Landmark Group Australia Pty Ltd v Council of the City of Sydney

Remaining contentions in terms of the Design DA

1. Oral evidence focused on the Design DA and, other than in terms of ventilation, was provided by Ms Ch'ng and Ms Robinson for the Council and Mr King (on solar access) and Mr Sutherland for the applicant (the design experts). Evidence on ventilation was provided by Mr Wall for the Council and Mr Glanville for the applicant.
2. It was agreed that traffic issues had been resolved, other than in terms of the amenity impacts associated with the service area. Oral evidence of the acoustic experts was not required as they had agreed in their expert Joint Report (Exhibit 7) that the amended Design DA, with conditions, would meet the Council's acoustic requirements. This was in part due to the re-orientation of windows and the addition of acoustic plenums and clerestory windows to top floor apartments facing Botany Road to provide ventilation as an alternative to having windows open, and also having regard to the acoustic design requirements for development fronting major roads contained in the Infrastructure SEPP.

Meeting the design excellence requirements

1. Mr Clay submitted that the purpose of cl 6.21 of the LEP, the design excellence provision, was to deliver the highest standard of architectural, urban, and landscape design. The previous applicant had chosen to apply the clause, which involved a competitive design process, as part of achieving design excellence in order to secure bonus FSR.
2. The winning design of that process must be the subject of the Design DA, being the preferred design, with such changes or recommendations as the competition Panel decide. Only then does the development achieve design excellence status and the additional 10% FSR.
3. Put another way, the detailed design has to be based on the winning design but take on board the competition Panel's recommendations. These two requirements comprise the parameters for assessment of the (detailed) Design DA.
4. In this regard, the Panel had agreed that the winning Cottee Parker JPRA scheme was "the most capable of achieving design excellence subject to further design refinements." Those design refinements included reviewing cross ventilation, solar access, and the size and layout of apartments, so that the apartments can achieve good amenity and meet the requirements of the ADG.
5. Specifically, the Panel identified 11 elements requiring further design development. The following elements were of particular relevance in the Design DA appeal: 1. Further resolution of the interface between private, semi-private and communal open space throughout the site particularly for north facing apartments of Building B. 2. Design refinements to managing safety and legibility throughout the site, including resolution of pedestrian/vehicular conflicts. 3. The resident/visitor pedestrian arrival experience through the site (specifically the interface with the garbage room). 4. The northern and southern ends of the facade of Building A fronting Botany Road should be screened or in-filled to maximise acoustic efficiency. Design development should improve acoustic and pollution issues, and maximise natural ventilation in accordance with the requirements of the ADG. 5. Cross ventilation, solar access, apartment size and layout should be reviewed to ensure apartments can achieve good amenity and meet the requirements of the ADG. 6. The southern elevation of Building C should be designed to allow natural light whilst also maintaining visual privacy to Green Square Public School. 7. The use of winter gardens will contribute to GFA and the proposed height will breach the approved Stage 1 envelope. Compliance with these factors should be addressed during the detailed design for the Stage 2 development.
6. The Council's design experts argued that the intent of a Design DA is that it improves and builds on the outcome of a Concept consent. Further, the primary aim of the ADG is to improve the design quality of residential apartment development and the objectives and benchmarks of the ADG provide for good apartment design. The Design DA plans do not achieve the benchmarks in the ADG, consequently the development does not deliver good apartment design and as such does not achieve design excellence.
7. As design excellence is not achieved, the Design DA cannot increase the FSR by 10%, the FSR is therefore non-compliant, and consent cannot be issued without a cl 4.6 request, which had not been submitted.
8. Mr To submitted that design is inherently contextual which affects the outcome on any particular site. That necessarily means that the achievement of ADG benchmarks is not dispositive of whether design excellence is demonstrated. Indeed, a design that achieves near compliance with ADG benchmarks is a way of demonstrating design excellence and one needs to look at the development as a whole rather than judging design excellence in isolation by a particular or sole measure. In the case of this site, there are multiple constraints, namely: solar access; site levels; the noise of Botany Road; the reduced setback of 2-6 Allen Street from the common boundary; and the sensitive land use to the south, being the Green Square School.
9. Given these constraints, the Court ought to be satisfied that, in getting close to solar access compliance and achieving ventilation and acoustic compliance, as well as providing compliant and high quality areas of communal open space, this is a development that demonstrates design excellence. It is also a design that will be at least as good as, if not better than, what is around it, in particular the recently constructed development at 233-235 Botany Road which also had to demonstrate design excellence.
10. The Council's experts agreed that context was a relevant consideration. However, determining what might be excellent design in one situation might not be excellent design in another. For example, the design seeks to have a presentation to Botany Road, as a positive design outcome, but that has noise and ventilation implications which the design also needs to address.
11. Further, Ms Ch'ng considered that this is a site that can deliver the outcomes sought by, or the objectives of, the ADG. Ms Robinson also noted that residential is not the only use permitted on this site. It is a B4 zone, so there is no obligation that the site has to deliver a residential development as other uses are permitted. However, the Concept DA has been approved and a design excellence process has been completed which tells the consent authority that the ADG could be achieved. The Design DA is the first instance where it is being said that the ADG cannot be complied with.
12. Mr To maintained that, if a site is heavily constrained by its context, namely by surrounding development, topographical features, or whatever the constraints may be, then development which does not necessarily meet ADG benchmarks must still be able to demonstrate design excellence. Design excellence could be demonstrated, for example, by development that came very close to meeting ADG benchmarks despite being heavily constrained.
13. However, Ms Ch'ng maintained whilst that may be the case conceptually, it was not the case in this instance. It is a question of density. If there is too much on the site it skews the result and, in her view, the development had too much density and, as a result, was one level too high.
14. Ms Robinson agreed that there are ways to comply with the ADG on this site and she would find it difficult to say that a development that did not meet the ADG requirements delivered design excellence. If a development was very close to ADG compliant and performed well in every other respect, she might agree that small ADG departures did not compromise design excellence. However, it would need to be a robust design excellence test in other respects. Achieving amenity outcomes would be part of that test.
15. Mr To submitted that the winning design out of the competitive design process was subject to Panel comments requiring the detailed design to be developed. The Design DA was the result of this process. Significant work had been done by the applicant to address the Council's concerns (which continued during adjournment of the hearing) to the extent that ADG compliance was largely achieved.
16. Whilst the issues of ventilation and solar access are dealt with in detail later, Ms Ch'ng noted that the long aspect of the buildings face north so in fact the orientation of residential uses is quite good. If there was reduced yield or some of the apartments reconfigured they would achieve ADG solar access and cross ventilation compliance.
17. Ms Ch'ng accepted that the site was constrained but considered that the solar situation was in part a consequence of the decision made on the finished floor levels which, if raised, would improve solar access (but result in less levels). Also, the apartments could be combined and reduced to achieve compliance. Ms Robinson also noted that some apartments that have been counted as ADG compliant rely on clerestory windows which, when considering design excellence, raise potential amenity issues given their proximity to the roof terrace where people congregate.
18. Ms Ch'ng also argued that the site's constraints were always flagged as a risk. Accordingly, the Concept consent contains conditions requiring certain measures to 'future proof' the design using the benchmarks in the ADG. These have not been met in the proposed development.
19. Mr Sutherland argued that the Council has approved development that did not meet the ADG benchmarks, including the benchmarks for solar access and cross ventilation, and that focusing on numeric compliance stops one from undertaking more detailed assessment of how the building is actually performing. For example, as the proposed buildings rise above the shadow cast by the surrounding buildings, 50% of apartments receive 3 hours of solar access, 45% receive 4 hours and 27% receive 6 hours. Therefore, the development performs extremely well on solar access.
20. Mr Clay submitted that, in determining the original concept application, there was obviously assessment and consideration of the constraints of the site, including the existence of nearby buildings and the school, and frontage to Botany Road, so these constraints were known when the building envelopes were set and the design conditions imposed, such as requiring a 3m eastern setback. Condition 10 was in lieu of a site specific DCP and contains design requirements to achieve a particular outcome. That is why it references specific design outcomes, such as cross through and 2 storey apartments, and a minimum number of lifts.
21. He concluded that the trouble with the Design DA did not simply begin and end with the ADG. There are "lots of little things" which may be capable of rectification but, when added up, demonstrate that the Design DA falls well short of an appropriate development, let alone one which is required to be a building exhibiting design excellence to receive the 10% FSR bonus.

Ventilation

1. The Council argued that four of the proposed apartments did not have adequate ventilation and the ventilation was provided by improper sources.
2. The ventilation experts prepared a Joint Report (Exhibit K). During the hearing, an updated ventilation schedule was provided (Exhibit 15). The experts agreed what a sufficient volume of fresh air is for natural ventilation and the development met those requirements. However, they disagreed in terms of compliance for natural cross ventilation.
3. Much evidence was given on how to determine adequate natural cross ventilation. This included having regard to the percentage of floor area to window opening sizes, the location of window openings and any obstructions to them, and the resultant appropriate air flow rates. The ADG contains a definition of Effective Openable Area for windows to determine their ventilation effectiveness given factors such as whether they are screened or obstructed. The ADG references window sizes to be 5% of room area to provide compliance in terms of natural ventilation. Air flow rates are then dictated by inlet and outlet sizes and location.
4. In simple terms, natural cross ventilation, rather than natural ventilation, is the ability to enjoy fresh air as a breeze through the apartment. The experts agreed that there is no ADG required volume or air flow rate to achieve natural cross ventilation although you would never go below 2-3 times the air flow rate.
5. Mr Wall argued that the development was non-compliant as, in his view, unless 10 times the airflow rate was achieved, an apartment could not be considered to have adequate natural cross ventilation. He had undertaken an assessment of compliance based on a conventional residential flat building (RFB). His assumed air flow rate of 10 times was based on a draft City of Sydney Guideline that he was involved in preparing. This draft Guideline was appended to the Joint Report (Exhibit K) but Mr Wall accepted it had not been adopted, or even publicly advertised.
6. Based on his assessment, the four apartments in question achieved 75%, 44%, 29% and 26% of desired natural cross ventilation respectively.
7. Mr Glanville argued that there is no ADG numerical requirement in terms of an air flow multiple. The 10 times figure was arbitrary. If air travels unobstructed from one side of the room to the other in his view that was satisfactory natural cross ventilation. Further, as there is no ADG guide for natural cross ventilation, he had considered the BASIX assessment undertaken for the development which supported his view that the four apartments are naturally cross ventilated.
8. Mr To submitted that all the ADG requires is the 5% window size test. If the windows met this definition, the provision of natural cross ventilation was deemed to be satisfied. If not it was up to the applicant to find another way to achieve compliance. The applicant's position was that there were other ways ventilation could be achieved. Mr To was also critical that the Council was introducing new criteria outside the ADG by referencing a draft Guideline.
9. He submitted that Mr Wall did not dispute that there would be air flow but was not happy that the amount would provide adequate amenity.
10. In this regard, Mr Wall was concerned that the obligation is to have a fresh air source free of pollutants. However, the application did not meet ADG equivalents as there is not enough fresh air having regard to the requirements of the Building Code of Australia (BCA) for diluting pollutants.
11. Specifically, the BCA excludes ventilation tunnels as a ventilation source. The source must be from a courtyard or open to the side. A ventilation tunnel is not defined in the BCA however, in Mr Wall's view, the windows of the four affected apartments open to the covered service driveway, containing the loading and bin storage areas, which was comparable to a tunnel.
12. There was disagreement between the experts as what 'open to the sky' meant. The BCA requires sensitivity to the space providing the natural ventilation. Mr Wall said there would be concentrated odour around the bin and loading areas. However, Mr To indicated that the bins would be enclosed whilst Mr Glanville argued that the area in question would have sufficient flushing and, whilst external circumstances may impact this, those circumstances would have to be extreme. In his view, the affected windows are adjoined by an open area not a tunnel.
13. In terms of the percentage of apartments and whether they met the 60% minimum requirement for natural cross ventilation under the ADG, the experts also had regard to the acoustic evidence which dealt with the proposed use of plenums to assist with ventilation. Mr Wall believed that, with windows closed to meet acoustic requirements, apartments would need to rely on the plenums being open for ventilation. Mr To argued that Mr Wall started from the wrong premise - that is that one could not open the windows - but that was not the case. Mr Glanville believed that, with windows open, there is natural cross ventilation. If the windows are closed but the plenums are open, cross ventilation is still achieved. He assessed that 65% of the apartments achieved natural cross ventilation.
14. Mr Wall originally assessed that only 43% of apartments complied with natural cross ventilation but he agreed that around 52% could comply if changes to the plans were undertaken. These were associated with relocation of clerestory windows, enlarged windows and setback of windows to the lift core, planter boxes and other rooftop obstructions.
15. However, Mr Clay submitted that such amendments were not in the application before the Court, where compliance is not achieved, and they cannot therefore be reasonably assessed to determine if compliance would be improved or met.

Solar access

1. The Council contended that an insufficient number of proposed apartments would receive a minimum of 2 hours of direct solar access between 9am and 3pm in midwinter being less than the 70% required by the ADG. Further, more than 15% would have no direct sun which is more than supported in the ADG. This results in poor residential amenity and does not demonstrate good design as it did not meet the ADG objective of optimising the number of apartments receiving sunlight to habitable rooms, primary windows and private open space.
2. The design experts prepared an initial solar Joint Report (Exhibit 5) and a supplementary solar Joint Report in response to the amended application (Exhibit 16). However, the Council indicated compliance was still not achieved notwithstanding the amendments.
3. The fundamental difference between the experts was the interpretation of control 4A-1 of the ADG. The control states that: "living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 2 hours of direct sunlight between 9am and 3pm at midwinter…"
4. Ms Ch'ng argued that both living rooms and private open spaces of an apartment need to receive the required 2 hours to meet the ADG requirement not only one or the other of these areas, as Mr Sutherland argued.
5. Mr Clay submitted that he was not aware of any case where the Court has approached this as disjunctive rather than cumulative, that is to say where it is either/or, as distinct from both, remembering the purpose of the solar access provision is to ensure that people have options to enjoy that solar access.
6. Ms Ch'ng also argued that apartments need to receive at least 1m² of sun 1m above the floor for at least 15 minutes to not be a 'no sun' apartment.
7. In simple terms, the applicant's experts argued that, if the sun hits the glazed façade of a living room, or a balcony, it should be counted as solar access compliant, and if any living area of an apartment receives sunlight for 15 minutes even in different locations or through a rooftop clerestory window it should not be considered as receiving no sun. The 1m² above 1m test did not apply to the 'no sun' assessment only to the '2 hour receiving' assessment.
8. Based on Ms Ch'ng's interpretation, 65% of the apartments in the amended application would receive the required ADG 2 hour minimum solar access, relative to the ADG required minimum of 70%, whilst 19.7% (20%) of apartments would receive no sun.
9. Based on Mr Sutherland's interpretation, and the interpretation of Mr King as to how to determine sunlight access, which I will go to shortly, 69.3% (69%) of apartments receive at least the required 2 hours of sunlight whilst 16.7% (17%) get no sun.
10. Mr King considered the issue more relevantly is whether the glazing of living areas gets sunlight to determine adequate solar access. He argued that the DCP considers 1m² to be a sufficient area of glazing to receive sunlight for solar access to be provided. Further, on a site like this, it is an unreasonable expectation to achieve 70% solar access compliance. It should be well understood that this percentage is not going to be achieved and the ADG makes provision for approving lower percentages. Achieving 70% is therefore not an indicator of good design, much less of excellent design, because solar access is a product of external circumstances.
11. He and Mr Sutherland did accept however, that the percentage of apartments complying with the ADG requirements could be increased if there were less apartments or a different mix of apartment sizes.
12. Ms Ch'ng did not accept that it would be difficult for a development on the site to achieve the solar access compliance requirements of the ADG. It was a question of design and yield.
13. Mr Clay noted that there was no evidence from Mr Sutherland that this development could not achieve the ADG requirements. By contrast, Ms Ch'ng stated this could be achieved by following the conditions in the Concept consent of combining some apartments or making them 2 storey, whereby amenity is improved and compliance can be achieved
14. He was also concerned that Mr King, as an expert, did not accept the ADG criteria, by saying it was unreasonable to achieve 70%. Yet the Concept consent sets that target, the ADG separately sets that target, the competition Panel set that target, and the winning design set that target. Near enough is not good enough. There is no reason why the amenity provided by compliance with, or achieving, such criteria should not be met. In a development of over 130 apartments, if the 'no sun' target is not met by 2%, that may not sound much, but it is 3 additional apartments getting no sun.
15. Mr Clay submitted that the ADG already builds in the leeway for, amongst other things, constraints, by only requiring 70% compliance, and this is a development where it has the advantage of a long axis running east/west so the design can focus on a northerly aspect. There is also nothing in the ADG which says, because higher apartments receive a lot more solar access, the amenity of those lower down can be compromised. It is self-evident that the higher one goes, the more solar access there is on a site such as this. It is the amenity of apartments that have adverse impacts, and the number of apartments which have a substandard amenity, that is at issue.

Height exceedance and the adequacy of the cl 4.6 written request

1. The Design DA proposes to exceed the maximum permissible height for the site under the LEP and the Concept consent in a number of locations as shown in a height plane map comprising part of the amended plans (Exhibit D). Exceedances are for lift overruns, plant on all 3 buildings, clerestory windows, and for communal open space and associated rooftop structures on Buildings A and B.
2. The highest point of the development is the lift overrun for Building B which, at 25.258m at its highest point, breaches the height standard by up to 3.258m or 14.8%. Other structures including lift overruns, pergolas, parapets and plant of all 3 buildings exceed 22m by lesser amounts. The highest breach on Building C is to the top of the lift overrun which breaches the height by 546mm.
3. An amended cl 4.6 written request for the height breaches (the request) was filed with the amended application (Exhibit J).
4. In terms of providing justification for the breaches, it was agreed that the development met the objectives of the B4 zone. As outlined in the request, the proposed uses are permissible and are compatible with surrounding uses. They replace a commercial use with uses more compatible with the emerging mixed use and residential character of the area. The site is also close to Green Square station which will maximise public transport patronage and encourage walking and cycling.
5. In terms of the objectives of the height standard and the environmental planning grounds supporting the variation, the following summarises the advice contained in the request: 1. The minor variations to the control are necessary to facilitate plant on the roof and allow the use of the roof as communal open space. 2. The ground floor level is established by the peak flood level and development could not be lowered to reduce the extent of variation. The proposed variation therefore allows for the most efficient and effective use of the land. 3. The development will present as 6 storeys to Botany Road and is therefore appropriate to the site context which is characterised by an emerging 6 storey scale. It will therefore be consistent with the desired future character of development in the zone and locality. 4. The site does not contain a heritage item nor is it located within a heritage conservation area. The Green Square School to the south is a heritage item. The proposed elements of the development adjoining the school are predominately below 22m in height and the scale as viewed from the school will therefore not appear excessive. The school's landscaping, which will be protected during construction, combined with the landscaping proposed in the development, will soften views of the development from the school buildings. The height is appropriate in the circumstances and represents an appropriate transition in scale to this heritage item. 5. There will be no significant adverse impacts to adjacent properties. There will be no impact on any scenic or iconic views or loss of privacy. There is less overshadowing, including from those structures that breach the height, than is caused by the adjoining approved building at 233-235 Botany Road for most of the day and there will be no adverse impacts in terms of loss of solar access. 6. Strict compliance would lead to a less satisfactory outcome as it would require the removal of the rooftop communal open space and reduce the amenity to occupants of the development. The ground area is heavily overshadowed by surrounding buildings such that it is necessary to locate the open space on the roof in order to achieve solar access. The Panel commended this aspect of the proposal and it will provide a significant amenity feature for future occupants. 7. The Council has historically adopted a relatively flexible approach to the height control where a variation is sought solely to deliver rooftop communal open space where it would enjoy generous solar access, as in this instance. In particular, the locality in which the site is located contains many other approvals which provide for similar variations in an area undergoing transition. Examples of recent development approvals were provided. 8. Strict compliance with the height standard is unreasonable or unnecessary in the circumstances as the proposed height is consistent with that anticipated by the approved Concept consent with every building complying with the roof RL nominated in condition 7 of that consent and with the number of storeys as provided for in the consent. Further, condition 7 contemplated that there would likely be components of the development which exceed the height control. 9. The components which exceed the height limit are discreetly located away from Botany Road and setback from the edges of the buildings. They are unlikely to be readily visible from the street. The scale of the development will not be perceived as jarring or antipathetic in the streetscape and urban design context. 10. There are therefore sufficient environmental planning grounds to warrant the variation sought which will achieve a superior outcome with a high level of residential amenity within the site and without any adverse impacts to adjacent sites. 11. The development will be in the public interest because it is consistent with the objectives of the standard and of the zone. 12. The contravention will not raise any matters of state or regional significance, and there is no material public benefit in maintaining the standard generally or in relation to the site specifically in this instance.
6. Mr To referenced the Court's decision in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action) and submitted that the request responded to that decision. The substantial breaches are for elements which provide additional, and probably the best, amenity in terms of solar access of any of the communal open spaces on the site and do not create unacceptable amenity impacts by reason of their placement, or their height, being central to the site and away from adjoining development.
7. The Court in this situation would therefore be satisfied that the request adequately addresses the required matters and that there are sufficient environmental planning grounds to support the breaches, namely in the provision of additional high quality communal open space, with the breaches in the public interest because they are consistent with the objectives of both the zone and the height control.
8. In terms of further minimising overshadowing or visual impacts to Green Square School, Mr To submitted that rooftop elements of Building C could be readily consolidated away from the common boundary. The height of Building C was otherwise largely as approved in the Concept consent.
9. Mr Clay submitted that, without being able to assess what was now suggested, the extent of changes to the overshadowing of the school was unknown.
10. Ms Robinson was also critical that the request did not address all of the height exceedances as it did not deal with the rooftop clerestory windows. Mr To stated that they were shown in diagrammatic form in the plan reproduced in the cl 4.6 request which showed the overall exceedances. However, Ms Robinson claimed they were not labelled and there was no text regarding them.
11. She accepted that the use of the roof for communal open space would offer a high amenity for future residents, and was a good location for such a use, but she argued that it did not have to be over 22m to deliver that amenity. She did accept the location of the non-compliant structures on Buildings A and B were generally centralised, other than the pergola, and these structures would not have unreasonable adverse impacts for neighbours.
12. However, an issue for her was that the DCP contemplates 6 storeys on the site and most of the buildings around it are 6 storeys. The 6 storey standard was framed generally following the guidance of the ADG based on floor to floor heights, the need for some space at the top of a building and more space at the bottom, leading to the height standard. In this instance, there are buildings pushed down below existing ground level and popping up above the height standard to 'slip in' an extra (seventh) storey. The cause of the height non-compliance was therefore more complex than saying that it was due to providing a roof terrace.
13. Mr To submitted that it was a roof terrace in a development form that seeks to obtain the FSR ratio envisaged by the LEP. However, Ms Robinson maintained that, realising the maximum FSR using the design excellence bonus, had resulted in the insertion of an extra level above that contemplated in the DCP, pushing the building over 22m.
14. She accepted that, if a design bonus was applied, it may mean going beyond 6 storeys. However, the more relevant test is the delivery of design excellence to receive the design excellence bonus in the first place.
15. Mr Sutherland argued that the 6 storey control in the DCP is specifically in relation to streetscape and the development has a 6 storey street wall height which is what will be perceived and understood from Botany Road. The Concept consent plans also provide for 7 storeys for the remainder of the site and show rooftop communal open space, albeit at the front of Building A. In his view, it is a less desirable outcome to have it at the front of Building A adjoining the noisy environment of Botany Road. It is a better outcome to have it at the rear of Building A and on Building B. Further, the Council had supported height variations on other sites to accommodate rooftop terraces.
16. Ms Robinson was critical of the examples that Mr Sutherland provided which were not within the context of the site, which includes the close proximity of developments to the north and east, and to the school which is a heritage item. She noted the recent development adjoining at 233-235 Botany Road, which Mr Sutherland had been involved in, was not cited in the request. This was, presumably, because it has a rooftop terrace immediately adjoining Botany Road and which was able to be accommodated within the 22m height limit.
17. She also argued that the height did not meet the standard's objective of achieving an appropriate height transition between new development and heritage items. The request argues that Building C delivers a transition to the heritage item. In her view, it does not as the increase in bulk from the rooftop structures of Building C diminishes its relationship to the heritage item and there was no shadow diagram which showed the additional shadow cast by the proposed development compared with the Concept consent.
18. Mr To submitted that, as it presents to the school, Building C is for all intents and purposes compliant with the height. Ms Robinson did not disagree and also accepted that, whilst the proposed height was higher than the approved Concept plans, as the Concept MA was a modification application, the cl 4.6 test did not apply.

Subterranean apartments in Building C

1. The Council contended that replacing the basement car parking levels in Building C with apartments, and excavating to lower the building, resulted in subterranean apartments with poor amenity being some 5.65m below ground level. The courtyards of these apartments on the south side of the building would also be below natural ground level. They would have a poor outlook to boundary retaining walls and limited access to light. Ms Robinson was concerned with the multiple stepping of the retaining walls and the value of the planting that could be accommodated in the narrow planters proposed. It was the depth of excavation that necessitated the tall retaining walls.
2. However, the applicant contended that these apartments were 2 storey and only bedrooms were proposed at the lower level with upper level living rooms facing north. Mr Sutherland argued that these bedrooms and courtyards would enjoy a high degree of privacy and have an outlook to planters and the situation is essentially created already by the approved concept plans which contemplated some residential use below ground level. The Design DA embraces that issue and deals with it by having 2 storey apartments and this design was a sensible response to a site situation that currently exists.
3. Ms Robinson disputed this. Her interpretation of the Concept consent plans was that the amount of residential that was subterranean is very small and, as it is a concept design, the retaining walls are not shown, but any required on the southern boundary would be much more modest than the retaining walls that are shown in the Design DA. She therefore did not agree that the degree of subterranean apartments proposed was consistent with what was contemplated in the Concept consent.

Setbacks to the eastern (rear) boundary

1. The Council raised a concern that the setbacks to the eastern boundary required by the Concept consent were not met, with 'pop out' louvred privacy screens proposed to some windows within the setback area.
2. Specifically, Ms Ch'ng noted that the setback in the Concept consent is 3m and argued that all parts of the eastern elevation of Building B encroach into that setback area due to these screens. As no window schedule had been provided it was difficult to ascertain if these windows would receive adequate light or ventilation given the proposed louvres, albeit she deferred to the ventilation experts to address her ventilation concern.
3. Mr Sutherland agreed that some areas encroach by up to 750mm but argued that there were small increases to the setback in other locations. Further, the acoustic experts had been involved in the design of the screens so ventilation would not be an issue.
4. Mr To submitted that the setbacks, in substance, adopt what the Concept plans thought was appropriate; a blank end wall condition with the wall generally setback 3m from the boundary. Setbacks that are a little greater or a little less relative to the concept envelope are of little consequence here particularly when the site view indicated that there are blank end walls effectively repeated on the building on the adjoining site at its western end.

Pedestrian access and viewing of the loading area

1. The Council raised a concern with the pedestrian access converging with service and waste vehicle access to the loading 'lane' area at the rear of Building A, and the amenity for residents and visitors to the development having to view this loading area. They did not consider what was proposed to be an appropriate announcement when entering a residential development.
2. In an endeavour to resolve this concern, the amended application included a gate at the southern entry to this area. However, the Council experts considered that the design of the gate would still allow undesirable views into the loading area.
3. They argued that this is the main entrance into the development and a person's arrival experience will be diminished if they are walking past the loading area and the garbage zone and looking up and seeing the roof of a loading area. It would be a more pleasant arrival experience if a pedestrian was not aware of what was happening behind the gate. Instead, pedestrians would see into a cavernous space including to the underside of the covering of it (the ceiling) as the gate only goes so high.
4. Mr To submitted this could be resolved by fixing a panel to the top section of the gate but Mr Ch'ng's concern was that, if this occurred, the windows in the side wall of the adjoining apartments could be denied light and/or air.
5. Mr Sutherland did not share Ms Ch'ng's concerns. He argued that the loading area, when not being used only twice a week by trucks for waste collection or by occasional service trucks, would be a through site link which the DCP encourages. The space would be more attractive than a traditional loading dock or service area with a high quality brick finish. Treatment of the ceiling could be specified by way of condition and there is also a planter in that space.
6. Ms Ch'ng argued any design or treatment needed to be fit for purpose, so it needed to be easy to maintain, wear well and be able to disguise any exhaust, dirt or soot.
7. Ms Robinson had looked at other similar loading and service lanes and areas and noticed vents and sprinklers were common and could be viewed behind gates. Her preference was not to see into the space at all.
8. Aligned to the issue of the pedestrian experience on entering the site was the main pedestrian entrance to the residential development itself.
9. Mr Sutherland indicated that the pedestrian entry had been improved greatly from what was originally proposed, and could be further improved. The entry portico was now to be partially enclosed.
10. The Council's experts noted that the main entry portico had sliding glass doors but it was still open to the service access from Botany Road. After leaving the street, pedestrians remain in a vehicular movement area exposed to both the noise and the exhaust of passing vehicles. There would also be floor space implications from the area being fully enclosed and the foyer becoming an internal space.
11. However, they accepted that what was proposed was clearly defined and visible from Botany Road, well lit, protected from weather, would allow passive surveillance of public and communal areas, and would enable wayfinding to access all 3 buildings. Whilst accepting that the noise from Botany Road would be reduced by the sliding doors, concern remained however, that there would still be noise given it was open to the side.
12. Mr Sutherland indicated that he had shared some of the Council's concerns with the original entry area which included adjoining shared pedestrian and vehicle areas. Whilst not concerned about this from a safety point of view, his key issue was the lack of legibility of the pedestrian entry. During joint conferencing, he agreed that the arrangements were substandard and unacceptable and that a glass, clearly visible pedestrian-exclusive entry should be provided. This was done and now the only crossing of the pedestrian space is when trucks access the loading area whilst all other vehicles in the development will access the development from a basement driveway at the southern front edge of the site. However, it was not possible without major design changes and excessive ramp lengths for trucks to also access the basement. Accordingly, the loading area as now proposed is the best outcome that can be achieved on this site.
13. Ms Robinson agreed that the amendments made through joint conferencing to the driveway arrangement had addressed most of the Council's concerns. However, the issues with the entry foyer arrangements and the viewing of the loading area remained.

Central courtyard and communal open space

1. The applicant advised that the rooftop communal open space could be rationalised to address possible impacts raised by the residents of 8 Allen Street and to ensure the requirements of the ventilation experts for 2m clear distances between clerestory windows and rooftop structures could be achieved.
2. The Council however, raised a concern with the privacy impacts from residents using the elevated central courtyard area overlooking the south facing rooms and private courtyards of a number of apartments at the rear of Building A and in Building B.
3. The proposed central courtyard is for use by residents of all 3 buildings and was at the same level as the ground level of Building C. As a consequence, it is 1.1m higher than the ground level of Buildings A and B.
4. The experts gave evidence as to whether the proposed screen planting, or alternative landscaping treatments, could address this privacy concern. However, none of the experts were landscape architects.
5. Ms Robinson said the issue was the need to bridge the ground level at Building C and the ground level of Buildings A and B whilst still retaining a usable central courtyard. Part of the reason for having the elevated courtyard was to get some soil depth for canopy trees and this area should not be compromised with excessive retaining walls and planters.
6. Mr Sutherland argued that the relationship levels between Buildings A/B and C were similar to that in the Concept consent and that the development has more than 45% communal open space which is well in excess of the minimum communal open space requirements. Therefore, the courtyard could comprise a mixture of planted areas, lawn, planters, hedges and trees. An adequate solution could be found to deal with the privacy issues.
7. In this regard, Mr Sutherland indicated that he had shared the Council's initial concern in relation to the original Design DA plans in terms of the central courtyard and, as a result, requested that the architect lower the pathway levels through that central spine and create a hedge arrangement to achieve a satisfactory privacy outcome. He also argued that privacy needs to be considered within the context of a relatively high density RFB development in which there are apartments at multiple levels which will afford a view into some of the apartments even with trees in the central courtyard. Within the context of the site, he considered what was proposed to be an entirely acceptable design solution to privacy albeit he did accept that, without appropriate landscaping, there would be some privacy impacts.
8. Ms Robinson disagreed that, simply because it was a high density area, people could be overlooked given it was the primary living space of the apartments in question.
9. One design solution suggested by the applicant would be to lower the central courtyard level. However, if this was undertaken, the Council's experts were concerned that there would be inadequate soil depth for deep soil landscaping. Mr Clay also objected to the evidence straying into possible design solutions and redesigns.

Inadequate information and remaining contentions

1. Mr Clay raised issues of inconsistency between the BASIX certificate and the amended application and noted the jurisdictional requirement for a BASIX certificate for the development as now proposed. Further, the BASIX certificate that was relied upon did not meet the water and energy targets required by the Concept consent. He also noted that Mr Glanville had sought to rely on the certificate that was provided as a means of ensuring adequate ventilation.
2. Mr To disputed that the BASIX certificate submitted would not satisfy the pre-condition to granting of consent. It was not uncommon for such certificates to be updated in response to amendments to the application.
3. Mr Clay also raised concerns with rights of access should the lots be subdivided in the future submitting that this had not been adequately resolved. However, in responding to this criticism, Mr To took the Court to the proposed subdivision plan at Exhibit L to demonstrate provision for rights of access or easements to access the shared services, communal open space, bin rooms, basement car parks, and the like. Further, there were several ways to ensure legal rights of access in the future.
4. Finally, Mr Clay submitted that one cannot go to every issue with a tendency to focus in cases such as these on the big ticket items, as had been done. However, there were a number of other concerns not addressed, such as the permeability and legibility of internal access and how residents of Building C reasonably access parking, bins and communal facilities in the other 2 buildings. Further, there were no window schedules or details of materials provided. Yet this is a development where design excellence is claimed. These and other matters, such as the adequacy of landscaping and how best to address overlooking, may be considered relatively minor, and of themselves not determinative. However, they are evidence that, because of the failure to follow the guide in the Concept consent, there is a failure to achieve appropriate relationships as well as design excellence.

Findings

1. There are two appeals before the Court that need to be determined, with the focus of the hearing on the development outcomes arising from the Design DA and the jurisdictional implications in terms of the Concept MA.
2. I will deal firstly with the Design DA.
3. For the reasons which follow, the Design DA fails several jurisdictional tests and therefore consent cannot be granted to it. The Design DA is refused accordingly.
4. Firstly, I am not satisfied that the design achieves design excellence as required by cl 6.21 of the LEP and therefore consent cannot be granted.
5. Secondly, and consequently, the bonus 10% FSR does not apply. Compliance with the FSR is a pre-condition to consent. As compliance is not achieved without the 'bonus FSR' included, consent cannot be granted.
6. Thirdly, the design is inconsistent with the Concept consent and therefore consent cannot be granted under s 4.24 of the EPA Act without approval to modify that consent, namely without granting consent to the Concept MA, which I do not consider is warranted.
7. Finally, I am not satisfied that the cl 4.6 tests are met and that exceedances of the height standard are justified. Accordingly, consent cannot be granted.
8. Although arguably a technicality, as it could be readily overcome if all other issues were resolved, an updated compliant BASIX certificate reflecting the amended plans was also not provided, and is a further pre-condition to the granting of consent.
9. As the Design DA cannot be approved, there is no basis to amend the Concept consent to support the design the subject of the Design DA, even if the Design DA could provide such a basis. The Concept MA is therefore also refused.
10. My findings are for the following reasons.
11. In terms of meeting the design excellence requirements of the LEP, the applicant argued the site is constrained by the proximity and height of adjoining development, including the existence of the heritage school to the south. Yet the Design DA still sought to maximise or exceed core controls, namely FSR and height, rather than recognising these constraints may mean that the approved concept building envelopes could not be 'filled'. Instead, the building envelopes are sought to be exceeded.
12. The development proposes not only the maximum permissible FSR for the site under the LEP but also to have bonus FSR arising from meeting the design excellence provisions. In seeking to, in essence, maximise the FSR, the height is further exceeded, ADG non-compliances result in terms of solar access and natural cross ventilation minimum requirements, and a number of other amenity issues arise, such as potential privacy impacts associated with the central courtyard, use of the rooftop terrace, and the proposed eastern setback.
13. Having regard to the specific requirements of cl 6.21, I am not satisfied that design excellence is achieved in terms of: the proposed additional bulk and height (and additional residential storey) adjoining the heritage listed school, including potential additional overshadowing; the design maximising sustainability in terms of solar access to proposed apartments; the internal pedestrian network being legible; or the landscaping of the central courtyard being appropriately resolved if residents' privacy is to be achieved.
14. Some of the amenity issues raised by the Council's experts are a direct result of the application not reflecting key features of the Concept consent. One of these is replacing the basement or below ground parking levels of Building C with apartments close to sensitive boundaries resulting in subterranean apartments with rooms of less than optimal amenity and resulting in level and privacy issues associated with the central courtyard.
15. The applicant sought to amend conditions of the Concept consent, primarily because they set specific controls for the detailed design. However, unlike the situation in Priansa, those controls are particularly important given the constraints that do exist and draw attention to the detailed design requirements that need to be addressed in a design DA. The Concept MA sought to amend these conditions because the detailed design subsequently did not want to have to comply with them.
16. As was the case with the Council's design experts, I have difficulty in accepting that a development can achieve design excellence where two of the minimum ADG requirements to achieve amenity for future residents, namely solar access and natural cross ventilation, are not achieved, particularly given that this is a specific requirement of the Concept consent. In this regard, I agree with Mr Clay that "near enough is not good enough" when design excellence is the required outcome.
17. I do accept that the site is constrained by its proximity to Botany Road and therefore achieving compliance with natural cross ventilation may be difficult. That issue of itself would not have been determinative in dismissing the appeals. Having said that, I note that the ventilation experts agreed improved natural cross ventilation could be achieved with relatively minor design changes (such as to windows and with increased clearance to rooftop structures).
18. However, I do not accept that achieving solar access to the prescribed minimum proportion of apartments set by the ADG should not be met, given the orientation of the site and that this is one of the specific requirements of a condition of the Concept consent. I accept the Council's evidence that this could likely be achieved by increasing the size of apartments and the number of cross through and 2 storey apartments.
19. I also do not accept the argument of the applicant's experts that the ADG's 2 hour 70% solar access compliance requirement is to either living areas or private open space, rather than to both. This has not been successfully argued before the Court in any evidence I was provided with, and it is not the interpretation experts before me in this Court have ever advanced. The fact that the minimum 70% of apartments receiving 2 hours of solar access in midwinter to both living rooms and private open spaces is not achieved, even only counting either area, is further evidence that there is inadequate amenity provided and a poor amenity outcome.
20. I also had difficulty accepting Mr King's solar access evidence, in particular that it was unreasonable for this site to achieve ADG solar access compliance. The site's context is not so different from other sites in the City of Sydney, the development of which have come before this Court and been assessed under the ADG.
21. Even if Mr King is correct, including in his interpretation of how to alternatively determine adequate solar access, the fact remains that the Concept consent specifically requires ADG solar access determination and compliance. There was also no dispute from the applicant's experts that amending the design, such as by providing larger or dual aspect apartments, would improve the number of apartments receiving solar access.
22. As a starting point to achieving design excellence, the Design DA has to have regard to the elements of the competitive winning design that the selection Panel identified needed to be addressed, whilst retaining the fundamental features of that winning design.
23. In this regard, I accept the winning design was the starting point. However, I do not accept that the majority of the issues identified with it by the selection Panel have been adequately addressed in the Design DA.
24. Firstly, the interface between private and communal open space throughout the site was not sufficiently resolved. Secondly, whilst pedestrian/vehicular conflicts were largely resolved (recognising the site's access constraints), pedestrian legibility throughout the site remained a contention. Thirdly, the resident/visitor pedestrian arrival experience, and specifically the interface with the garbage area, remained unresolved. Fourthly, the design did not improve pollution issues or maximise natural ventilation in accordance with the requirements of the ADG, and it was not evident that the apartment sizes and layouts had been reviewed to ensure the apartments achieved good amenity and met the requirements of the ADG in terms of cross ventilation and solar access. Finally, the breach of the approved envelope height was noted, with advice provided that compliance should be addressed during the detailed design. Rather than achieving this compliance, the Design DA seeks further height breaches.
25. For related reasons, and having regard to the tests required as outlined in Initial Action at cl 4.6 of the LEP, I am not satisfied that these tests have been met. In particular, that the cl 4.6 written request demonstrates that compliance with the height is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify the height breaches, or that the development is in the public interest having regard to the objectives of the height standard.
26. The Concept consent already generously allows some height exceedances for lift overruns recognising the site constraints and also has rooftop communal open space but contained within the height control. I therefore do not accept that providing and improving such rooftop space constitutes sufficient grounds for the height exceedances sought through the detailed design process, as the request and the applicant largely rely upon.
27. In this regard, the applicant and the cl 4.6 request place much emphasis on the height breaches to Buildings A and B being required as compliance would lead to a less satisfactory outcome, requiring the removal of the rooftop communal open space and reducing the amenity to occupants of the development accordingly. This is because the ground area is heavily overshadowed by surrounding buildings such that it is necessary to locate the open space on the roof in order to achieve good solar access.
28. However, rooftop communal open space is already supported for this reason in the Concept consent and, as Ms Robinson indicated, does not need to breach the height control to be provided or to have good solar access. Further, whilst there were examples provided of where height breaches have been supported for this purpose, the most relevant and recent example is of the adjoining development at 233-235 Botany Road where such rooftop open space is provided but is height compliant.
29. It is apparent that the Council, and the former applicant, considered the constraints and specific design parameters that had to be addressed in the detailed design in establishing the building envelopes, height, uses and conditions embodied in the Concept consent. This is evident in the approved concept plans, in the specific building envelopes including nominated setbacks and height RLs, and in a number of the specific conditions, including those sought to be modified, even if the basis for the s 34 agreement, on which the Court Concept consent is based, is not documented.
30. Therefore, the conditions or constraints of the site claimed in the request as supporting the breaches are no different than those evident when the Concept consent was issued which established the height and building envelopes required to be met.
31. The request also does not detail or address all of the proposed height breaches, namely the clerestory windows, nor outline why the windows are required in the locations proposed.
32. Further, whilst I accept that the development meets the objectives of the zone, largely for the reasons outlined in the request as summarised at [161], not all of the objectives of the height standard are met and therefore approval to the development would not be in the public interest.
33. In this regard, I agree with Ms Robinson that the proposed height of Building C does not meet the objective of achieving an appropriate height transition between new development and heritage items. Building C does not deliver a transition to the school which is a heritage item. Relative to the approved concept height, it increases the bulk and height of the rooftop structures of Building C rather than reducing the height notwithstanding its proximity to the heritage item.
34. Whilst I accept the majority of the height of Building C accords with the Concept consent Building C envelope, this does not mean the detailed design does not need to demonstrate how the objectives of the standard are met, particularly if the height is to be further breached. Instead however, the cl 4.6 request indicates the impacts of Building C can be partially offset by the school's landscaping to soften views of the development from the school buildings. However, this is not a basis to support a finding that Building C provides an appropriate transition in height to the much lower heritage item to its south.
35. Further, there was no evidence to confirm there would not be increased overshadowing of the school site as a consequence of the height breach. The offer by the applicant for the plans to be further modified to consolidate the structures that breach the height away from the school boundary to ensure no further overshadowing demonstrates that the impact of the height of the school was not adequately considered at the outset.
36. Providing an additional level of residential development in Building C contributes to its height breach and results in subterranean apartments. I do not accept the claim in the request that this is a better outcome from developing the site to the height proposed rather than to the height the Concept consent, and site control, allows.
37. In summary, whilst modifying the Concept MA does not require a cl 4.6 to be upheld, breaching the height through the Design DA does and I am not satisfied that the request, or the development as proposed in the DA, satisfies the important height standard objective of responding to heritage items, particularly given the sensitive use to which the heritage item is put. The Concept consent is already generous in allowing the maximum height to be achieved for Building C and with a slight exceedance for the lift overrun. No rooftop open space is provided in this location to support further exceedance, even if that was an environmental planning ground, and no better outcome for and from development results from what is proposed.
38. It is the case that the Concept consent already facilitates height breaches on the site. However, this is a concession to the site constraints and offers an opportunity to maximise the height available on the site. It is not an environmental planning ground, as claimed in the request, to seek even greater exceedances.
39. For all of these reasons, I am also not satisfied that the proposed height is appropriate to the condition of the site and its context, another objective of the standard therefore not met.
40. Given my findings that pre-conditions to the granting of consent to the Design DA are not met, I do not need to refer in any detail to the other amenity issues that arose in that appeal, other to the extent that they reinforce my finding that the design does not demonstrate design excellence.
41. In this regard, I agree with Mr Clay that, whilst individually a number of the smaller design issues of concern to the Council may not of themselves be grounds for refusal, cumulatively they contribute to the development not exhibiting design excellence.
42. As I have indicated, if design excellence is not achieved, there is no entitlement to an additional 10% FSR and consent cannot be granted as there is no request under cl 4.6 of the LEP to allow the exceedance of the FSR sought. Had design excellence been demonstrated, and the additional bonus FSR applied, I accept that any minor non-compliances with FSR could have been readily rectified with minor design changes, as the applicant proposed.
43. In terms of the Concept MA, and the conditions of the Concept consent sought to be amended, I generally agree with applicant that there is usually little if any basis for conditions which require compliance with planning controls and documents, particularly where compliance is self-evident or flexibility to comply is available.
44. However, in this instance, and unlike the situation in Priansa, as the Council argued the intent of conditions of the Concept consent, such as condition 10, is to alert applicants that, whilst the envelopes have been approved, there are design responses that need to be focused on, noting the site's constraints. In particular, there is a need for compliance with SEPP 65 and the ADG particularly in terms of cross ventilation and solar access; two of the key ADG criteria to achieve amenity for future occupants but which were not met.
45. That is a much different context to the situation of the conditions in Priansa. Further, in Priansa, the Concept consent did not replace a site-specific DCP.
46. The conditions of the Concept consent are deliberately constraining factors to development noting the approved concept plans already facilitate some leeway with compliance with planning controls, such as height.
47. Should design excellence be achieved on the site, and amenity issues addressed, it is doubtful that strict compliance with the application of the various general planning controls referenced would be a basis for refusal. However, on the basis of the applications before the Court, there is insufficient justification to amend any of the conditions of the Concept consent or the consent itself.
48. In this regard, it is not accepted that it is appropriate to amend a concept consent to reflect the details of a detailed design, unless there is good reason to do so particularly if it is the case, as in this instance, that the consent replaces the equivalent of a site-specific DCP. It should not be responsive to an individual detailed design. Rather, if an individual design that follows a concept consent is determined to achieve design excellence it would either be not inconsistent with that concept consent or such a consent should be replaced with the new parameters that have led to the design excellence outcome. Otherwise, the detailed design may not be taken up and would mean a concept consent would have to change in response to each detailed design application lodged. The reverse is the intent.
49. In my view, there is sufficient flexibility in the concept approved envelopes, and in the Concept consent conditions, to facilitate a development on the site designed in accordance with the controls, including one which demonstrates design excellence as the LEP requires.
50. The starting point is to comply with the requirements of the Panel in developing the winning competitive design. Conversely, however, the applicant sought to challenge those requirements and the terms of the Concept consent set for the detailed design process.
51. The outcome of these appeals is unfortunate given the time and effort of both the parties and the Court to try and resolve the design issues associated with the development of this site. However, it is not the Court's role, nor the Council's, to facilitate iterative amendments by an applicant to a detailed design through a hearing process in order to address the individual issues raised by the Council. One adjournment was allowed in anticipation that an agreed outcome may be achieved between the parties but all this demonstrated was that, in resolving one design issue of concern to the Council, other issues arose.
52. There was simply too little time and too many amendments required in order for consent to reasonably be granted to the Design DA. Through this appeals process, some guidance has been given by the Council, and their experts, to a form of development that may be acceptable on the site and it appears that there are various design solutions to achieve this outcome, which the applicant is already aware of and sought to demonstrate by further amendments to the plans before the Court. However, leave was not granted to these plans given their late provision and the consequential ramifications in terms of providing procedural fairness to the Council and having regard to the Court's timeframe, practices and procedures.

Orders

1. The orders of the Court are: 1. Leave is granted for the applicant to rely on amended plans. 2. The applicant is to pay the respondent's costs thrown away as agreed or assessed as a result of amending the applications pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 3. The clause 4.6 request to exceed the height standard on the site is not upheld. 4. The appeals are dismissed. 5. Applications comprising: concept modification application No. D/2015/1358/B to modify the Stage 1 concept consent for a mixed use development; and development application No. D/2018/354 for 3 buildings within the approved Stage 1 building envelopes comprising Stage 2 of the development; at 219-231 Botany Road, Waterloo, are refused. 6. The exhibits are returned, except Exhibits 1, 2, A, B, C and D.

Amendments 30 July 2019 - Pursuant to UCPR r 36.17, by the consent of the parties, amend orders of 19 July 2019 in the following manner:

1. Replace the reference number for the concept modification application in Order (5) of the judgment, currently referred to as "D/2018/354/B", with the correct reference, being "D/2015/1358/B".
2. Replace the reference number for the concept modification application in [4] of the judgment, currently referred to as "D/2018/354/B", with the correct reference, being "D/2015/1358/B".

As a consequence, see final orders at [261]. 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: 30 July 2019