Land and Environment Court of New South Wales CITATION : Ingham Planning Pty Ltd v Manly Council [2007] NSWLEC 247 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Ingham Planning Pty Ltd PARTIES : RESPONDENT Manly Council FILE NUMBER(S) : 11008 of 2006 CORAM: Hoffman C KEY ISSUES: Development Application :- replace an existing 4-storey building with a new 4-storey building, floor space ratio, density, wall height, side setbacks, streetscape, shadows, bulk/scale, privacy. Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 65 LEGISLATION CITED: State Environmental Planning Policy No 10 Manly Local Environmental Plan 1998 Manly Development Control Plan for the Residential Zones 2001 DATES OF HEARING: 21/03/2007 and 22/03/2007 DATE OF JUDGMENT: 4 May 2007 APPLICANT Mr C. McEwen, SC Instructed by Mr M. Staunton of Staunton and Beattie LEGAL REPRESENTATIVES: RESPONDENT Mr S. Griffiths, solicitor Instructed by Ms R. Vickers of Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Commissioner Hoffman 4 May 2007 11008 of 2006 Ingham Planning Pty Ltd v Manly Council JUDGMENT 1 This is a Class1 Appeal No. 11008 of 2006 between Ingham Planning Pty Ltd and Manly council in regard to the deemed refusal of consent to demolish an existing 4-storey building containing 10 studio apartments and one cottage and a garage, and replace them with a new 4-storey building with only one apartment per floor and underground part-basement carpark for 6 cars plus one above ground visitor space at Nos. 11-13 The Crescent, Manly Cove. 2 The proposed carpark has a ramp down from The Crescent along the southern boundary. The main building of the proposal is set about 16m back from The Crescent at about the same distance as the existing main building. The "front setback" has the majority of the carpark to be excavated beneath it. The roof of the carpark (not including the ramp) is to be landscaped, with a visitor car space bay indented off the street adjoining the pedestrian entry path that is alongside the northern boundary. 3 The proposed new building sits generally within the footprint of the existing main building, but in parts is higher by about 3 m. At the Manly Cove end however, it is about 3 m lower than the existing building due to the top floor being set back 5 m – 8 m variable from the eastern façade. A roof terrace for the penthouse extends out to the eastern façade, and a pergola over it comes to within 3 m and 6 m variable of the eastern façade. The eastern façade is set back from the Commonwealth Parade boundary 3.5 m – 7 m variable, which is similar to the existing building. 4 The two street numbers need explanation because the existing building is on one allotment. It seems it was built in 1917 as two large semi-detached dwellings, "Kia Ora" and "Minnawarra". There is a garage and a 1-storey cottage between the main building and The Crescent that are also to be demolished. The allotment runs between The Crescent on the high west end of the lot, down to Commonwealth Parade on the low east end; a fall of about 9 m. The Parade fronts the foreshore reserve of Manly Cove, and opposite the site is the Manly Pier and Aquarium partly on land and partly over the harbour. 5 The allotment has a frontage to The Crescent of 9.145 m, a variable length of about 45 m and a frontage to the Parade of 15.235 m. The shape of the lot is a polygon due to no one side being parallel to another. This results in both side boundaries being splayed to the street frontages, and splayed to each other. This is due to the streets following generally the line of the foreshore around the cove and then around a promontory just south of the site. All the nearby lots, although of different sizes have a splayed form with a narrower frontage to The Crescent and a wider one to the Parade. 6 Across The Crescent from the site, on an elevated lot is "Dun Aros" a Victorian style heritage item. Just north of the site is another heritage item No.7 The Crescent, an 8-storey block of flats called "Hilder Lea" built around 1917 in the Chicago style. Between it and the site is No. 9 a 1960's block of flats 3-storeys high. 7 South of the site on No.15 are two Federation style bungalows as a dual occupancy, one at each end of their lot. Due to the slope the house on the Parade end is elevated on a sandstone base. 8 No. 17 is a 2-storey duplex set at the Parade end of the lot with a carport off The Crescent. It also is elevated on a sandstone base. 9 No.19-21 is a 3-storey block of flats of 1960-70 vintage on a lot that fronts The Crescent only. Behind it is No. 23 another 3-storey block of flats of earlier vintage, on a lot that fronts The Parade only. They appear to be on land that originally held the mansion Roslyn Hall according to maps in the G. Brooks heritage report in evidence. 10 The existing building on the subject site is also elevated on a sandstone base that forms the lowest floor. The sandstone is partly obscured by the enclosure of what would have been originally verandas on each level. 11 Along the Parade from No.1-3 on the corner with Fairlight St, including the site and around the promontory there is a continuous sandstone retaining wall on the front boundaries of all these properties. It varies in height, and on the subject property is about 2.4 m high. There is no vehicular access from the Parade but each building has a pedestrian gate and steps up to each building. In the case of the subject land, there are two pedestrian entries from The Parade, one along each side boundary to the respective porches of Kia Ora and Minnawarra located on the side facades. 12 Across the Parade are other heritage items being The West Esplanade Park itself and the Manly Dressing Pavilion and Amenities Block and the Manly Cove Pavilion. The foreshore, its rocks, beaches vegetation etc, is a landscape heritage item. 13 On the uphill side of The Crescent opposite the site is a 1-storey bungalow behind a sandstone wall on the street boundary. It sits between "Dun Aros" and a 2-storey block of Art Deco style flats that also sit on top of a sandstone wall on the street boundary. On both the bungalow and flats properties garage doors are built into the sandstone walls at street level. The Art Deco flats are on the corner of The Crescent and Fairlight Street. The Statutory Controls 14 The following are the relevant applicable statutory planning instruments, namely: o State Environmental Planning Policy No 10 - Retention of Low Cost Rental Accommodation. 15 The subject site contains buildings that provide 11 studio/1 bedroom dwelling units, four of which have shared facilities. The buildings provide low rental accommodation as defined in Clause 3A of SEPP 10. o State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development o Manly Local Environmental Plan 1988 16 The site is within Zone No 2 - Residential zone and the proposal is permissible with consent. The relevant clauses of the LEP for consideration include:­ o Clause 3 Aims and Objectives o Clause 10 Objectives of Zone 2 o Clause 17 - Visual and Aesthetic Protection of Certain Land o Clause 19 Development in the vicinity of an Item of the Environmental Heritage o Manly Development Control Plan for the Residential Zones 2001 (DCP) 17 The site is within the residential density sub-zone 2 and Building Height sub-zone 2 under the Manly DCP. Relevant clauses of the LEP for consideration are:-, "A5 Aims and Objectives of the DCP 3.1 Residential Density and Subdivision; 3.2 Open Space and Landscape Design; 3.3 Floor Space Ratio; 3.4 Building; 3.5 Setbacks: 3.6 Excavation/Cut and Fill; 3.7 Overshadowing; 3.8 View Sharing, 3.9 Streetscape; 3.10 Privacy and Security; 3.11 Protection of Heritage items and Conservation Areas 3.12 Parking an d Access." Date of application: 28 June 2006. Notification between 12 July 2006 to 31 July 2006 in accordance with Council's policy. Seven submissions of objection were received by Council during the notification period. The Fairlight Precinct Committee considered the development application on 10 August 2006 and recommended refusal of the application in its present form. The issues Non-compliance with the Zone Objectives 1 The proposed development Is not compatible with the Zone 2 - Residential Zone objectives in Clause 10 of Manly Local Environmental Plan 1988, as amended ("LEP 1988"). Particulars A Clause 10(3) of Manly LEP 1988 requires: "(3) Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out." B The proposed demolition of the existing buildings on the site and erection of a 4 storey residential flat building comprising 4 dwelling units and 7 car parking spaces will not be compatible with the following relevant zone objectives: "(b) to delineate, by means of development control in the supporting material, the nature and intended future of the residential areas within the Municipality; (c) to allow a variety of housing types while maintaining the existing character of residential areas throughout the Manly Council area; (d) to ensure that building form, including alterations and additions, does not degrade the amenity of surrounding residents of the existing quality of the environment; (e) to improve the quality of the residential areas by encouraging landscaping and permitting greater flexibility of design in both new development and renovations; (h) to encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment." Foreshore Scenic Protection Area 2 The proposed development is not compatible with Clause 17 of Manly LEP 1988. Particulars a The subject site is within the Foreshore Scenic Protection Area under cl 17 of the Manly LEP. b The design of the proposed new building does not satisfy the provisions of cl 17 which states: "17. Visual and aesthetic protection of certain land The Council shall not grant consent to the carrying out of development unless it is satisfied that the development will not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area." c The proposed development does not respond to the character of the locality and does not satisfy the requirements of parts 2.1, 2.5 and 2.6 of Manly Residential Development Control Plan (DCP) 2001 Heritage 3 The proposed development does not satisfy the provisions of cl 19 of the Manly LEP 1988 in respect to the adverse impact on items of environmental heritage in the vicinity of the site. Particulars a Clause 19 of the Manly LEP 1988 states: " 19. Development in the vicinity of an item of the environmental heritage The Council shall not grant consent to a development application to carry out development in the vicinity of an item of the environmental heritage unless it has made an assessment of the effect which the carrying out of that development will have on the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the item of the environmental heritage and its setting". b The subject is in the vicinity of five heritage items listed under Schedule 4 of Manly LEP 1988, namely: o 7 Commonwealth Parade - "Hilder Lea Flats"; o 10 The Crescent - "Dun Aros"; o West Esplanade Park; o Manly Dressing Pavilion and Amenities Block; and o Manly Cove Pavilion. Non-compliance with Manly Development Control Plan for the Residential Zone 2001 4 The proposed development will contravene the objectives and controls of the Manly Development Control Plan for the Residential Zone 2001 DCP namely: A5 Aims and Objectives of the DCP 3.1 Residential Density and Subdivision; 3.2 Open Space and Landscape Design; 3.3 Floor Space Ratio; 3.4 Building; 3.5 Setbacks; 3.7 Overshadowing; 3.8 View Sharing; 3.10 Privacy and Security; 3.11 Protection of Heritage Items and Conservation Areas." Particulars a The proposed development is contrary to the general aims (b), (d), (e) and (f) and specific objectives (c), (d), (e) and (j) at s A5 of Manly DCP. b The subject site is in Residential Density sub-zone 2, which provides for 1 unit per 150 sq m of site area. The site has an area of 526.1 sq m and the application proposes 4 dwelling units. c The subject site requires a minimum of 50% of the site area for open space with a minimum of 30% of that open space being "soft open space". The proposed development does not satisfy the open space and private open space requirements as defined in 3.2.2(c), (d), (e), (f), (g), (i) (c) and (i) (f). d The maximum floor space ratio of 0.75:1 is permissible on the subject site. The proposal has an FSR of 1.14:1. e The subject site is in the Height sub-zone 2. The maximum wall heights permissible under 3.4.2(ii) are 10.15 m (northern) and 10.25 m (southern). Parapets are permitted up to 1.00 m above maximum wall height subject to 3.4.2(iii) (a). The proposed development has a maximum wall height on the northern side of 13.2 m. f The proposed development does not comply with the Side Boundary Setbacks required in 3.5.2(ii). The Manly DCP requires the following: Wall Height Required Side Proposed Side Setback Setback Northern Side Min 9.8 m 3.27 m 2.8 m Max 13.2 m 4.4 m 1.2 m Southern Side Min 9.2 m 3.07 m 4.2 m Max 10.5 m 3.5 m 2.6 m g The proposed development does not satisfy the Overshadowing objectives in 3.7.1 and Performance Criteria 3.7.2 in respect to adjoining dwelling at 15 The Crescent. h The proposed development does not satisfy the View Sharing objectives in 3.8.1 and Performance Criteria in 3.8.2 in respect to adjoining dwellings and dwelling in the vicinity, namely: o Dwelling units 3 and 5 in 9 The Crescent; and o Dwelling unit 4 in 6 George Street. i. The proximity of balconies to the side boundary of 15 The Crescent is contrary to the Privacy objectives in 3.10.1 and Performance Criteria in 3.10.2. j The proposal does not satisfy the Heritage objective in 3.11.1(c) and Performance Criteria in 3.11.2(c). Detrimental Amenity Impacts on Adjoining Dwellings 5 The proposed development is likely to have detrimental amenity impacts on adjoining residential properties in terms of privacy (both aural and visual), overshadowing and view loss. Particular a The proximity of the proposed development will have detrimental privacy impacts on adjoining properties at 9 and 15 The Crescent. b The proposal will have overshadowing impacts on dwelling at 15 The Crescent. c The Proposal will result in view loss from units 3 and 5 at 9 The Crescent. Streetscape 6 The design of the proposed development including the facade treatment, built form and massing and the excessive use of glazing will not be compatible with the streetscape of Commonwealth Parade. SEPP 65 7 The proposed development does not satisfy the design quality principles in Part 2 of SEPP 65 - Design Quality of Residential Flat Development in respect to context, built form, density, landscape and amenity. 8 The quality of the internal amenity of the ground floor dwelling unit is considered to be likely to be poor given the lack of solar access and natural light. SEPP 10 9 Whether buildings on the subject site are "low rental residential buildings". OBJECTORS 10 Matters raised by objectors including: a Non-compliance with DCP controls; b Over development of the site; c View loss; d Design not in character with locality; e Streetscape; f Amenity impacts on adjoining dwellings in terms of privacy and overshadowing; g Excessive excavation; h Noise impacts from rooftop terrace; and i Construction impacts. Witnesses 18 The respondents evidence was heard from: + Mr K Nash consultant town planner + Ms L Neil objector #5/9 The Crescent and representative of the Body Corporate of No. 9 The Crescent. + Mr R Hewitt objector #1/17 The Crescent + Ms A McGlynn objector #4/9 The Crescent + Mr A. Blair objector #2/9 The Crescent + Ms E Beerworth objector #3/9 The Crescent + Mr P Butterworth objector #4/9 The Crescent. 19 The applicants evidence was heard from: + Mr N Ingham consultant town planner. 20 The heritage experts were not required for cross-examination and Mr Brooks, heritage architect's report was Exhibit A. Evidence 21 The respondent did not press Issue 9 as it agreed with the applicant that SEPP 10 does not apply when an existing building is to be demolished. 22 Although the respondent pressed Issue 3, the heritage experts agreed that the design had no adverse effects upon the nearby heritage items. 23 Mr Nash gave evidence that from a town planning point of view, he said that the character of the heritage items and the other existing buildings except perhaps for No. 9, The Crescent, is for a high ratio of masonry to windows such that masonry predominates and there are few, or small projecting balconies and most buildings have pitched roofs. The proposal has a façade to The Parade where glass and projecting balconies dominate and it has a flat roof. The materials in the façade under the DCP are supposed to reflect those on nearby buildings. 24 Except for the masonry retaining wall on the street boundary, the proposal does not reflect predominant materials in the streetscape. The concrete balconies project forward, there are timber pergolas proposed, vertical louvre metal screens, glass balustrades, and, suspended in front of the upper three balconies facing the Parade a metal frame. 25 It was put to him there are certain resemblances to No. 9 and he replied it could not be put as a good design sample. I agree with that comment, however in view of the heritage experts opinions I feel Mr Nash's evidence on Issue 3 must fall more into the realms of Issues 1, 2, 4, 6 and 7. 26 In regard to Issue 1 and 4 Mr Ingham justifies the proposal on the basis that the council's DCP objectives for Zone 2 in cl 10 of the LEP 1988 are inappropriate, as it does not reflect the existing density or character of the area. He says most of the existing buildings already exceed the density permissible under the Floor Space Ratio and due to the harbour side location it is unlikely that new buildings will reduce floor space to the standard. He claims existing buildings will remain rather than reduce floor space or increase setbacks or reduce height to comply. The proposal fits roughly within the envelope of the existing building and that is reasonable he says provided amenity impacts on neighbours are acceptable. 27 The permissible maximum FSR is 0.75:1 the proposal is 1.14:1 being the same as the existing building. 28 Mr Nash agrees with the calculation and observes this means the proposal is 205 sq m above the maximum, and even with the top floor deleted the proposal would have a FSR of 0.9:1. The density control of one unit / 150 sq m site area gives 3.51 units potential. He adds that with demolition the site is vacant and there should be no problem complying with controls. The extent of non-compliance does not justify four units on site. 29 Mr Nash notes that allowing for a theoretical 1 m parapet height under the DCP the proposals wall heights are in part 2 m above the height limit. The maximum permissible is 11.15 m on the north elevation and 11.25 m on the south. The proposal varies due to the slope of land from 9.8 m – 13.2 m on the north side, and 9.2 – 10.5 m on the south. 30 The exceedence is at the Parade end and that adds to the bulk in that streetscape and to the privacy loss of the upper unit of No. 9. Sliding louvres screens to part of the proposal on its upper balcony to try to overcome the privacy impact only increase the bulk. And, since the screens do not extend the full side of the balcony facing No. 9, it only partially overcomes the privacy impacts, referred to in Issues 4, 5 and 10. Aural privacy also arises due to the separation between buildings being about 2.8 m whereas at the 4th storey level the side setback controls of the DCP would require 4.4 m setback whereas the proposal is 1.2 m. 31 The side setback requirements are a proportion of wall height so that each level up requires a greater setback than the one below. 32 Mr Ingham says the DCP requirements are again inappropriate for the site due to the narrow allotment, as it would make the upper floor of the proposal only about 6 m wide at the Parade end. He notes that except for the balconies, the proposal is designed to have no windows facing windows of No. 9 or No. 15, so lack of setback does not create privacy impacts. 33 Mr Nash notes the lack of the compliance with side setbacks on the south side maintains existing shadow impacts on No. 15 that it might reasonably expect to be reduced with the construction of any new building on No. 11-13 as referred to in Issue 4. 34 Mr Ingham says the main winter shadows are from the 8-storey "Hilder Lea" and that will not change so there is no point in additional setbacks. I note the plans show the proposal increases winter morning shadow for No. 15 when sun is important especially if lost during the rest of the day because of "Hilder Lea". 35 The objectors from No. 9 also complain of the loss of sky illumination or daylight they might obtain to their lower floors on the south side if required setbacks are observed rather than re-building where the existing building is. 36 Mr Nash says this is an adverse impact due to the reasonable expectation of neighbours that new development would comply with the DCP. It and other impacts cannot be excused on the basis there is no change from existing. 37 The purpose of adopted controls of Council and its statutes is to provide for a desired future character of a locality and desired quality of the buildings and the amenity they provide for occupants. 38 Mr Ingham continued to press his opinion that building in this precinct to comply with the controls would not achieve a desirable planning outcome. The long narrow allotments would produce stepped building forms that do not occur in the context of the Parade and the Crescent. The variety of rectangular building forms of 8-storey flats, 3-storey flats, duplex and detached houses creates no consistent context that would support the opinion that the DCP should be adhered to, provided the amenity of neighbours is not altered to a notable degree. 39 He observed that the Parade end of the proposal is actually lower than the existing building by about the height of the existing pitched roof. The top floor of the proposal at the Crescent end is higher than the existing roof by about a storey, but at that end the wall height easily complies with the DCP. 40 The demolition of the existing garage and cottage on-site will actually improve solar access for the house of the Crescent end of No. 15. 41 He says the objectives of the DCP are mainly to preserve/enhance existing environment and so long as a new development "preserves" the status quo it passes the test of assessment. 42 Mr Ingham maintains his position that the locality will not reduce in density. He says sub-zone 2 is the 2nd highest density with FSR of 0.75:1 and nearly all of the existing buildings in the sub-zone are higher density than that. The next and highest sub-zone 1 is FSR 1.5:1 and that is probably too high Mr Ingham says so the council must have decided in a "fall back" to sub-zone 2 that does not match the existing context that the DCP seeks to maintain. 43 Mr Nash noted that some properties such as No. 15 and 17 are below FSR 0.75:1 whilst others range from FSR 0.87:1 to 1.4:1. Hilder Lea is the greatest density at FSR 4.85:1 but it is the exception, and is a heritage item and no one suggests that density as appropriate for other buildings in sub-zone 2. He noted that the locality does have new buildings built or approved at Nos. 1-3 and No. 5 and there is an application in for No. 15, so the older buildings are slowly being replaced. 44 The approved plans for No. 5 were produced and Mr Ingham estimated that its FSR would be above 1:1 and is 4-storeys. Mr Nash noted it is on flatter land on the Parade frontage, and is beside "Hilder Lea" so it is not prominent as much as the subject site. Also its façade to the Parade steps further back from the street at each level and steps at the side and has a curved roof. The curved roof contains the 4th storey as attic rooms that reduce it's apparent height. The use of materials also gives the impression of masonry dominating over glass and windows in a similar way to Nos. 1-3. Mr Nash said it fitted the DCP objectives on streetscape better than the proposal. 45 Mr Nash said that proposal does impact on privacy of the balcony of the upper units of No. 9, and the other balconies in the south east corner of the proposal are only 1.5 – 2 m from the main entry path and porch and, about 3 m to windows of No. 15. The shadows on the eastern house of No. 15 effect northern windows more than a complying development would in winter. The proximity of bulk due to lack of side setback compliance facing both Nos 9 and 15 must be an adverse impact when compliance would give better amenity and access to daylight if not direct sunlight. 46 Also the landscape area is not complied with such that the expected future softening of new built forms on the streetscape and within sites, will not occur with this proposal to the extent envisaged by the DCP. 47 Mr Nash acknowledged the demolition of the existing garage and cottage at The Crescent end of the allotment would benefit The Crescent streetscape, but the proposals visual prominence and the non-compliances particularly at The Parade end of the site could not be justified by improvements at The Crescent end. 48 Another aspect is the DCP provisions on front and rear setbacks. The front setback is 6 m when there is no consistent setback of neighbours as occurs in this precinct. The rear setback minimum is 8 m and technically it should apply to the Parade frontage. Mr Nash agrees with Mr Ingham that in this location most buildings with the Crescent address are oriented to present their "front" to The Parade and the harbour. In that case 6 m should apply to the Parade frontage, but by assuming the envelope of the existing building, the proposal is 2.2 m to 4.5 m to the balconies and 3.5 m to 7 m to the walls facing The Parade. This moves the bulk of the proposal closer to, and more prominent in the streetscape, and contributes to the wall height limit exceedence. It also creates shadow impacts on northern windows of No. 15 mid winter mornings that would be much less if there is compliance. 49 Mr Ingham said the setback to the walls average 6 m and that should be acceptable since most buildings facing the Parade are offset to the street due to the spacing of the allotments around the curve of the Parade. He felt this is another example of broad provisions of the DCP intended to apply throughout Manly could be seen as inappropriate for this precinct of particular sloping topography and subdivision layout of narrow lots and the diverse sizes of existing buildings. He maintained a better outcome is achieved by not complying with the controls. 50 In coming to a conclusion on this dispute between the parties I find it very difficult to accept Mr Ingham's position that is to tantamount to saying - many of the provisions of the relevant DCP of Manly Council adopted after planning studies, public exhibition and consideration of objections – have no work to do. 51 Many of the applicable controls that Mr Ingham complains of being inappropriate, are brought about by the allotment being narrow and the applicant seeking to exceed the applicable FSR and density control. The narrow width of the allotment is a constraint to any development on the land. It seems to me on allotments with substantial constraints it is likely one cannot design for the maximum permitted size and density of development, let alone exceed the maximum. One should remember the controls are only a maximum that is permissible with consent if all other co-lateral provisions of the DCP can be met, or met to an acceptable extent. 52 Usually too, current day planning controls seek to improve the amenity and reduce the impacts of medium to high-density development compared to buildings of that type from the early 1900's. Using the existing building of early 1900's vintage almost as an "existing use right", to justify a new building of similar envelope and setbacks and floorspace that do not comply with the current controls, only emphasises the errors in the design concept of this proposal. 53 The proposal does improve the streetscape appearance of The Crescent compared to the existing buildings and improves solar access for the western cottage of No. 15 but those matters arise from compliance with controls in those locations that cannot be traded off against impacts caused in other locations by non-compliance. 54 There is a reasonable expectation of neighbours that new development on their own and on adjoining and adjacent lots should comply to a reasonable extent with current statutes and controls – that is part of the raison d'etre of the legislation. 55 It may be that a revised design can obtain council's approval of some variations to the DCP requirements. This proposal fails in regard to Issues 1A, B, (b), (d), (e), 4, 5 and 6 sufficient to justify refusal without the need to give more consideration to the other issues. 56 Therefore the Order of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except Exhibits 1, 2, 3, 4, 11, C and D. ________________________ K G Hoffman Commissioner of the Court ljr 07/05/2007 - several words left out of sentences in Para 34 and 35 and the word length changed to width in Para 51 - Paragraph(s) 34, 35 and 51 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.