Land and Environment Court New South Wales Medium Neutral Citation: Iris Property Group Pty Ltd v Hunters Hill Council [2011] NSWLEC 1231 Hearing dates: 13,16,17 and 19 May 2011 Decision date: 09 August 2011 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is dismissed. 2. The development application for 'shop top' housing at 58-60 Gladesville Road, Hunters Hill is refused. 3. The exhibits may be returned. Catchwords: APPEAL:- development application for shop top housing - variation to the height control, adequacy of front setback, car park access and solar access, effect on heritage significance of items and conservation area. Legislation Cited: State Environmental Planning Policy 65 - Design Quality of Residential Flat Buildings Hunters Hill Local Environmental Plan (Hunters Hill Village) 2009 Cases Cited: Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Iris Property Group Pty Ltd (Applicant) Hunters Hill Council (Respondent) Representation: Counsel Mr C McEwen, SC with Mr M Staunton, barrister (Applicant) Mr J Cole, solicitor (Respondent) Solicitors Pikes Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 10121 of 2011 Judgment 1This is an appeal against the deemed refusal by Hunters Hill Council (council) of a development application under the Environmental Planning and Assessment Act 1979 (EPA Act) for 'shop top' housing at 58-60 Gladesville Road, Hunters Hill (the site). The site and its locality 2The site is located in the Hunters Hill Village on the northern side of Gladesville Road near its intersection with Victoria Road. It comprises two allotments (Lot C DP 433644 and Lot 1 DP 906226), is irregular in shape with a combined area of 905sqm. The site slopes approximately two metres from the northern rear boundary to the southern Gladesville Road frontage. 3The site is developed with two single storey 1950's commercial buildings which have been altered and added to. The rear of 60 Gladesville Road contains remnants of an earlier sandstone building (Tyrone). The existing buildings have no side setbacks and are built to the street alignment on Gladesville Road. The rear of 60 Gladesville Road has an informal parking area, which is accessed via a driveway on 58 Gladesville Road. 4To the west of the site are two single storey timber cottages known as Eden (1 Ryde Road) and Bega (3 Ryde Road). Other developments to the west along Ryde Road are one and two storey detached dwellings. Figtree Park is located near the site on the western side of Ryde Road. Development to the west along Gladesville Road is predominantly one and two storey commercial buildings. 5Adjoining the site to the east is a single storey sandstone cottage known as Hillrest (62 Gladesville Road). This adjoins the car park of the Hunters Hill Hotel, which is located on the corner of Gladesville Road and Joubert Street. There is an approval for the Hunters Hill Hotel to develop the car park for a four storey mixed use development. The opposite side of Gladesville Road is predominantly two storey commercial development. To the north, the site adjoins a two storey dwelling (10A The Avenue). 6There is no significant vegetation on the site but a large oak tree ( Quercus robur ) is located near the common boundary of 10A The Avenue Road. A fig tree ( Ficus benjimina ) and a honey myrtle tree are located near the common boundary of 1 Ryde Road. Planning controls 7The site is zoned B4 Mixed Use under Hunters Hill Local Environmental Plan (Hunters Hill Village) 2009 (Village LEP) . The proposal is permissible with consent. The objectives of the B4 zone are: · To provide a mixture of compatible land uses. · To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. · To create a safe and attractive environment 8The site is within the Hunters Hill Village Heritage Conservation Area and adjoins two heritage items: Eden and Hillrest. Bega, the Hunters Hill Hotel and St Kevins (50 Gladesville Road) are also listed as heritage items under the Village LEP and are within the vicinity of the site. Clause 5.10(4) of the Village LEP requires that the consent authority must consider the effect of the development on the heritage significance of a heritage item or conservation area. Clause 5.10(5) provides that a Heritage Impact Statement may be required to assess the extent to which the development may effect the heritage significance. 9The Village LEP relevantly includes a height limit of 11m (cl 4.3(2)) and a floor space ratio (FSR) of 2:1 (cl 4.4A(1)(b)). The proposal has an FSR of 1.75:1 which is below the maximum permissible FSR under cl 4.4A(1)(b). Although initially disputed, the applicant has conceded that the proposal exceeds the height limit in cl 4.3(2) and has submitted a request under cl 4.6(3) to justify the contravention of the standard. Clause 4.6 relevantly provides: (1) The objectives of this clause are: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, and (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and ...... 10Development Control Plan No.27 - Hunters Hill Village (DCP 27) applies to the site. The site is within the Village Core Precinct. The objectives for the Village core are to ensure that any development: · emphasises and reinforces the core precinct as the primary focus for the village; · respects the recognised heritage values and positive architectural character of the village; · respects the scale and urban form of existing buildings; · maintains and reinforces the existing subdivision pattern wherever possible; · encourages and provides a mix of residential, commercial and retail uses; · provides for additional landscaping to the street; · improves solar access to the ground floor level during winter, whilst providing shade and shelter during summer; · ensures a high level of amenity by encouraging active uses at street level and through public domain improvements, and · includes residential apartments at upper levels where approp riate. 11DCP 27 includes development controls for FSR, maximum heights, setbacks, architectural form and character, landscaping, heritage and parking. Other than FSR, the parties held different opinions as to whether these controls and the objectives of DCP 27 are met. 12Development Control Plan No 21- Commercial Development (DCP 21) also applies to the development. It relevantly includes controls for density, minimum ground floor retail, landscape area, car parking and solar access. The parties disagree whether these controls are met. 13State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the development. Clause 30 of SEPP 65 requires a consideration of the design quality principles. The Residential Flat Design Code (RFDC) is also a relevant consideration under cl 30 of SEPP 65. The proposal 14The application has been amended by leave of the Court. The amended development application (Exhibit Q) seeks consent for a four storey 'shop top' housing development above a basement car park. The proposal includes 17 units (4 x 1 bedroom and 13 x 2 bedroom), ground level retail and basement car parking spaces (17 residential and 2 retail) which are accessed off Gladesville Road. Visitor parking for both the retail and residential (nine spaces) is to be accommodated in the Hunters Hill Hotel car park. The application also includes strata subdivision. The evidence 15The Court heard evidence from a number of objectors, including representatives of the Hunters Hill Trust. Their main concerns were that the proposal was not consistent with the character of the Village, which is established by the number of heritage items. They considered the proposal would impact on the heritage significance of the adjoining cottages. They stated that the Village LEP and DCP 27 were a result of extensive consultation and that the proposal was not what is sought by the controls, particularly as it is four storeys when a maximum of three is envisaged. They also raised concerns about the traffic that would be generated by the development and the adequacy of the parking. 16The Court heard expert evidence from: For the council Mr C McLaren, traffic Mr G Patch, heritage Mr P Sutton, arborist Mr J Chetham, landscape Mr J Vescio, planning For the applicant Mr R Varga, traffic Mr S Davies, heritage Mr K Hill, arborist Mr P Scrivener, landscape Mr D Furlong, planning Height 17The key issue between the parties is whether the height and number of storeys is consistent with the desired future character sought by the planning controls. Clause 4.3(2) of the Village LEP permits a maximum height of 11m above 'existing ground level'. Mr McEwen, for the applicant, conceded that, technically, the proposal does not comply with the control but he submits that the variation meets the requirements in cl 4.6 of the Village LEP. Mr McEwen also submits that height in the DCP is measured from 'natural ground' and that the proposal complies. 18Mr Furlong estimates that about 40% of the level 4 is above the 11m height limit in the Village LEP by a maximum of 500mm, whereas Mr Vescio estimates it is about 50%. 19Mr Furlong prepared a statement required by cl 4.6 (3) in justification of the variation. In summary, he states that compliance with the standard is unreasonable and unnecessary in the circumstances of the case as the non compliance results from excavation of part of the site. The building will be within the height limit 'when related to the land levels at the extremities of the site and of the surrounding properties....it will appear as a compliant building'. There are also sufficient planning grounds to justify the variation and the objectives of the height standard are met as the additional 500mm will not result in additional overshadowing, loss of privacy or adverse visual impact and the building will be of a density and scale that will 'not appear out of character with the anticipated future character of the Village as anticipated by the controls. 20Mr Furlong considered that the Village LEP is the primary instrument and its maximum height control takes precedence over the number of storeys and ceiling height controls in DCP 27. He also gave considerable weight to the approval of extensions to the Hunters Hill Hotel, which is four storeys and exceeds the height limit by over a metre. He considered this demonstrates the future form of development within the Village envisaged by the planning controls. Mr Furlong considered the area to be one undergoing transition. 21In Mr Vescio's opinion, the Village LEP and DCP 27 must be considered together. The height control is a maximum measured from existing ground level. This enables a degree of flexibility to accommodate three storeys, roof, plant etc and not to squeeze in four storeys. In his opinion, the additional storey and height above the control would be visible and would impact on the character of the area. He considered that a large part of the top floor exceeded the height control and there was no justification for the variation. 22Mr Vescio considered that the existing heritage buildings in the Village will not be redeveloped and therefore the predominant scale of one to two storeys will remain. The planning controls seek to enable new developments with greater density and height to be inserted into this existing character but in a manner that is respectful and maintains the character. The site is very constrained as it adjoins two single storey heritage items and residential to the rear. He did not consider the approved Hunters Hill Hotel extensions to be what is sought by the planning controls. Findings 23The objectives of the height control in cl 4.3(1) of the Village LEP are: (a) to minimise any overshadowing and loss of privacy to neighbouring properties and to reduce the visual impact of any development, (b) to maximise solar access and amenity of public areas, (c) to encourage well designed, accessible and viable residential, retail and commercial floor space of a scale and density appropriate to the urban environment. 24Clause 4.3(2) permits a maximum building height of 11m. Building height and ground level (existing) are defined in the Village LEP as: building height (or height of building ) means the vertical distance between ground level (existing) at any point to the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like. Ground level (existing) means the existing level of a site at any one point. 25The proposal exceeds the maximum building height in the cl 4.3 of the Village LEP. Therefore, consent for the development must not be granted unless the matters in cl 4.6(4)(i) are satisfied. 26Mr Furlong considers that compliance with the standard is unreasonable and unnecessary as it results from changes to ground level that have occurred on the site. However, the height control is a maximum. Whether a proposal is above or below the standard it must meet the objectives of the control. The objectives of cl 4.3 include to encourage buildings of a scale and density appropriate to the urban environment. To understand whether the scale is appropriate requires an understanding of the height of the proposal relative to other buildings that will comprise the desired future character of the Village, including the adjoining heritage items. 27The experts disagree on the desired future character anticipated under the planning controls. This disagreement centres on their difference of opinion about the height control in DCP 27 and the approved extension to the Hunters Hill Hotel. Mr Furlong states that the height limit is set by the Village LEP (but that natural ground should be used) and therefore the anticipated character envisages four storeys. In his opinion, the desired future character of the Village is demonstrated by the Hunters Hill Hotel and the proposal is consistent with this character. Mr Vescio places weight on the height control in DCP 27 which has work to do as well as the Village LEP. This envisages three storey buildings with the top floor setback and minimum floor to ceiling heights. In his opinion, the desired future character seeks to respect the scale of existing building in the Village, some of which are heritage items and are unlikely to be redeveloped. 28I accept Mr Vescio's evidence. DCP 27 explains the maximum height control as follows: In order to respect the scale and urban form of the existing buildings, and to assist in defining and enhancing the desired character of the Village building height limitations have been set to a maximum of 11m measured from the natural ground level (see figs 1 and 2). This should enable buildings of up to 3 levels to be constructed at the Gladesville Road street frontage. Buildings proposed for development are to be designed to express that form. Note that current controls for minimum floor to ceiling heights of 3.6m (min) for the ground floor and 2.7m (min) for the first floor will still apply. The top floor will have a 2.4m (min) floor to ceiling height however 2.7m is preferred. (see figs 1 to 4). 29There is inconsistency in how building height is measured in the Village LEP (existing ground) and the DCP 27 (natural ground) but the Village LEP establishes the maximum height limit. I acknowledge that the DCP 27 could be clearer, however, consistent with the decision in Zhang v Canterbury City Council (2001) 115 LGERA 373, it must be considered as a 'fundamental element' or a 'focal point' in the decision making process. DCP 27 provides more detail for the maximum height control in the Village LEP. When read together, the Village LEP and DCP clearly envisage buildings up to three storeys on Gladesville Road. 30The proposed development does not comply with the control and achieves four storeys by reducing the floor to ceiling height of the commercial floor and excavating to provide residential units that are partly below ground level. While levels 3 and 4 are set back, the building will appear as a four storey building from Gladesville Road. The additional 500mm will be visible and will add to the overall height of the building. The proposal is located amongst a group of three single storey cottages that are heritage listed. It therefore does not 'respect the scale and urban form of existing buildings and is not of a 'scale .... appropriate to the urban environment'. 31The 11m height control provides sufficient flexibility to accommodate floors with the specified minimum floor to ceiling heights and respond to discrepancies in ground level. It is a maximum height which includes roofs, lift overruns, plant etc. Four storeys can only be achieved within 11m if the floor to ceiling heights are reduced and part of a floor is excavated into the site. To achieve four floors above natural ground the height control will be exceeded. 32Extensions to the Hunters Hill Hotel were approved under existing use rights enjoyed by the hotel prior to the gazettal of the Village LEP and the adoption of DCP 27. The subsequent amendments, approved under the current controls, did not deal with matters of relevance to this application. The Hunters Hill Hotel does not exemplify the form of building sought by the planning controls. It will be the dominant building in the Village located on prominent corner site. Other buildings in the Village should be subservient to the Hunters Hill Hotel and mitigate between its height and the height of existing buildings, particularly the single storey heritage cottages. 33For these reasons, I am not satisfied that the applicant has adequately demonstrated that compliance with the height standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(4)(a)(i)). The proposed development is not in the public interest (cl 4.6(4)(a)(ii)) as it is not consistent with the objectives of the height standard to encourage buildings of a scale and density appropriate to the urban environment and it is not consistent with the objective of the B4 Zone to create an attractive environment. For these reasons the application must fail. 34For completeness, I will briefly discuss the other main issues in dispute between the parties. Front setback 35The key disagreement between the planning, heritage and landscape experts is whether the ground and first floor should be set back from the street frontage. In Mr Vescio's opinion, DCP 27 requires a three metre setback for larger sites on the northern side of Gladesville Road because these sites can achieve a greater density of development and the increased setback will facilitate improvements to the public domain with landscaping and areas for outdoor eating. 36Mr Patch held a similar opinion. He considered that an increased setback would assist in mitigating the increased height and scale of the proposal in comparison to the adjoining cottages. He accepted that the proposal would improve views to Hillrest compared to the exiting development. However, he considered that an increased setback would reinstate views to Hillrest which would have previously existed when Tyrone occupied the site. 37Mr Furlong did not agree that DCP 27 requires a setback. In his opinion, the existing buildings on the site are built to the boundary and no benefit would be achieved by providing an increased setback beyond that proposed. He notes that the proposal is setback where it adjoins Hillrest and Eden in a similar manner to the approved extensions to the Hunters Hill Hotel and that this is an appropriate response to the context of the site. The upper levels of the proposal are also setback 38Mr Davies held a similar opinion. He notes that there will be an inevitable tension between new development and the heritage buildings within the Village but that this is what is envisaged by the planning controls. He accepted that an increased set back would reveal more of Hillrest but considered that this would provide little benefit beyond what has already been achieved by the proposal. 39Mr Scrivener and Mr Chetham agree that street trees are an important part of the urban design of the Village and that Brush Box is the preferred species as it is already planted in the Village. They agree that there is sufficient space for the proposed trees. However, Mr Chetham considers that a three metre setback is preferable as it would provide space for the tree canopy without the requirement for pruning or indenting the awning. Findings 40The parties disagree on whether DCP 27 requires a set back from the Gladesville Road frontage. Mr Cole submits that DCP 27 controls for setbacks include: For sites that achieve a minimum site area of 900m 2 , a 3 metre setback from the street boundary for first and second floor is required. This will provide opportunities for outdoor dining away from road edge, a more comfortable and spacious area and enable more landscaping to be provided, as well as the opportunity for improved solar access. 41Further, Mr Cole submits that Figure 3 of DCP 27 illustrates where no setback is required. It relates to typical smaller sites north of Gladesville Road, which have buildings already developed to the property boundary. 42Mr McEwen submits that the controls for front setbacks in DCP 27 are unclear. It cannot be concluded that 'first and second floor' refers to ground level and the floor above. He submits that Figure 3 is not referred to in the controls, but even if it is relevant, it applies to only three existing buildings, including those on the site, which are built to the street alignment. He submits that the evidence of Mr Davies, Mr Furlong and Mr Scrivener should be preferred. 43I acknowledge that the wording of DCP 27 could be clearer but reading the setback clause together with Figure 3 and the objectives, I accept that the intent of the control is for larger sites to be setback at level 1 and level 2, being the ground and first floors. If the individual allotments that comprise the site were developed separately there would be no requirement for a front setback as the existing buildings are developed to the front boundary. However, as an amalgamated larger site, the development is required to be set back. 44I acknowledge that the partial setback of the proposal at ground and first floor as well as the setback of the upper levels will open up views of Hillrest and Eden which currently do not exist and will assist in reducing the impact of the increased height of the proposal. However, I accept the evidence of Mr Vescio, Mr Patch and Mr Chetham that the setback of the two lowest levels will open up views and better respect the setting of Hillrest. It will provide a continuity of building alignment from the south west corner of the Hunters Hill Hotel to Eden and Bega thereby reinforcing the importance of the group of heritage items and better meeting the objective for the Village in DCP 27 to respect (s) the recognised heritage values and positive architectural character of the village. The setback will also provide opportunities for outdoor dining away from road edge, a more comfortable and spacious area and enable more landscaping to be provided. Heritage 45Mr Patch and Mr Davies held different opinions as to whether the proposal would adversely impact on the heritage significance of the adjoining items and the conservation area. Mr Parch considered that the height together with the front setback would 'overwhelm' the heritage items. Mr Davies, however, considered that the height and setbacks are anticipated by the planning controls and that the front and side setbacks, materials and design reduce the impact on the adjoining items. 46Mr Patch also raised concerns about the Heritage Impact Statement (HIS) which was prepared after the design of the development. He considered that the HIS did not adequately assess the significance and constraints of the site, in particular the remnants of the cottage Tyrone which remain on the site. Mr Patch also considered that the HIS's recommendation regarding the use of sandstone had not been adequately implemented in t he proposal and raised concerns about the use of materials and the lack of expression of the subdivision pattern in the fa ć ade treatment. Mr Patch also raised concerns about the intrusions into the two metre setback of the proposal from Bega. 47Mr Davies a cknowledged the concerns about the staging of the HIS but considered that the significance of the items and the heritage constraints of the site had been adequately addressed. In his opinion, the use of materials was acceptable but he agreed that, if required, the materials and fa ç ade treatment could be changed to differentiate the subdivision pattern and to use sandstone. Findings 48The site is located within a group of three single storey cottages which are heritage items. The site is therefore constrained and any development must respond carefully to the scale, form and setting of these buildings. I acknowledge that the partial front setback and the setback of the upper levels have partially mitigated the impact of the development but not to the extent that the proposal would not have an adverse impact on the significance of these cottages, particularly Hillrest. A building of similar scale to the extensions to Hunters Hill Hotel would dominate Hillrest. For the reasons, which I have discussed in the previous paragraphs, I do not accept that the proposal is what is anticipated for the Village under the planning controls, particularly on this site that is significantly constrained by its location within in a group of heritage items. 49I accept Mr Patch's evidence that the proposed development will have an adverse effect of the on the heritage significance of the adjoining heritage items and the conservation area and consent can therefore not be granted under cl 5.10(4) of the Village LEP. Density 50DCP 21 includes the requirement that the maximum residential density shall be one dwelling per 75sqm of site area. In applying this control, the site could achieve 12 residential units whereas 17 are proposed. 51Mr McEwen submits that the density control in DCP 27 applies to all commercial development, including 'shop top' housing in the business zones. He submits that DCP 27 was adopted after DCP 21 and provides specific controls for the Hunters Hill Village which do not include the maximum residential density control. DCP 27 also includes a FSR of 2:1 which is considerably larger than the FSR of 0.6:1 in DCP 21. 52Mr Cole submits that the density control is relevant and that the FSR and density control could be achieved if larger units were provided or if greater commercial floor space were provided, particularly below ground level. He submits that the purpose of the control is to provide an appropriate mix of residential and commercial development. Findings 53The density control in DCP 21 is a relevant consideration but needs to be understood in the context of the other controls which apply to the site. There is a degree of conflict between the maximum FSR and the density control. Non compliance with the density control would of itself not warrant refusal of the application. However, a development with less units would more easily achieve the height, number of storeys, setback and parking controls consistent with the desired future character for the area. Parking 54The key issue between the traffic experts is whether the location of the driveway access to the site is safe or whether access to the site should be from the Hunters Hill Hotel car park via an easement through an underground link at the rear of Hillrest. The owner of Hillrest has indicated that she would not agree to an easement. 55The proposal provides basement parking for 19 cars, which meets the requirements of DCP 21 for residential and commercial tenant car parking. However, the 9 visitor spaces required under DCP 21 are to be provided in the car park of the approved extensions to the Hunters Hill Hotel that provides parking in excess of its requirements. The parties agree that this is acceptable subject to an ongoing legal agreement. 56Mr McLaren and Mr Varga agree on the sight line to the west from the driveway is 41m but due to their different assumptions (including approach speed and reaction time) they disagree on whether this provides an adequate stopping distance for cars, trucks and buses. They also disagree on whether the site line provides an adequate gap for cars to exit the site. Findings 57While I accept that car access to the site is not ideal, I do not accept that the safety concerns raised by Mr McLaren would prevent access to the site or warrant refusal of the application for this reason. 58The site already has car access and parking has been provided at the rear of 60 Gladesville Road, albeit on a limited basis. While access via an easement over Hillrest would be preferable, Mr McEwen submits that without the agreement of the owner, an easement under s40 of the EPA Act could only be obtained if it can be demonstrated that the site cannot be developed, which is not the case. 59In the absence of an easement Mr McLaren considers that the number of car spaces and consequently the number of traffic movements should be reduced. Given the other issues discussed above, a development with fewer units and less demand for car parking would be more appropriate. Solar access 60The experts agree that with if the slab on level 3 were changed to a pergola, the internal living areas would meet the 'rule of thumb' under the RFDC that 70% of units achieve two hours of solar access in midwinter. Mr Furlong considers that the rear private open space would also meet the requirement if it were measured at 'table level'. Mr Vescio considers that there is neither quantitative nor qualitative compliance. In particular, the privacy screens and the planting will impact on the amenity of the sunken courtyards. Findings 61The rear open space faces north, however, less than 70% achieve two hours sunlight in midwinter if measured at ground, which is the normal convention rather than at 'table top', as suggested by Mr Furlong. 62The three courtyard apartments could achieve more than two hours sunlight if they were not located below natural (existing) ground level. These apartments are at the same level as the commercial floor and are below natural ground level to achieve four residential levels and comply with the 11m height control. A three storey building would enable the courtyards to be closer to natural (existing) ground, comply with the height control and optimise solar access. Orders 1. The appeal is dismissed. 2. The a development application for 'shop top' housing at 58-60 Gladesville Road, Hunters Hill is refused. 3. The exhibits may be returned. Annelise Tuor Commissioner of the Court Amendments 05 October 2011 - typographical errors 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. Decision last updated: 05 October 2011