Land and Environment Court New South Wales Medium Neutral Citation: All in Project Management Pty Ltd v Waverley Council [2019] NSWLEC 1374 Hearing dates: 3 and 4 June 2019 Date of orders: 13 August 2019 Decision date: 13 August 2019 Jurisdiction: Class 1 Before: Bindon AC Decision: The Court orders that: (1) The appeal is dismissed. (2) The exhibits are returned except for Exhibits 1 and A. Catchwords: DEVELOPMENT APPLICATION – rooftop terrace – car stackers – vehicle manoeuvrability – onsite pedestrian safety – site suitability – partial consent Legislation Cited: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 2012 Texts Cited: Waverley Development Control Plan 2012 Category: Principal judgment Parties: All in Project Management Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: A Pickles (Applicant) Solicitors: Conomos Legal (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2018/143805 Judgment Introduction 1. COMMISSIONER: This is an appeal against the deemed refusal by Waverley Council (Council) of Development Application No DA428/2018 (the DA) for land at 16 Military Road North Bondi (site) for demolition of a laundry building, provision of additional parking, including the installation of mechanical car stackers, and associated landscaping; and alterations to an existing residential flat building, including the conversion of a roof area into a communal roof terrace. The proposal 1. The DA as originally submitted seeks consent for: 1. alterations to an existing six (6) storey residential flat building to provide new entry at ground level with lift access extended down from Level 1 to the new entry level; conversion of a portion of an existing roof area measuring approximately 101m2 for communal roof terrace, with toilet and associated landscaping; and 2. demolition of a laundry building and replacement of five (5) existing at grade parking spaces with three car stackers, each three tiers high, accommodating a total of fifteen (15) vehicles, and associated landscaping; and 3. construction of two (2) additional parking spaces and manoeuvring area within a portion of the northern communal open space area, relocation of clothes lines and landscaping of the remaining communal open space. 1. At the hearing leave was sought to rely on amended plans which pick up changes in details as developed in the expert planners' joint conference. Leave was granted. The application before the Court makes no changes to elements (b) and (c) described in paragraph [2] above but amends the works associated with the roof terrace to reconfigure the layout, reduce the area to 80m2, extend lift access to the roof and redesign the toilet to make it accessible. 2. Put simply, the proposal is not suitable for this site. In reaching this conclusion, I have taken into consideration the written evidence of the traffic experts Mr Cameron Pike and Mr Oleg Sannifiov (Ex 4), the swept path plans prepared by TEF consulting during the course of the hearing (Ex R), the acoustic evidence by Acoustic Consulting Engineers Pty Ltd (Exs J and P) and the written and oral evidence of the planning experts Mr Lee Kosnetter and Mr Scott Lockrey. 3. I have also had regard to the oral submissions of objectors made at the Court view, my own observations of the site and its environs taken at the Court view, the public written submissions (in the Council 'Bundle' Ex 2) and the parties' submissions in Court. Contentions 1. After certain matters were resolved through the work of joint experts (and leave granted by the Court to rely on amended plans), the Council's view on why the application should be refused can be summarised as follows: 1. The proposed structures associated with the roof terrace, including the new toilet and balustrading exceed the 12.5m height of buildings development standard, and the written request to vary the height standard pursuant to cl 4.6 of Waverley Local Environmental Plan 2012 (WLEP 2012) is not well founded. 2. The proposed development should be refused as the roof terrace introduces unreasonable visual and acoustic privacy impacts to surrounding properties. 3. The roof terrace is inconsistent with the Waverley Development Control Plan 2012 (WDCP 2012) Pt C2 – s 2.14 Communal Open Space controls and Pt C2 –s 2.18 Visual Privacy and Security. 4. The roof terrace is inconsistent with the North Bondi Special Character Area pursuant to Pt C2 - s 2.1.2 of WDCP 2012, and will result in unreasonable amenity impacts on adjacent buildings. 5. The car stackers unreasonably impact on the safety of pedestrians within the site and disrupt the safe and easy access to existing buildings, and are inconsistent with some objectives and controls in WDCP 2012, as set out in Contention 4 of the Statement of Facts and Contentions in Exhibit C. The relevant parts and sections of WDCP 12 referred to are Pt B8 – s 8.3 Pedestrian /Bicycle Circulation and Safety, Pt C2 – s 2.11 Vehicular Access and Parking and Pt C2 – s 2.12 Pedestrian Access and Entry. 6. The car stackers will have an unacceptable impact on residential amenity, including noise, privacy and visual impacts. The site and setting 1. The site is referred to as 16 Military Road and legally described as Strata Plan 123. It is an irregular shaped allotment with a total site area of 1659m2, and a 15.24m wide frontage to Military Road. The site is occupied by two separate residential flat buildings: a two storey brick building containing four units (the Front Building) located towards the eastern end of the site closest to the street; and a six storey brick building (the Rear Building) with generally flat roof behind a 1160mm high brick parapet. Stair access is available to the roof of the Rear Building and an enclosed lift motor room of approximately 4m in height is centrally located on the roof. The Rear Building contains a total of 25 units. Located between the two flat buildings is a single storey laundry building. A grassed area containing clothes lines is located in a northern extension of the site, located to the rear of 20 and 22 Military Road. 2. Immediately to the south of the laundry building is a hard stand area used for the informal parking of up to 5 vehicles, parked at an angle due to the limited space available. A concrete driveway services the informal parking area and the ground level garages that form the lowest level of the Rear Building. There are 11 usable garages under the Rear Building and one 'garage' (space 12) that cannot be accessed by a car due to the narrowness of the driveway servicing that space. 3. The driveway runs from Military Road adjacent to the southern side of the Front Building and then continues in a westerly direction and wrapping around the Rear Building immediately adjacent to the southern, western and northern boundaries of the site. A 34m long portion of the driveway closest to the street is shared with the adjoining residential flat building to the south, at 14 Military Road, with reciprocal rights of way (each 2.285mwide) across the two properties. At its narrowest point the separation between the Front Building and the adjacent apartment building at 14 Military Road is less than 5.5m. At the widest point closest to the street this increases to approximately 8m. The shared driveway also provides pedestrian access to the main entrances located at the sides of the Rear Building, the Front Building and the adjoining apartment building at 14 Military Road. Submissions from local residents note that the shared driveway is also used by residents of the property adjoining to the rear at 15 Wallis Parade, for pedestrian access to and from Military Road. Much of the driveway, therefore, by necessity operates as a shared pedestrian and vehicular access way. Details of the improvements on the site and adjoining properties, the grassed area, concrete driveways and rights of way are set out in the Site Survey at Exhibit C. 4. The site is on the western side of Military Road, approximately midway between Blair Street and Wallis Parade, and is surrounded by residential flat buildings of between two and four storeys in height. A three building apartment complex know as 15 Wallis Parade adjoins the western and southern boundaries adjacent to the Rear Building. Two of the adjoining buildings at 15 Wallis Parade are three storeys in height with the western most building three storeys over an open car parking level. The ground level at 15 Wallis Parade is generally between 1.3m and 3.5m lower than the ground level of the site near the common boundary. 5. At 18 Military Road, the property to the north of the Front Building, a three storey residential flat building is under construction. To the north of the Rear Building at 171 Blair Street is an L shaped residential flat building situated approximately 7m from the boundary. Opposite the site, on the eastern side of Military Road, is Bondi Golf Course and Bondi Beach is approximately 500m to the south along Military Road. 6. The locality is characterised by the predominance of two storey older style (1930s – 1940s) brick and tile residential flat buildings and three storey 1960 - 1970s flat buildings, some with ground level parking beneath. Some more recent apartment buildings of generally three storeys are located along Military Road and the occasional single or double storey semi-detached dwellings on the side streets off Military Road. There is minimal street boundary setbacks and landscaping along the street frontages to Military Road, with a scattering of street trees. Relatively small areas of landscaped open spaces are found located at the rear of the apartment buildings providing some building separation and visual amenity for residents. There is generally unrestricted street parking on Military Road which also provides regular bus services. The site inspection 1. The hearing commenced with a site inspection. It was possible to view the exteriors of both the Front and Rear Buildings, and external common areas on the site from the perimeter driveways and by walking around the accessible sides of both buildings. The Court was also able to access the rooftop, the first level (rear) of the apartment building under construction at 18 Military Road that overlooks the area on which the car stackers are proposed to be located, and the interior of Unit 8 on the lowest residential level of the Rear Building, also overlooking the car stackers. Lay submissions 1. A list of objectors was provided as part of Exhibit 2, indicating that there were 38 written submissions received after notification of the DA. Oral submissions, all in the form of objections, were taken at the site inspection. A total of five people gave oral submissions, one each from, or representing residents or owners in the adjoining residential properties at 15 Wallis Parade, 14 Military Road and 18 Military Road, and one each from the Front Building and Rear Building. Details of the speakers and their submissions were tendered with the Court as Exhibits 5 and 6. 2. Issues of concern as expressed in the written and oral submissions may be summarised as: 1. Noise and anti-social behaviour associated with use of the proposed rooftop terrace, and the difficulty for the body corporate to manage these. 2. Potential privacy impacts on adjoining residences overlooked from the rooftop terrace. 3. Non-compliance with Council guidelines for rooftop terraces and breach of the height limit by the additional structures on the roof, noting the six storey building already substantially exceeds that limit. 4. Noise associated with the operation of the car stackers, especially at night-time, and concerns about resultant loss of sleep. 5. Visual impact of the car stackers, especially when in the raised position, and impact of headlight glare on the amenity of the site and immediate adjoining properties. 6. Noise from vehicles accessing the additional external parking spaces at the rear of 20 Military Road and 171 Blair Street. 7. Additional vehicular congestion with the doubling of car numbers, and congestion associated with vehicles accessing the car stackers at the very narrow and busy part of the driveway. 8. Failure to encourage the use of public transport by providing additional parking on site. 9. Potential for additional vehicular and pedestrian conflict and compromised safety of pedestrians arising from additional car movements, noting the location of existing building entrances off the common driveway. 10. Flooding and deficiencies in the existing and proposed stormwater drainage system. 11. The proximity of utility lines (sewer, electricity, gas, communications and stormwater) along the northern boundary adjacent to 18 Military Road in the vicinity of the car stacker pit, and the impact this may have on the screen landscaping proposed along this boundary. 12. Construction impacts including access to properties, noise, dust, and potential damage to properties arising from excavation of the car stacker pit. Relevant planning controls and Jurisdictional matters Environmental Planning and Assessment Act 1979 1. The following sections of the Environmental Planning and Assessment Act 1979 (EPA Act) apply to consideration of the DA. 1.3 Objects of Act The objects of this Act are as follows: (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, (c) to promote the orderly and economic use and development of land, (d) to promote the delivery and maintenance of affordable housing, (e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats, (f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), (g) to promote good design and amenity of the built environment, (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants, (i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State, (j) to provide increased opportunity for community participation in environmental planning and assessment. 4.15 Evaluation (1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. … (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria. 4.16 Determination (1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. … (4) Total or partial consent A development consent may be granted: (a) for the development for which the consent is sought, or (b) for that development, except for a specified part or aspect of that development, or (c) for a specified part or aspect of that development. (5) The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development. Waverly Local Environmental Plan 2012 1. The site is located within Zone R3 – Medium Density Residential in WLEP 2012. The proposed development is ancillary to the residential flat building use which is permissible with consent in the zone. There is a requirement for consent authorities to have regard to zone objectives in the determination of development applications. 2. The site is not a heritage item and is not within a conservation area, nor is it classified as being flood prone land. 3. The WLEP 2012 provides for development standards for building height and floor space ratio, and for the variation of those standards, as follows: 1. Clause 4.3 which relates to the height of buildings: in this case a maximum height of 12.5m applies to the site. The existing height of the Rear Building, to the top of the lift motor room, is 20.11m in height and therefore is significantly higher than the WLEP 2012 height limit. The proposed roof terrace works, including the additional floor space used for a toilet, also do not comply, but are slightly lower than the existing height of the lift motor room. 2. Clause 4.4 which relates to floor space ratio (FSR): in this case a maximum FSR of 0.9:1 applies to the site. The existing development on the site has an FSR of 1.28:1. After completion of the roof terrace works and demolition of the laundry building there will be a net decrease in FSR to approximately 1.26:1. 3. Clause 4.6 allows for the submission of a written request to vary a development standard under certain circumstances. The relevant provisions of cl 4.6 are found at subcll (3) and (4), as follows: 4.6 Exceptions to development standards ... (3) Development 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) Development 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, … 1. A request to vary the height standard in cl 4.3 and the FSR standard in cl 4.4, pursuant to cl 4.6 of WLEP 2012 were submitted with the original DA. 2. Clause 5.10(4) which relates to heritage conservation requires that as the site is in the vicinity of the C69 William Reserve, North Bondi Golf Course, an assessment of the impact on the significance of the landscape conservation area is required. The Statement of Environmental Effects submitted with the original DA (Ex D) included an assessment of the impact on that heritage landscape and this is not in contention. 3. Clause 6.1 relates to acid sulphate soils. The Statement of Environmental Effects at Exhibit D notes in Table 2 at page 20 that the site is classified as "Acid sulphate soils 5". There was no evidence presented that an acid sulphate soils management plan is required and this is not in contention. 4. Clause 6.2 relates to earthworks. The Statement of Environmental Effects at Exhibit D acknowledges that consent is required for the ancillary earthworks associated with excavation of the pit for the car stackers. Further earthworks are also required to create the additional external car spaces and modify the communal open space areas in the vicinity of those spaces. Clause 6.2(3) sets out the matters that must be considered by the consent authority with respect to earthworks, as follows: (3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters: (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. 1. A "Report on Geotechnical Site Investigation" by Crozier dated May 2017 and tendered as Exhibit H provides evidence of the nature of the material to be excavated, and recommendations to mitigate potential impacts associated with the excavation on structures located on the site and neighbouring properties, and on services. This is not a matter of contention. Waverly Development Control Plan 2012 1. There is a series of planning provisions in the Waverley Development Control Plan (Amendment No. 5) – (WDCP 2012) - that are relevant matters for consideration under s 4.15(1)(a)(iii) of the EPA Act, and in particular those referred in paragraph 4 above, and discussed in detail below. Key Issues Clause 4.6 requests arising from non-compliances with building height and FSR standards 1. The proposed development raises issues of non-compliance with the height of buildings and FSR development standards. Under the provisions of cl 4.6 of WLEP 2012 consent cannot be granted unless the nominated matters are considered and the Court as the consent authority is satisfied as to those matters. It is therefore a fundamental jurisdictional question that must be determined in the positive before proceeding to any further assessment of the merits of the application. 2. The component of the proposed development that involves the introduction of a rooftop terrace raises an issue of compliance with the existing height standard. The existing Rear Building has a height of 20.11m measured to the top of the lift motor room, is substantially higher than the 12.5m development standard for maximum building height. It is also substantially taller (by at least 2.5 storeys) than the adjoining residential flat buildings, and others in the vicinity. 3. The proposed roof top component of the development includes additional structures that will not increase the existing maximum building height (being the top of the existing plant room at RL 49.10), although they will rise above the existing roof top level (at RL 45.01) such that: 1. the proposed toilet structure will increase the bulk of the plant room to which it is attached by 7.5m2, albeit at a height 1.29m lower than the roof of the plant room; 2. the floating timber deck will sit 250mm above the existing roof level, with a 1100mm glass balustrade on top; and 3. 600mm high perimeter planter boxes will sit on the outside of the timber deck and glass balustrade. Shrubs to be planted in the planter boxes are unlikely to exceed a height of 1.0m at maturity. 1. The existing brick parapet is approximately 1160mm above the roof level, the proposed structures are centrally located on the roof, and the Rear Building is substantially taller than other buildings in the vicinity. Both the planning experts agree that the proposed rooftop structures will be effectively screened from view. 2. The town planners in their Joint Report at Exhibit 3 agree that the roof top component of the development, as provided for in the amended plans, "provides for an appropriate planning outcome in terms of height, bulk and scale and view impacts". They also agree that "the built form's overall height and cl 4.6 Exception to Development Standards submission provides for an appropriate planning outcome relative to height". 3. The cl 4.6 request for variation of the building height development standard was tendered as Exhibit F. In determining whether the cl 4.6 request at Exhibit F is well founded I have taken into account the requirements of cll 4.6(3)(a) and (b) in the WLEP 2012 that the applicant's written request (Ex F) has justified 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. 1. I have also considered whether the justification in the applicant's written request has adequately addressed those matters, pursuant to cl 4.6 (4)(a)(i), and whether "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" pursuant to cl 4.6(4)(a)(ii). Clause 4.6 request – height of buildings 1. Having considered those relevant matters I have concluded that the applicant's written request at Exhibit F has sufficiently demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case, and that there are sufficient environmental planning grounds to justify the contravention. I also find that the written request has adequately addressed the relevant matters. 2. Turning to the public interest test in cl 4.6(4)(a)(ii) I have considered the proposed development's consistency with the objectives of the height standard and with the objectives for development in the R3 Medium Density Residential Zone. 3. The objectives of the height development standard at cl 4.3(1) of WLEP 2012 are: 1.3 Height of buildings (1) The objectives of this clause are as follows: (a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views, (b) to increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth, (c) to accommodate taller buildings on land in Zone B3 Commercial Core of the Bondi Junction Centre and provide an appropriate transition in building heights surrounding that land, (d) to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively complement and contribute to the physical definition of the street network and public space. 1. The proposed development is not inconsistent with the relevant objectives of the building height development standard because, post development, the Rear Building will continue to preserve the environmental amenity of neighbouring properties and public spaces and the sharing of views. 2. The proposed development insofar as it affects the height of the Rear Building will not materially alter the existing building's apparent height, nor its bulk and scale, nor the desired future character of the locality. The desired future character is to an extent derived from the current planning regime of zoning and development standards, and in particular to the extent those controls encourage redevelopment. 3. In this instance the current height and FSR standards in the WLEP 2012 are likely to constrain future development on the site because the existing development already exceeds the permissible limits to a considerable amount, and because the property has been strata subdivided. Substantial redevelopment is therefore unlikely on this site in the foreseeable future. In any event the largely unaltered existing height and FSR does not render the proposal incompatible with the desired future character for the broader locality. 4. The proposed development will also not materially alter the manner in which it currently "positively complements and contributes to the physical definition of the street network and public space" as this largely arises from the lower scale Front Building and its relationship to the street and public open space opposite. This will remain unchanged. 5. The three objectives of the B3 Medium Density Residential zone as set out in the Land Use Table in Pt 2 of WLEP 2012 are: * To provide for the housing needs of the community within a medium density residential environment. * To provide a variety of housing types within a medium density residential environment. * To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The proposed development is not inconsistent with the B3 zone objectives because it provides an ancillary use of communal open space that supplements the housing needs and increases the amenity of the resident community on the Site. 2. I am satisfied, therefore, that under the particular circumstances of this case the variation to the height standard is in the public interest because it is not inconsistent with the objectives of the height standard and neither is it inconsistent with the objectives for development in the R3 Medium Density Residential Zone. 3. Accordingly I find that the development is capable of being granted consent even though it contravenes the height of buildings standard in WLEP 2012. Clause 4.6 request – Floor Space Ratio 1. According to the Clause 4.6 variation request lodged with the DA the alterations to the Rear Building and the demolition of the laundry building result in a small net reduction of 27m2 in the total gross floor area (GFA) of the buildings on the site and commensurate marginal decrease in FSR of approximately 0.02:1 (from 1.28:1 to 1.26:1). 2. Despite the reduction in FSR the development will continue to contravene the current FSR development standard of 0.9:1 pursuant cl 4.4(2) of WLEP 2012. A cl 4.6 request to vary the FSR development standard was submitted with the original DA and tendered as Exhibit E. I have considered that cl 4.6 variation request and concluded that it adequately justifies the deviation from the standard, as required by cll 4.6(3) and (4), for the reasons set out in that request, and that it is well founded. 3. I have also considered, pursuant to cl 4.6(4)(a)(ii) whether the development is in the public interest taking into account the development's consistency with the objectives of the FSR standard and with the objectives for development in the R3 Medium Density Residential Zone. 4. The objectives of the FSR development standard at cl 4.4(1) of WLEP 2012 are: 4.4 Floor space ratio (1) The objectives of this clause are as follows: (a) to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs, (b) to provide an appropriate correlation between maximum building heights and density controls, (c) to ensure that buildings are compatible with the bulk, scale, streetscape and desired future character of the locality, (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality. 1. The FSR changes and the development generally are not inconsistent with the relevant objectives of the FSR development standard because they do not materially alter the existing correlation between building height and density, and the correlation is appropriate under the circumstances. Nor do they alter the buildings' existing compatibility with the bulk, scale, streetscape or desired future character of the locality, and that compatibility is appropriate under the circumstances. 2. Furthermore the largely unaltered overall scale of development preserves the existing environmental amenity of neighbouring properties and minimises adverse impacts on the amenity of the locality. 3. The proposed alterations and additions to the Rear Building are not inconsistent with the B3 zone objectives as set out in paragraph [40] above because they provide an ancillary and beneficial use of communal open space and improved ground level entry with lift access for improved accessibility. These particular improvements result in a development that better meets the housing needs and increases the residential amenity for the community on the site, whilst leaving unaltered the variety of housing types and current medium density environment. 4. I am satisfied therefore that under the particular circumstances the variation to the FSR standard is in the public interest because it is not inconsistent with the objectives of the FSR standard and neither is it inconsistent with the objectives for development in the R3 Medium Density Residential Zone. 5. The development is therefore capable of being granted consent even though it contravenes the FSR standard in WLEP 2012. Roof terrace – consideration of DCP provisions & merits 1. With regard to the rooftop terrace component, the main relevant provisions of the WDCP 2012 are found in Pt C2 Multi Unit and Multi Dwelling Housing, and specifically cl 2.1.2 North Bondi Special Character Area; cl 2.14 Communal Open Space, and cl 2.18 Visual Privacy and Security. The provisions were tendered by the respondent as part of Exhibit 2. 2. Clause 2.1.2 regarding the North Bondi Character Area includes the following description of the "existing character elements": "The predominant building stock is characterised by minimum side setbacks, consistent front setbacks and building frontages to the street whether the building type is apartments or semi-detached dwellings. Roofs are predominantly pitched and red tiled, and are visually dominant on the low side of the street. Much of the area is already developed with very little opportunity for redevelopment on infill sites." 3. The Desired Future Character Objectives in cl 2.1.2 are: (a) To maintain the streetscape rhythm created by uniform building frontages. (b) To improve the amenity for residents while not detracting from the amenity of adjacent buildings. (c) To allow minor alterations and additions in the roof space. 1. The relevant "control" in cl 2.1.2 is found at (h) which states: (h) Roof terraces are discouraged due to the greater potential impacts in higher density areas. 1. At cl 2.14 regarding Communal Open Space, the introduction and objectives state: Communal open space plays an important role in a development where minimum private open space can be provided, encourages resident interaction and provides for landscaping. Objectives (a) To provide communal ground floor areas of high design quality. (b) To encourage a positive street and identity for the development. (c) To provide residents with recreational opportunities. (d) To provide a pleasant outlook for development. 1. The relevant "controls" that form part of cl 2.14 are as follows: Controls (a) 15% of the total site area for development in the R3 zone is to be provided as consolidated communal open space. … (c) Communal open space is to: (i) Be consolidated into a useable area with a minimum dimension of 6m x 6m. (ii) Be located so that solar access is maximised. (iii) Provide a landscape buffer between buildings. (iv) Demonstrate that its size and dimensions allow for a variety of uses, complementary to balconies and private courtyards. These may include active recreation (BBQ or play areas) or passive amenity (shade trees/structures, water features, seating). (d) Where developments are unable to achieve the recommended communal open space, such as small developments (5 or less dwellings) or sites within business zones, they should: (i) provide quality communal spaces elsewhere; and/or (ii) provide significantly larger balconies or greatly increased private open space for apartments; and/or (iii) demonstrate great proximity to public open space and facilities; and/or (iv) provide significant contributions to public open space. When a development is able to achieve the recommended communal open space but the developer particularly wishes to deliver the above alternatives instead, these must be delivered to an exceptional degree. (e) At least 30% of the communal area is to receive 3 hours of direct sunlight between 9am and 3pm on June 21. (f) Communal open space is to be accessible to all dwellings within a development. .. Communal open space may be provided on a podium or roof terrace provided the controls within this Part are met. … In considering the creation of a roof terrace or deck, Council will consider the magnitude of the impact on both privacy and noise for neighbouring residents, with the reasonableness of the proposal. 1. At cl 2.18, regarding Visual Privacy and Security, the introduction and objectives state: Privacy is important for residential amenity. The enjoyment of a residential property by its occupants relies on achieving a reasonable level of acoustic and visual privacy. Roof top terraces are discouraged in areas outside Dover Heights. Objectives (a) To have adequate visual privacy levels for residents and neighbours. (b) To maximise outlook and views from principal rooms and private open space without compromising visual privacy. (c) To ensure buildings are safe and secure for residents and visitors. 1. The relevant "controls" in cl 2.18 are: (d) Above ground open spaces must not directly overlook rooms and private landscaped areas of adjoining properties unless screening can mitigate overlooking. … (f) Privacy needs to be considered in the context of density, separation, use and design and should consider the following principles from LEC decision Meriton vs. City of Sydney Council (2004) NSWLEC 314. … (viii) In areas undergoing change, the impact on what is likely to be built on adjoining sites, as well as the existing development, should be considered. … (g) Roof tops are to be non-trafficable and not capable of being used as roof terraces or as entertainment areas, except in the following circumstances: (i) The predominant residential character in the vicinity of the site includes roof terraces; (ii) They will not result in unreasonable amenity impacts such as overlooking and loss of privacy and acceptable noise; (iii) They should not exceed 15m² in area; and (iv) They satisfy the considerations of the LEC "Super Studio" Planning Principle. (v) They are provided for casual and infrequent activity and not as an extension of private open space or entertaining areas. (vi) Any access must be provided within the envelope of the main building and there are to be no access hoods or lift overruns proposed above the main roof level. Operable skylights and hydraulic lifts are acceptable where they finish generally flush with the roof level. 1. Clause 2.18 concludes with the following acknowledgement: It is acknowledged that in some areas within Waverley there are a number of large roof top terraces. These large terraces (larger than 15m²) may impact upon the visual and acoustic privacy of adjoining properties. Control (g)(iii) above specifically aims to limit this development outcome continuing and the existence of larger roof top terraces in close proximity to the proposed roof terrace does not justify a variation from the maximum size control in (g)(iii) above. 1. The proposed roof top terrace is to be used as a communal open space that will be accessible to all residents within the site, including for residents in the 4 dwellings in the Front Building that have no private open space. It will supplement the approximately 166m2 (or 10% of the site area) of existing ground level communal open space. The additional 80m2 of rooftop communal open space will therefore render the development largely compliant with the numeric area "control" for 249m2, being 15% of the site area. 2. Mr Patterson for the respondent argued that the rooftop communal open space should be refused because the WDCP at 2.18(g) specifically states rooftops are not to be used as roof terraces or entertaining areas except in particular circumstances, and most relevantly that if they are permitted they are not exceed an area of 15m2. 3. Mr Pickles for the applicant argued the 15m2 rooftop terrace "control" needed to be considered in the context of cl 2.18 generally which relates to visual and acoustic privacy impacts. He also argued that the maximum area of 15m2 should be considered in the context of other area "controls" such as those for private open spaces (in cl 2.15 of WDCP 2012), which nominate a minimum area of 25m2 for private courtyards and minimum area of 10m2 for balconies. Mr Pickles contends that these areas suggest, if not demonstrate, that the maximum 15m2 for rooftop terraces reinforces his argument that it relates to private open space areas and not communal areas. 4. Mr Pickles also noted that in the more specific section of WDCP 2012 dealing with communal open space, the control in cl 2.14(i) acknowledges that communal open space may be provided on a roof terrace, "provided the controls within this part are met", and the control at cl 2.14 (j) when "considering the creation of a roof terrace ... Council will consider the magnitude of the impact on both privacy and noise for neighbouring residents, with the reasonableness of the proposal". 5. In the Joint report of the planners and in their oral evidence there was agreement that the proposed rooftop terrace "… design does not result in adverse visual privacy impacts." They also agreed that if the Court were to approve the rooftop communal open space a Plan of Management that addressed the use of the space by residents should be required as a condition of consent. A draft Plan of Management was tendered as Exhibit O. 6. Nevertheless Mr Kosnetter, for the respondent was concerned that failure to strictly enforce the 15m2 limit on rooftop terraces would "undermine the integrity of the Council's controls". In the Planners Joint Report Mr Kosnetter also states "... it is my view that acoustic impacts will be experienced by surrounding properties under different weather conditions and dependent on the number of people on the roof". Mr Kosnetter also acknowledges in the Joint Planners Report that if a 15m2 communal open space was allowed there would be limited utility in the terrace as a communal area. 7. Mr Lockrey, for the applicant, on the other hand argued that the existing 6 storey building is "unique" and "uncharacteristic" in its locational context, as it is typically two to four storeys higher than neighbouring buildings, and that it is the "only property within its immediate vicinity that can provide a rooftop terrace without any adverse amenity impacts to neighbouring properties". With respect to noise impacts Mr Lockrey refers to the acoustic advice of Acoustic Consulting Engineers Pty Ltd, dated 21 May 2019 attached to the Planners Joint Report as Annexure D (relating to the amended root terrace design), and the Acoustic Report also by Acoustic Consulting Engineers Pty Ltd, dated 30 November 2016, relating to the original design and submitted with the DA. The latter report was tendered as Exhibit J, and confirms that the predicted noise levels would comfortably comply with the relevant recommended standards, subject to the imposition of certain recommended control and management measures, including a 1200mm high glass wall on the edge of the trafficable terrace, a maximum of 30 people occupying the terrace, no music be permitted, and no use of the terrace between 9:00pm and 8:00am. The acoustic engineering evidence contained in these documents was not disputed. 8. Based on the evidence of the planners, my own observations at the site inspection, and the undisputed evidence in the acoustic engineering documents cited, the proposed rooftop communal open space, subject to conditions, would not have an unacceptable impact on the visual and acoustic privacy of residents in the locality. Notwithstanding the size of the terrace and whether the 15m2 'control' at cl 2.18 applies, or the weight it should be given compared to other possibly contradictory controls, I find the rooftop terrace is reasonable and acceptable on its merits and in its context. I have reached this conclusion because the rooftop terrace, subject to conditions: * will provide an important additional and accessible facility for all residents of the site; * will not adversely impact on the amenity of other adjoining residents, including their acoustic and visual privacy and views; * will not materially alter the visible built environment, existing character or desired future character of the locality; * will improve the amended development's compliance with the WDCP 2012's control for minimum communal open space, and in such a way that it enjoys a high level of amenity including privacy, views and solar access; and * as it is located on a building that is uniquely tall compared to other buildings in the immediate vicinity, and is at a height that cannot be replicated by virtue of the WLEP 2012 height limit, will not set a precedent, nor undermine the WDCP 2012 nor lead to a proliferation of other rooftop terraces. Car parking and stackers – vehicular and pedestrian safety and amenity impacts 1. The other two components of the proposed development relate to the provision of additional car parking. One component involves the construction of two additional external car parking spaces within a portion of the ground level communal open space area. The other involves demolition of the laundry building, the removal of 5 substandard parking spaces and the introduction of three car stackers each three tiers high and accommodating a total of 15 vehicles, and associated landscaping. The net result is an increase of 12 parking spaces on the site. 2. With respect to the laundry demolition, car stackers and associated landscaping, the key issues are the safety of the proposed stackers, the safety and amenity of pedestrians using the site, the acoustic impact of the car stackers, and the visual impacts associated with the operation of the car stackers. The relevant provisions of the WDCP 2012 associated with the above issues are Pt B8 – s 8.3 Pedestrian/Bicycle Circulation and Safety, Pt C2 – s 2.11 Vehicular Access and Parking and s 2.12 Pedestrian Access and Entry. 3. TEF Consulting, the traffic engineers for the applicant, prepared a letter of advice or "Design Statement" on Traffic and Parking dated 22 August 2017 which was submitted with the DA and tendered as Exhibit D. TEF Consulting also prepared a set of vehicle swept paths during the proceedings at the request of the Court, due to jurisdictional concerns that the vehicles accessing some of the car stacker spaces would need to manoeuvre across the boundary of the site and onto that portion of the land at 14 Military Road not forming part of the reciprocal rights of way. The additional vehicle swept paths were tendered as Exhibit R. Traffic engineers Mr Sannikov of TEF for the applicant, and Mr Pike of Waverley Council for the respondent prepared a Joint Expert Report dated 25 May 2019 and tendered as Exhibit 4. 4. The Joint Report of the Traffic Engineers (Ex 4) primarily focuses on 1. safety issues associated with the operation of the car stackers and the potential for pedestrians to be injured whilst the car stackers are activated; and 2. safety issues for pedestrians and cyclists associated with the vehicles manoeuvring on site or using the shared driveway. 1. The traffic engineering experts did not appear as witnesses in the proceeding but did agree in their joint report that safety issues associated with the operation of the car stackers can be addressed by five specific safety measures itemised on page 2 of that report, and safety issues associated with vehicular movements on the driveway can be adequately resolved by the imposition of a condition set out on the fourth and final page of their report. 2. The safety measures proposed by the traffic engineers for the car stackers are: * Provision of manual key lock control for the mechanical stackers. Key locks are to be installed on posts between stackers 1&2 and 2&3, as shown on the attached drawing prepared by TEF Consulting (18072/01 Rev B,dated15/05/2019, Annexure B). Remote control of stackers shall not be allowed. * Provision of gap cover flaps on the top platform of each stacker. * Provision of a trip wire safety stop control feature as depicted on the attached drawing 18072/01). * Provision of a railing or fence on the eastern side of car stacker No. 3, to protect pedestrians on the footpath between the stacker and building No. 16 (the Front Building), and 1. The rationale for the above recommended measures can be found in the summary provided by Mr Pike, and agreed as an accurate account by Mr Sannikov, in the Joint Report of the traffic engineers. The summary on page of their Joint Report 2 says: "Given the location of the proposed car staking system is adjacent to the main pedestrian walkway into and out of the site, it is crucial to do everything possible to increase pedestrian safety in the area… and should the stacking system be approved it is recommended that all possible safety improvements be made in order to minimise risks. The primary risk of pedestrians walking in the area and suddenly being lifted up when a car approaches will be eliminated by a motorist physically having to exit the car to use the manual key lock system before the stackers will raise/lower.. Risks associated with crushing (whilst the stacker is closing) are minimised via the installation of a trip wire safety feature. Gap cover flaps will be used to minimise any incidents of items falling through the gaps or heels being caught. It was determined that pedestrians exiting either of the 2 'laundry rooms' on the outside of building 16 (the Front Building) may be faced with a large drop should the stackers be in operation when leaving the rooms. It is (therefore) recommended a permanent handrail or barrier be installed along the eastern side of the stackers to prevent these pedestrians falling into the stacker." 1. Additional safety measures associated with use of the driveway recommended by the Traffic Engineers jointly, as follows: "Exit points of parking areas of larger than 10 car spaces require the following safety devices installed within the boundary of the property: (i) Two stop signs; (ii) A white, unbroken line at the exit point appropriate to accompany stop signs; (iii) Two fish eye mirrors to improve sighting of pedestrians traversing the public footpath area; (iv) Either boom gate or a speed hump, or both, within 8 metres of the exit point; and (v) Clear signage and enforcement of an 8km per hour speed limit and vehicles' lights being left on within the property." 1. A list of draft Conditions of Consent was tendered as Exhibit 7. It includes the traffic engineers' recommendations within draft Condition 4, under the heading CAR STACKER - SAFETY. 2. Draft condition 4 also includes an additional requirement, as follows: "(d) There must be a delineated pedestrian path as depicted on the drawing prepared by TEF Consulting (Site plan – Proposed pedestrian path delineation Job 18072 Rev A, dated 03/06/2019)." 1. The plan referred to in draft Condition 4(d) was attached to the draft conditions as part of Exhibit 5. It depicts a pedestrian path 1.2m wide delineated by a solid white line. The path commences at the Military Road street frontage, runs immediately parallel to the southern edge of the Front Building for the full length of that building, across the turning area used by vehicles manoeuvring in and out of the car stackers and terminates at the brick retaining wall located between Car Stacker No.1 and the Rear Building. It would provide a delineated path for pedestrians between the street, the entrance to the Front Building and the car stackers, but not to the entrance to the Rear Building or the entrance to the adjoining flat building at 14 Military Road that are also accessed off the shared driveway. The majority of the proposed pedestrian path is located within the site's 2.285 wide Right of Carriageway. Therefore whilst a pedestrian pathway is 'delineated' it is not and can not be separated from the vehicular accessway by virtue of the Right of Way and narrowness of the space between the Front Building and the building at 14 Military Road. 2. In the oral submission given by Ms Todd on behalf of the owners of 14 Military Road (a hard copy of which was provided to the Court as part of Exhibit 5) the increased risk to the safety of pedestrians using the shared driveway was raised. The concerns arose due to the additional traffic volumes generated by the 12 extra car spaces, and the failure to uphold the s 2.11 provision of the WDCP that states "the safety of pedestrian entry and circulation is not to be compromised by the location of the driveways and car park access". Ms Todd also points out that "(g)iven the width of the driveway to facilitate car movements, there is no space to provide a separate pedestrian walkway for all users of the combined access that would allow pedestrian safety to dominate." 3. Ms Todd also raises the fact that the owners of 14 Military Road have not granted owner's consent for any works on that part of the Right of Way on their land, and therefore no works can be approved as part of any development consent. Similarly I note that the use of any part of 14 Military Road cannot be approved without the owners' consent. 4. In recognition of this jurisdictional issue the parties proposed during the proceedings an additional 'contingency' in the form of draft Condition 4(f)(iv) as an alternative to the driveway safety condition in the event that the consent of the owners' of 14 Military Road cannot be obtained. Condition 4(f)(iv) states: "iv. Either a boom gate or speed hump, or both, within 8 metres of the exit point;(subject to the concurrence of the owners of No. 14 Military Road; if the concurrence cannot be obtained and written confirmation of this circumstance is provided to the satisfaction of the Council, the development can proceed without the boom gate or the speed hump)." 1. The uncertainty around the delivery of a boom gate or speed hump, or both, and the remedy of simply dismissing this recommended safety measure in the event that owner's consent or 'concurrence' cannot be obtained is more than an unacceptable loose end that confirms the unacceptability of the proposed vehicular and pedestrian arrangements. The proposed condition 4(f)iv is not a lawful condition as it defers an essential part of the application to the future. Without the consent of the owners of 14 Military Road to the works on their land the safety measures jointly considered necessary by the traffic experts cannot be undertaken. The suggestion in condition 4(f)iv that the "development can proceed without the boom gate or the speed hump" was not addressed in evidence and is in fact contrary the evidence of the traffic experts. 2. The Joint Report of the Traffic Engineers includes the plan 18072/01 at Annexure B of that report. The Annexure B plans shows the various safety measures recommended in draft Condition 4. It also shows the swept path of vehicles entering and exiting the middle car stacker, Car Stacker No 2. Extrapolating that swept path to the western most spaces in Car Stacker No 1, it became apparent that vehicles manoeuvring in and out of some of the spaces would necessitate a transgression onto the land at 14 Military Road that was not part of the reciprocal Right of Way shown on the survey at Exhibit C. During the course of the hearing, therefore, the applicant's traffic engineers TEF Consulting provided additional swept paths that also included the property boundaries and Right of Way. Those additional swept paths for all car stacker spaces were tendered as Exhibit R. They show that: 1. Vehicles accessing the three western most spaces, in Car Stacker No 1 would indeed cross over into the adjoining land for which landowner's consent has not been granted, unless, as now depicted in Dwg No 18072/02 Rev A dated 04/06/2019, the drivers used a three point turn; and 2. Vehicles accessing the three eastern-most spaces, in Car Stacker No 3 would also need to swing beyond the Right of Carriageway and transgress onto a portion of No 14 Military Road not within the Right of Carriageway and in close proximity to or in front of the entry to that building. To prevent any transgression on to the adjoining 14 Military Road beyond the Right of Way it is apparent that a three point turn would also be needed for vehicles accessing Car Stacker 3. 1. The swept paths in Exhibit R demonstrate that there is insufficient room for vehicles to access six spaces within the car stackers without either transgressing beyond the Right of Way or utilising a three (or more) point turning manoeuvre. Without the consent of the owners of the affected adjoining property the Court does not have power to allow the use of that land beyond the Right of Carriageway for vehicular access and I fail to see how enforcement of three (or more) point turning manoeuvres can be rendered practical by a condition of consent. This alone confirms the proposed car parking arrangements in the central part of the site are not workable within the tight spatial constraints of the site. It also significantly exacerbates an existing pedestrian safety risk which is contrary to or inconsistent with the WDCP 2012 provisions of: 1. Part B8 – s 8.3 objectives (b) and (c) which are to maintain bicycle and pedestrian safety, and to provide safe and easy access to buildings; 2. Part C2 - s 2.11 control (e), which states that "the safety of pedestrian entry and circulation is not to be compromised by the location of driveways and car park access"; 3. Part C2 - s 2.12 which identifies that access to a building should give priority to achieving high quality, accessible and safe pedestrian access to all people who live and visit the development. 1. Neither can the proposed pedestrian path depicted in the plan attached to the draft conditions operate as a separate pathway (as suggested in Part C2 cl 2.12 Control (c) despite the applicant's suggesting this as a purported solution to pedestrian safety and amenity issues. The proposed delineated pathway can only operate as a shared way by virtue of its location within the Right of Carriageway and within the turning area of all 15 vehicles accessing the car stackers. Furthermore it does not serve the safety needs of pedestrians accessing the Rear Building or the entrance to 14 Military Road, who must continue to use the un-delineated driveway. This arrangement would more likely create a false sense of security for pedestrians and exacerbate an already poor pedestrian environment. 2. Regarding the other car stacker issues, I find the car stackers to be poorly conceived and unacceptable in terms of the visual impact and the impact on residential amenity and quiet enjoyment, especially at night time, as the vehicles manoeuvre in and out of the car stackers and the stackers move up and down. The car stackers are unacceptable because of 1. the inability to mitigate those impacts due to lack of any space available for screen planting between the car stackers and dwellings immediately adjacent to the east (in the Front Building) or the south in the adjoining apartment building at 14 Military Road, both of which will directly or obliquely overlook the stackers and manoeuvring area; 2. the lack of evidence that the narrow (0.7m wide) planter on the western side of Car Stacker No 1 that is wedged between the pit wall and the retaining wall can sustain trees tall enough and dense enough to provide mitigation screening for the close and affected residents adjoining to the east in the Rear Building; 3. the evidence of Mr Kosnetter and the residents' reasonable concerns about amenity impacts, and the support of Mr Lockrey for a condition of consent preventing the operation of the car stackers at night, even though Mr Lockrey acknowledged that the agreed curfew commencement hour of 11:00pm was "arbitrary". 1. I also find that the combined effect of the doubling in the number of car spaces on the site, the extended waiting time to safely operate the stackers and the lack of room for those waiting vehicles to be accommodated without blocking the Right of Way, will increase congestion of the driveway and reduce the safety and efficiency of its operation for all users, including for motorists, cyclists, and pedestrians. 2. The additional parking spaces (including spaces 15 to 29 in the car stackers, and spaces 13 and 14 within the ground level communal open space area) are unacceptable due to the development failing at a fundamental level to "promote good design and amenity of the built environment" and is therefore contrary to that Object of the EPA Act. 3. The additional parking spaces and resultant adverse impacts also serve to demonstrates that the site is not suitable for the development as proposed, and therefore the development is contrary to s 4.15(1)(c) of the EPA Act. 4. Finally turning to a request from Mr Pickles that I consider exercising the power pursuant to s 4.16(4)(c) of the EPA Act to grant a partial consent for a part or aspect of the development that is acceptable. Mr Pickles confirmed that the applicant was not willing to amend the application by deleting any components or part of the proposed development and indeed pressed for the approval of all components. 5. Whilst the alterations to the Rear Building, including the addition of a rooftop terrace in the manner proposed and subject to conditions, may at face value have benefits and be acceptable in terms of local amenity impacts and satisfaction of the objectives of Council's DCP, the additional parking and car stackers are a significant component of the development and are not acceptable. It is not up to the Court to 'cherry pick' those aspects of a development application it considers acceptable and approve them whilst at the same time refusing other major components that are unacceptable. Findings 1. I therefore find that the proposed car stackers are contrary to good design and pedestrian safety, and would result in unacceptable visual impacts that cannot be satisfactorily ameliorated. 2. The car stackers and external additional parking spaces are also unacceptable due to the inadequate space available to satisfactorily accommodate all vehicular movements (as illustrated by the swept path evidence), pedestrian activity and landscaping mitigation measures in a well-designed, safe and functional manner. 3. I am not convinced that the proposal is one that can reasonably be split into acceptable and unacceptable elements, nor that the circumstances warrant the unusual exercising of the power to grant a partial consent. 4. For the reasons set out above the development consent as a whole must therefore be refused and the appeal dismissed. Orders 1. Accordingly, the Court orders that: 1. The appeal is dismissed. 2. The exhibits are returned except for Exhibits 1 and A. ……………………………….. J Bindon Acting Commissioner of the Court ********** 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: 13 August 2019