12 The current consent DA 239/2002 requires, in the respondent's issues, the tops of the tanks and their walkways to be no more than 2m above the parapet of the old factory tower, and may include tanks 20m tall so long as they comply with the 2m above the parapet. This would necessitate 20 metres tanks being excavated into the ground. Some tanks have been erected up to 4m higher (approx.) to the top of the walkway handrail. Tank 11 offends by about 4m, Tanks 17 & 18 by about 2.5m and Tank 10 by about 2.1m, says the respondent.
13 The applicant says that the condition on height is ambiguous and nominates tanks can be 20m high and/or up to 2m above the highest point of the tower that is the stair roof. If the 2m limit applies in preference to the 20m tank size, the applicant says Tank 11 exceeds the height condition by only 2.4m (approx.) to the top of the handrail, Tanks 17 & 18 are only about 0.9m higher and Tank 10 is only about 0.5m higher. The rest comply, says the applicant.
The Contentions
14 The applicant had sought to clarify the above dispute by a s96 modification application that would change existing condition 1.4 to allow ALL tanks to be the same height as Tank 11, which is the highest tank including its walkway. Also the applicant sought to avoid painting the horizontal tanks by changing condition 1.5 to allow a blue metal colorbond fence 1.8m high inside the existing chainwire boundary fence.
15 A summary of the contentions, before the parties reached Consent Orders were:
1 Some of the vertical tanks are too high.
2 Those vertical tanks block valley and distant mountain views from houses adjoining the site. The tanks including their walkways should be lowered to be no more than 2m above the main parapet of the Old Oak Factory tower. All future vertical tanks should comply with the same condition, and be staggered in height and painted to reduce their visual impact.
3. The horizontal tanks should be painted also and the trees planted. The colorbond fence is unacceptable as it would be subject to graffiti and vandalism, and would be highly visible from the highway and difficult to maintain into the log term future. It would also present a stronger visual impression than the tanks given the texture of light and shade between the tanks and the softening with appropriate colors and screen trees.
The Evidence
16 During the Hearing the parties reached Consent Orders as annotated on Exhibit 7.