courtyard to a reasonable level. 44 I accept the evidence of Mr Player that the main living areas within the existing dwelling and the front courtyard area at No 2139 are separated about 9.5 metres (or greater) and this separation would satisfy the 'deemed to comply' criteria of AMCORD for visual privacy. As well that property is elevated above the proposal and would be substantially screened by existing vegetation along the common side property boundary. 45 Also as shown on the plan in Exhibit 17 there would be around 16m-separation between the front of No 2139 and the proposed common quiet area near the proposed entry to the subject development. This separation is more than adequate to address any aural privacy concerns for people entertaining in this location. Tree retention 46 In their joint report the horticultural experts Ms Hobley and Ms Howden accepted the removal of the majority of the indigenous trees from the land provided these trees were replaced as part of the landscaping for the development. 47 Tree No 31, on the boundary with No 2139 Pittwater Road is to be retained. The retention of tree No 31 is significant in providing visual privacy to Units No 2 and 4 (ie. terrace and balcony areas) and the adjoining dwelling at No 2139 Pittwater Road. During the course of the hearing amended conditions were proposed, to as far as is practicable that tree would be retained. This would be achieved by hand-digging for the excavation at the base of this tree and shoring between the sheet piling. Both horticultural experts Ms Hobley and Ms Howden agreed that it should be possible to retain tree No 31, provided suitable protection and management measures are undertaken. Mr Bliss explained that it would be possible to retain the excavation to the side of tree No 31 without the need to sheet pile in its vicinity. 48 The arborists were satisfied that tree No 24 on No 2139 Pittwater Road towards the rear of the land, if properly protected, could be retained. They agreed that the encroachment of a corner of bedrooms 2 and 3 of Unit No 2, despite being excavated into the land, would not detract from the health and vigour of that tree provided excavation was minimised. 1 Condition 9, which the arborists found acceptable, applies and specifies the retention and planting of Casuarina glauca trees as detailed in Dwg No. 0514/DA-L01C, dated 11 July 2006, prepared by Trish Dobson - Landscape Architect, Horticulturist. Ms Dobson's strategy addressed maintenance issues such as irrigation, soil testing, weeding, plant staking, fertilising, pest and disease control, replanting, remedial pruning and the like. I would not refuse the application for reason of the removal of the trees on the land. Impact on water table 2 Messrs Dixon and Alexopoulos were concerned that if the water table were drawn down during construction that the mild steel screw piles used to support the dwelling at No 2137 Pittwater Road might corrode. Mr Bliss confirmed that the likely draw down in the water table of around 200mm to 300mm, and would be only over a short period of time and in his opinion little, if any, acid sulphate corrosion of the screw piling of the property at No 2137 Pittwater Road would be likely to occur. Width of car park 3 Mr Smith asked whether the width of the underground car park would need to be widened now that the plans show a new column supporting the roof of the car park. Mr Bliss explained that, as the proposed new column would not obstruct the opening of car doors in adjacent spaces that the width of the car park would not need to be widened. Thus the extent of excavation would remain as shown on the plans. Overland flow path 3.1 The applicant proposes overland flow paths for stormwater on each side of the proposal within the subject land. The council was concerned that no scouring of the garden beds in the path of the flow should occur on the northern side of the proposed building. The applicant was willing to be bound by a condition in this regard. [Note: See Condition B25] 3.2 For the above reasons, the appeal is upheld. Conditions 3.3 The conditions are those in Exhibit 1 as amended. Conditions included: 30. The sill height of the south facing bedroom [noted as living room on the plans] window of unit 3 should be raised to 1.7m. 31. A window shall be provided along the eastern wall of the bedroom [noted as living room on the plans] of unit 3. 32. The finished floor to ceiling height for bedroom 2 and living room on the southern side of unit 3 and the adjoining bathroom shall be reduced to 2.6m in height and the eave surrounding those rooms and the adjoining bathroom shall be deleted. For the avoidance of doubt this condition does not prevent the installation of a gutter. Orders 3.4 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No N0261/05 lodged with the respondent council on 20 May 2005, to erect four (4) detached, self-contained dwellings under State Environmental Planning Policy (Seniors Living) 2004 (SEPPSL), and to strata subdivide for seniors' living units at Lot 122, DP 1078242, being No 2137B Pittwater Road, Church Point is granted a deferred commencement and subsequently approved subject to Conditions A1 to E15 in Annexure A. 3. The exhibits except for Exhibits A, B, C, D, E, F, G, H, M, R, 1, 3 and 4 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.