Land and Environment Court of New South Wales CITATION : Hromek v Hawkesbury City Council [2010] NSWLEC 1130 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Robert Hromek PARTIES : RESPONDENT Hawkesbury City Council FILE NUMBER(S) : 10127 of 2010 CORAM: Dixon C KEY ISSUES: APPEAL :- section 96 and retrospective approval of a shed Environmental Planning and Assessment Act 1979 Sydney Regional Environmental Plan No. 20 (No. 2) Hawkesbury Nepean River Hawkesbury Local Environmental Plan 1989 LEGISLATION CITED: Draft Hawkesbury Local Environmental Plan 2009 Hawkesbury Development Control Plan 2002 Part A Chapter 2 – General Information Pard D Chapter 8 – Erection of Rural Sheds Moto Projects (No. 2) Pty Ltd v North Sydney Council (1999) 106 LGRA 298 Zhang v Canterbury City Council [2001] NSWCA 167 Richard v Baulkham Hills Shire Council (2008) NSWLEC 1503 CASES CITED: Ireland v Cessnock City Council 110 LGERA 311 Kouflidis and Jenguin Pty Ltd v Corporation of the City of Sailsbury (1982) 29 SAJR 321 Jonah Pty Ltd v Pittwater Council (2006) NSWLEC 99 Longa v Blacktown City council (1985) 54 LGERA at 308 Windy Drop Down v Warringah Council (2000) LGRA 299 DATES OF HEARING: 18 May 2010, 19 May 2010 and 23 May 2010 DATE OF JUDGMENT: 2 June 2010 APPLICANT Mr G McKee (solicitor) SOLICITOR Mckees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr S Griffiths (solicitor) SOLICITOR Pikes Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Dixon C 2 June 2010 10127 of 2010 Robert Hromek v Hawkesbury City Council JUDGMENT 1 This is an appeal pursuant to section 96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against Hawkesbury City Council's refusal to allow a modification of a rural shed on the applicant's property at 457 East Kurrajong Road, Kurrajong (the site). 2 According to the evidence, on 12 November 2002 council approved the development of a rural shed (144m2) with an open awning (72m2) on its northern elevation on the site. However, the applicant has built a larger shed (216m2) and awning across the front of the shed on its eastern elevation. 3 The applicant now seeks to modify council's consent (MA 1305/01) and obtain retrospective approval (MA 1305/01B) for the following works: 1. The enclosure of area indicated as "open awning area" on the approved plans on the northern side of the shed. 2. The substitution of the external colours of the building and roof. 3. The addition of an awning to the eastern elevation of the shed. 4. Addition of a shower room internally on the western side of the shed. 4 Council contends the application should be refused because the modified development has an adverse visual impact when viewed from the premises immediately to the south and the west and from East Kurrajong Road. The council further contends that the modified development does not comply with Hawkesbury Local Environmental Plan1989 and the Draft Local Environmental Plan 2009 and Hawkesbury Development Control Plan 2002. 5 Based on the evidence, including a view of the site and the neighbouring property, and a consideration of the matters raised by sections 96(2)(a), 96(3) and 79C(1) of the Environmental Planning and Assessment Act 1979 (the Act) I am satisfied that the modified development is substantially the same development as that originally approved and that this application is acceptable, subject to the agreed conditions, on a merit assessment. Therefore I uphold the appeal and grant consent to this application for the following reasons. Background 6 The facts and history of the development of this shed on the site are set out in the Statement of Facts and Contentions filed by the parties on 12 April 2010. I have read and understand those facts and issues and do not need to repeat. 7 The relevant statutory controls are: Sydney Regional Environmental Plan No. 20 (No. 2) Hawkesbury Nepean River Hawkesbury Local Environmental Plan 1989 Draft Hawkesbury Local Environmental Plan 2009 Hawkesbury Development Control Plan 2002 Part A Chapter 2 – General Information Pard D Chapter 8 – Erection of Rural Sheds 8 The view confirmed the written evidence that the site is within an area that could reasonably be described as characterised by rural and rural residential land uses. The land is zoned rural living under the Hawkesbury Local Environmental Plan 1989 (LEP) and RU4 under the Hawkesbury draft LEP 2009 (DLEP). The development is permissible with consent. 9 The site has an area of 4.1 hectares and is of an irregular shape. It contains a dwelling house, a dam and the shed that is erected 12 metres from the southern boundary adjoining the main objector's property. The applicant's evidence is that the shed is in its current position because of condition 6 of the original consent which states: "6. The shed is to be set back from the rear boundary of 453 East Kurrajong Road, as close as possible to the dam without affecting the structural stability of the dam". 10 The erection of the shed 12 m from the southern boundary of the site has required that it be built on fill and stand about 1.5 metres higher than ground level at its north western corner. Had the shed been erected 10 m from the southern boundary it would, according to the evidence, be about 1 metre above ground level on fill. 11 I have read and considered the planning controls and documents in Council's bundle including the council's planner's assessment report dated 23 February 2010, which recommended approval of this application. I have also read the written objections lodged in response to the notification of this application. 12 The hearing of this appeal commenced onsite and was completed at Council's chambers. The town planning experts, Mr Sinclair for the council and Mr Sarich for the applicant, gave evidence at the hearing based on their joint report (Exhibit 4). Mr Sinclair's also spoke to his statement of evidence (Exhibit 2). At the view I observed , at the request of the parties, the shed from within the site and public road and the objector's home and yard. 13 The owner of the property to the south of the shed gave evidence onsite about her concerns with the proposed development. I was better able to understand those objections when I stood in her home and rear yard and observed the shed. Essentially her concerns are the colour of the shed, its reflective roof; its bulk and scale and it's overshadowing of her vegetable garden and the lack of appropriate landscaping on the site's southern boundary. 14 After the completion of the evidence and submissions at council chambers I adjourned the matter and directed the parties to forward draft conditions of consent to the Court so that I could deliver an ex temp decision the next day. However, I was unable to do so because the conditions of consent drafted by council and forwarded to the Court excluded all reference to the shower room, which was part of application, furthermore, the draft included a reference to a consent which was not the subject of this application. Again I invited the parties to clarify the plans and resolve the shower room sewerage and drainage issues raised by council after the conclusion of the evidence. Eventually the parties agreed to a set of plans and conditions and council conceded that it was satisfied with the approved works for the shower room .It is unfortunate that these issues about the shower room and the plans were not dealt with before the conclusion of the evidence because the late raising of these issues caused both delay and unnecessary court attendances and expense to both parties. Contentions 15 The position, size and colour of the shed are the subject matter of the contentions in this appeal. 16 According to the facts and contentions the position of the shed has an unacceptable impact on the scenic quality of the area and is inconsistent with the zone objectives of the Rural Living Zone of the LEP and the Draft LEP because of its height above natural ground level particularly at its northern end and because the colour of the shed is not in keeping with the rural landscape character. The contentions state, "It is not an earthy tone that blends in with the surrounding landscape, which is characterised by green trees and vegetation." 17 Council also contends that it is also inconsistent with the aims and objectives of the Rural Shed Chapter of the DCP. Clause 8.1 of the DCP requires that rural sheds must compliment the rural character of the landscape and have minimal impact upon the scenic qualities of an area. 18 Council contends that the proposed modification is inconsistent with objective (c) of the LEP: " to protect attractive landscapes and preserve places of beauty, including wetlands and waterways." 19 A further contention is that the modified development is inconsistent with objectives 2 and 4 of the RU4 zone in the Draft LEP respectively: "To maintain the rural and scenic character of the land" "To minimise conflict between land uses within the zones and land uses within the adjoining zone" and inconsistent with the aims and objectives of the DCP in particular, it does not comply with the requirements in Part D Chapter 8- Rural Sheds. 20 Council submits " that there is no evidence of any agricultural purpose being undertaken on the property which is a prerequisite for a large rural shed nor is the proposed modification to include the shower room to be used consistently with any rural or agricultural purposes justified in any documentation." 21 The council contends that the development is not substantially the same development as approved in as much as there is no evidence of its use for rural or agricultural purposes. 22 It will set an undesirable precedent for similar inappropriate development and this would not be in the public interest. 23 The council also lists in its facts and contentions certain remediation measures which it submits "will lessen the impact on the landscape character and adjoining owners" During the course of the hearing the applicant agreed to accept conditions which adopted these remediation actions. I will deal with the conditions later. Substantially the same development 24 Before any consideration of the merits of this modification application under section 96(3) of the Act I must be satisfied pursuant section 96(2)(a) that "the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted was modified (if at all)" 25 The parties do not agree about this issue. 26 The applicant submits that the original development consent approved a "shed" and that the modified development can still be characterised as a shed. The original consent does not qualify the description as to the use of the shed and the approved plans do not provide any particular detail to define the approval for anything other than a shed The applicant submits that If I compare the "before and after" as the case of Moto Projects (No. 2) Pty Ltd v North Sydney Council (1999) 106 LGRA 298 directs the essential character of what was originally approved by the development consent issued by council on this rural property is a shed and what is proposed by the modification is still a shed. 27 The applicant also relies on the assessment by council's planner at page 309 of exhibit 1 which assesses that the development as modified is substantially the same as the original development consent. 28 In submitting that the development as modified is not substantially the same as that originally approved council relies on the evidence of Mr Sinclair who states at Para 2.3 of his statement of evidence (Exhibit 2): "This is not substantially the same application as that which was granted consent in December 2002. The reasons for this are as follows: The shed bears no resemblance to the colours that were included in the development consent. The walls are beige and should have been mid tone green and the roof should have been beige and non reflective and is now grey and reflective. This shed is totally enclosed with no open awning. An additional 3 m wide awning has been added to the entire length of front of the shed (12m). The shed is not cut into the ground by 1300mm and sitting on 300 mm of fill. In fact the cut is minimal and the fill is 1500 mm, which is substantially different to that which was approved. The plans, which accompanied the original application in 2002, showed the presence of the peach orchard on the property. The peach orchard has since been removed. For this to be treated as a section 96 modification it must be of minimal environmental impact to be substantially the same development to that which was originally consented to. As discussed in section 2.1 it has considerable environmental impact in that causes loss of visual amenity to the adjoining owners as well as being detrimental to the rural landscape character. It is also not substantially the same development of the reasons outlined above." 29 In addition to those reasons council also submits that the fact that the shed is clean and does not contain feed or rural machinery (other than the tractor parked in it at the time of the view) it is not a rural shed and therefore is not substantially the same development as that originally approved namely a rural shed. Finding on substantially the same 30 I find the modified development to be substantially the same as that originally approved. 31 I am satisfied that I have jurisdiction under section 96(2)(a) of the Act because I accept the applicant's submission that the original development consent approved a shed without qualification and the modified development is for a shed. The original consent did not state a "rural shed' but simply approved a "shed". In applying the "before and after" test discussed in the decision of Moto to the facts of this case I accept that the modified development in this application is substantially the same as that originally approved. 32 I accept that Council's planner's assessment, which the applicant relies on ,that the modified development is substantially the same development as originally approved by council (page 305 of Exhibit 1.) 33 I find it irrelevant that the shed was clean and did not contain feed or rural machinery as basis for a submission that the modified development not substantially the same as the original consent. I also reject Mr Sinclair's assessment that it is not substantially the same because it is longer and has an awning in a different location to that originally approved. A larger shed in the circumstances of this application is still characterised as a shed. Exempt and Complying Development 34 The applicant did not press the submission that this development is exempt and compiling development because the evidence given disclosed that it would be used for rural, hobby and storage purposes. On that basis the applicant accepted that it was not capable of being characterised as "exempt and complying development" because clause 3.11 only permits as complying development an outbuilding of 200m2 if it is for agricultural purposes only. Planning Evidence 35 I have read the joint report prepared by the planners and Mr Sinclair's expert statement and the council's assessment report in respect of this application. This planning evidence was discussed by the planners onsite and at the resumed hearing at council chambers. 36 Mr Sinclair's evidence is that the modified development is visually prominent in the landscape and the roof colour is reflective and causes glare. His evidence is that additional fill has had the effect of raising the shed in height and this has necessitated screen planting of some height on the southern boundary, which overshadows the neighbour's vegetable patch. His evidence is that the shed is visible from the neighbours existing outhouse and the new dwelling. 37 Mr Sinclair states in the joint report at p4 "The shed at present is constructed of the incorrect colours – both for the roof and walls. It is the sum total of both that causes it to not "…preserve the rural landscape character of the area by controlling the choice and colour of building materials and the position of buildings, access roads and landscaping (Hawkesbury LEP 1989 Rural Living Zone Objective (f), It also does not: "…enable the erection of sheds on rural properties within the Hawkesbury City Council area in a manner which compliments the rural character of the landscape and has minimal impact on the scenic qualities of the area" (Hawkesbury DCP clause 8.1 Part C). 38 Mr Sinclair when giving evidence at council chambers confirmed his earlier evidence onsite that the painting of the shed "rivergum green" (on the southern, western and eastern façade) and painting the roof a less reflective green would together with appropriate planting on the southern and western boundaries (as determined by Council's landscape officer) ameliorate his concerns with this modified development. 39 Based on Mr Sinclair's planning evidence onsite and confirmed at the resumed hearing at council's chambers there is no planning evidence from council in respect of the planning controls including the DCP provisions which are the focal point of my consideration to support a refusal of this application on its merits. 40 I have read the letters of objectors in council's bundle of documents and inspected the site and the adjoining owner's property to the south. I appreciate her concerns about the size of the shed, its visual impact from her home and yard, its colour and reflective roof and the issues she has about the appropriateness and adequacy of the landscaping on the southern boundary. 41 However, I accept the evidence of the applicant and Mr Sinclair that painting the shed "rivergum green" and painting the roof a less reflective colour together with appropriate planting and landscaping will lessen the visual impact of the shed when viewed from the neighbour's rear yard and outhouse and home. I accept the applicant's evidence that this will satisfactorily address the neighbour's concerns. 42 The fact is council has approved the development of a shed in the location built and in my opinion based on the evidence the modified development will not cause any additional adverse impact to the neighbouring properties if as Mr Sarich suggests the agreed conditions are implemented. 43 Furthermore, I accept the evidence of the applicant that the additional planting proposed along the western boundary of the site will address the visual amenity issues raised by the objector to the west of the site and the concerns expressed by council about the visual impact from the public road because it will provide a landscaped buffer which in time will to a large extent hide the shed. . Applicant's evidence 44 I have read Mr Sarich's comments in the joint report that support approval of this application. He adopts the assessment of council's planner who recommended that the modified development is acceptable on a merit assessment. 45 Relevantly, council's assessment officer assess at FOLIO 310 of Exhibit 1 that the proposed modified development is consistent with the general aims and objectives as outlined in Clause 2 of the Hawkesbury LEP 1979. The proposed modified development is defined as a 'rural shed' which means by Clause 5: 'a building or structure used for storage of the property of the occupies of the subject land or property associated with an agricultural use or other permissible land use conducted on the same parcel of land, but does not include a building or structure elsewhere specifically defined in this clause or a building or structure used fro a purpose elsewhere specifically defined in this clause.' 46 The land is zoned Rural Living under the Hawkesbury LEP the rural shed is permissible with consent. The applicant's evidence is that the shed will be used for rural. storage and hobbies uses associated with the property. I am told that the shower room will provide a place to shower and clean up after working on the rural property. The view in my opinion confirmed that evidence about the uses of the shed to be a fact. 47 The objectives of the zone in Clause 9A – include to provide primarily for a rural residential lifestyle (f) to preserve the rural landscape character of the area by controlling the choice of colours and building materials and the position of buildings, access to roads and landscaping. 48 Clause 19 Hawkesbury LEP provides consent will not be granted unless satisfactory arrangements have been made for the provision of water, sewerage, drainage and electricity to the land. Mr Griffiths confirmed that the council is satisfied with the sewerage and drainage issues for the shower room and this is not an issue. This is consistent with Council's assessing officer reports at FOLIO 311 of Exhibit 1 – which states that The proposed modified development is consistent with the Hawkesbury LEP 1989 Rural Living Zone objective and "services to the property exist and are considered adequate for the proposal". 49 The council officer assesses the modified development will not significantly impact on the environment of the Hawkesbury – Nepean River and assesses it is not inconsistent with the general objectives and aims, planning considerations, planning policies, recommended strategies and development controls. 50 The draft Hawkesbury LEP 2009 which applies to the site exhibited on 5 February 2010 to 12 April 2010 – proposes the subject land will be zoned RU 4 Rural Small Holdings. Council reports at FOLIO 312 the proposed development is ancillary to the residential use of the land and is therefore permissible with consent under this draft plan. The applicant's evidence confirms the shed will be ancillary to the residential use of the land and I accept it is permissible under the draft LEP. 51 Council assesses that the proposed modified development is not inconsistent with the objection of the RU 4 zone (FOLIO 312 of Exhibit 1). 52 Under the Hawkesbury LEP – Rural Shed Chapter the aim is to enable the erection of sheds on rural properties in a manner, which compliments the rural character of the landscape and has minimal impact on the scenic qualities of an area and to provide design principles for the construction of these buildings. 53 With respect to the siting of the shed the council report at FOLIO 313 assesses that despite the fact that the shed is built on a level platform constructed using approximately 1.3 fill on a slope exceeding 10% (only slightly 10.9%) it is supported because the variation in slope is minor, the use of cut and fill to create a platform is consistent with the requirements of the DCP, the location of the proposed shed is considered appropriate as: It provides a satisfactory setback from the boundary of 453 East Kurrajong Road, to minimise any impacts in terms of privacy, overshadowing and loss of views. Minimal cut and fill and land disturbance is required. The removal of nature vegetation will not be required. 54 While the DCP currently has a max size of 150 square metres for a shed under the Draft Hawkesbury LEP 2009 that size increases to 170 square metres. It is a relevant consideration because the plan has been exhibited through it is not determinative in my assessment of the application. 55 The shed height complies with the DCP requirement. It complies with the roof requirement to be rectangular shape. 56 The applicant agrees to conditions of approval to change the colour of the walls of the shed and the colour and reflective finish of the roof. 57 With respect to landscaping the council officer assessed that the landscaping plan approved by the Construction Certificate has not been carried out – however the applicant agrees to a condition to address any concern about appropriate landscaping. 58 With respect to the enclosing of the 6 x 12 meter awning on the northern side of the shed the officer assesses that this causes no impact for any of the surrounding properties because the changes are on the backside of the structure. It would be visually no different to the neighbours. In fact the officer says that the change would enhance the shed's visual appearance being rectangular rather than square. 59 The structure is set back 50 metres from the road with comprehensive landscaping to screen the entire structure. 60 At FOLIO 316 the council assess the enclosed awning has no adverse impact on adjoining properties due to the distance of the shed from the dwelling house to the west. 61 The proposed shed is not inconsistent with the aims and objections of Clause 8.2.2 of the DCP as the structure is not considered to be visually dominating in the landscape and the size is appropriate in relation to the size of the property. 62 The proposed awning on the eastern elevation of the shed has no actual visual impact on the locality. The council officer assess at FOLIO 317 the scale and design of the proposed development is typical of rural sheds in the locality and the impacts to the property to the south can be mitigated with completion of the landscape plan. 63 And for the above reasons, which the applicant adopts, the application was recommended for approval but refused at the council meeting. Finding on planning evidence 64 Based on the final expert evidence given by Mr Sinclair for the Council: that appropriate colours and painting of the shed and roof together with landscaping would ameliorate any concern about the modification application I have little evidence from council to support a refusal of this application on a merit assessment apart for the issues raised by the objector which on the applicant's evidence can be adequately addressed by conditions. 65 Council assessment report in respect of this application on the merits recommended approval and I accept that evidence referred to above from Exhibit 1. The applicant's planning experts evidence in the joint report and onsite is (at page 4 of Exhibit 4): "In my opinion, the shed compliments the rural character of the landscape and has minimal impact on the scenic qualities of the area which is one of the zone objectives:. 66 Although Mr Sarich has no issue with beige colour and says the proposed planting in time will screen the visual impact of the shed from the road and the neighbour's property the applicant has agreed to accept the colour and finishes Mr Sinclair and council request.. 67 Mr Sarich's evidence supports council's assessment that this larger shed fits in with the rural landscape and the additional awning breaks and softens the roofline of the shed and its visual impact. The applicant's expert evidence is that the variation of the DCP control concerning the max size of a shed at 150 square metres under the current control is justified in the circumstances of this case because of the setback of the shed from the road and 12 metres setback from the southern boundary, which adjoins the objector's property. The applicant's evidence is that despite the size of the shed it is not visually dominant in the landscape and it is a rural shed used in association with the rural property and is appropriate given the size of the property. The applicant's submission is that it achieves the aims and objectives in Part 8.2.2 . 68 I have considered the provisions of the DCP as a focal point of my consideration of the merits of this application under section 79C(1) of the Act: Zang. However, having regard to the evidence, I am satisfied that in the particular circumstances of the case, the site, the slope, the setback, the proposed "river green" colour and that landscaping on a merit assessment under section 79C(1) justifies a variation of the DCP provision in Clause 8.2.2(a) that provides the maximum size of sheds in the relevant zone 1(c1) areas shall not exceed 150 square metres. I prefer the applicant's evidence and council's officers assessment report which at FOLIO 316 of Exhibit 1 reads that: "The proposed modified shed is not inconsistent with the aims and objections of Clause 8.2.2 size of the erection of rural sheds chapter of the Development Control Plan, as the structure is not considered to be visually dominating in the landscape and the size is appropriate in relation to the size of the property". 69 Based on the evidence I am satisfied that the variation of the numerical compliance with DCP clause 8.2.2 will still achieve compliance with the objectives of the DCP. I am also satisfied on the facts of this case that a variation of clause 8.2.2 of the DCP will have no precedent effect in the locality because of the particular facts of this case. Each case must be decided by its own particular facts: Segal The law 70 To assist me in my assessment of this application the council's helpfully referred me to a number of decisions. Apart from the decision of Zhang v Canterbury City Council [2001] NSWCA 167 and the need to have the DCP as the focal point of my assessment of this application the council also referred me to other decision that it was submitted were also relevant in my determination of the application. I have read those decisions. 71 In particular Council referred me to the decision of Richard v Baulkham Hills Shire Council (2008) NSWLEC 1503 wherein the Court sets out certain questions (discussed by Bignold J in Ireland v Cessnock City Council 110 LGERA 311) which the council says are relevant in my consideration of this application and provide a guide as to the approach I should adopt in this case.. 72 The first question to be asked according to that case concerns whether the development is structurally sound. However that is not a relevant issue in this appeal. 73 The second question is a 'consideration of the appropriateness, on broad planning grounds, of the structure being permitted to remain and be used for the proposed purpose. 74 As I understand council's submission I must refer to the relevant statutory considerations under section 96 and s 79C(1) and that I should not approach this appeal on the basis "well it is constructed lets make the best of it". 75 I agree 76 I am very conscious of the requirements that I have regard to the relevant statutory considerations in section 96 and 79C(1) of the Act in the exercise of my discretion under section 96(2). 77 Council also referred me to the judgment of King CJ in the South Australia decision of Kouflidis and Jenguin Pty Ltd v Corporation of the City of Sailsbury (1982) 29 SAJR 321. As I understand council's submission, I must not have regard to the illegality of the constructed shed as a relevant factor in determining whether consent should be granted. 78 Again I agree. 79 However, I accept the applicant's submission that Jonah Pty Ltd v Pittwater Council (2006) NSWLEC 99 provides some guidance as to the approach I should adopt in this case. In accepting Kouflidis and the decision of Bignold J's in Longa v Blacktown City council (1985) 54 LGERA at 308 1 para 26 of Jonah) Preston CJ held: "… section 79c(1)(e) "the public interest" does not preclude the granting of development consent to allow the prospective use of an illegally erected building. The grant of the consent does not sanction the illegality …" because it is not a relevant fact when making (in this case a section 96 modification) an assessment under 79C(1) of the merits of the modified development. 80 The Court's decision of Windy Drop Down v Warringah Council (2000) LGRA 299 which the applicant refers me to relevantly states: The carrying out of illegal works generally is not an impediment to the consideration of a application on its merits". 81 I accept the applicant's submission that the fact the shed is built is not relevant but it does provide me with an opportunity to see the visual impacts of the proposed modification and appreciate the impacts against the controls. In fact the parties invited me to do just that at the view and I am able to rely on what I observed at the view from the site, the street and the neighbour's property to appreciate the impacts of the proposed modified development and take that those matters into account in a merit assessment under section 96 and 79C(1). 82 Having considered all of the evidence I accept the applicant's planning evidence, which is supported by council's assessment report and in part by Mr Sinclair. Based on an assessment under section 96(3), which refers me to the relevant matters in 79C(1) I am satisfied that the modified development is acceptable on its merits in the particular circumstances of this case. Therefore I have decided to exercise my discretion under section 96(2) to approve the modification application and uphold the approval subject to the conditions attached marked annexure A.. 83 The Court's orders are: 1. The appeal is upheld. 2. Modification application MA1305/01B is approved subject to the conditions marked Annexure A hereto. 3. Exhibits returned. ___________________ Susan Dixon Commissioner of the Court ljr 04/06/2010 - Typographical error - Paragraph(s) Coversheet, 80 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.