McClenahan v North Sydney Council

CASES CITED: Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46

APPLICANT Mr R Lancaster, barrister SOLICITORS Dibbs Abbott Stillmam LEGAL REPRESENTATIVES: RESPONDENT Ms H Irish, barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

• 3 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10552 of 2003 John McClenahan and Tomoko McClenahan v North Sydney Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by North Sydney Council (the council) of Development Application No 85/03 for alterations and additions to an existing dwelling to provide for three apartments at 57 Cremorne Road Cremorne Point (the site).

The site 2 The site is Lot 10 in DP 808792. It has a frontage of 21.34 metres to Cremorne Road and Cremorne Foreshore Reserve at the rear and side boundaries of 60.96 metres and 55.03 metres giving a total site area of 1255 square metres. The site has a fall of some 21 metres from Cremorne Road to Cremorne Foreshore Reserve. Views of Mosman Bay are obtained from the site in an easterly direction.

3 The site is occupied by a two-storey dwelling house and single storey studio outbuilding located at the middle of the site, with a double garage and elevated lawn area at the Cremorne Road frontage.

4 The locality is characterised by a mixture of mainly early 20th century residential development of varying types and building styles and some Inter-war residential flat buildings. The proposal 5 The proposed development provides for alterations and additions to the existing dwelling house and outbuildings to provide for an apartment building containing three separate apartments with associated pool, underground car parking served by a car lift and landscaping. Apartment 1 is at the lowest level. It will occupy the existing storeroom area and additional area created by excavation under the dwelling. Apartment 2 will occupy the existing ground floor area of the dwelling and Apartment 3 will occupy the existing first floor area of the dwelling and additional floor area in the roof space.

Relevant planning controls 6 The site is within the Residential G zone under North Sydney Local Environmental Plan 2001 (LEP 2001). The proposed use is permissible with consent. Clause 14(2) provides that consent must not be granted to development that is inconsistent with the specific aims of this plan, the objectives of the zone and the objectives of controls. Clause 17 provides requirements for building height, cl 26 provides requirements for apartment building revision or adaption and cl 39 provides requirements for excavation of land. 7 Part 4 provides heritage provisions and is relevant as the land is identified as a heritage item in Schedule 3 of LEP 2001. The Inventory Sheet provides following description of the dwelling: Two-storey Federation Arts and Crafts house, of roughcast rendered brick with the gable slate roof. Entry is to upper level through gable roofed projecting entry bay with moulded blind semi-circular fanlight above the entry door. Features are leadlight windows, 2-storey bay windows to the south and east elevations, bracketed window hoods, exposed rafters to eaves.

8 The Inventory Sheet identifies the Statement of Significance as: Fine residence which relates well to it's site and it's aspect. Characteristic form of development for the vicinity.

9 North Sydney Council Development Control Plan 2002 (DCP 2002) also applies. Section 7.2a provides requirements for topography, Sec 8.8 provides requirements for form, massing and scale, windows and doors, design details and car parking. Character Statements are provided for individual areas within the municipality with Sec 8.2 providing details on the Cremorne Point Conservation Area. The issues 10 The council filed an amended Statement of Issues containing 10 issues. Following the submission of further information, the issues relating to the adequacy of the proposed excavation (Issue 2), fire safety requirements (Issue 3), the design of the front fence (Issue 4), car park design (Issue 9) and landscaping (Issue 10) were not pressed by the council. The remaining issues can be grouped into the following main areas:

1. whether the proposal will unacceptably impact on the heritage significance of the item and the conservation area, particularly in relation to the inclusion of an additional gable roof, the removal of existing ceilings and floorboards, the removal of the existing staircase, the use of the entrance portico and hallway and the alterations to the existing garage (Issue 1),
2. whether the State Environmental Planning Policy No 1- Development Standards (SEPP 1) objection to the height development standard is well founded (Issues 5 and 6),
3. whether the proposed excavation is excessive (Issue 7),
4. whether the proposed lower level apartment provides an acceptable level of amenity in terms of natural light and air (Issue 8).

Heritage impact 11 Mr John Oultram, an architect and heritage consultant, provided evidence for the applicant and Ms Lucinda Varley, an officer of the council who provides landscape and heritage conservation advice provided evidence for the council.

The inclusion of an additional gable 12 Mr Oultram states that the additional gable provides light and ventilation to that part of Apartment 3 within the roof space of the dwelling. It is well designed and scaled and will complement the existing roof form. The windows are sensibly located and avoid the introduction of dormers and roof lights in other areas of the roof. The views to the house are very limited from the east and the new windows are not prominent. Considering the house has been heavily altered from the original design with the replacement of the original verandah and a two storey addition to the south, the addition is sympathetic and in scale with the roof form.

13 Ms Varley states that the roof addition will be unacceptably visible from within the conservation area. As the dwelling is one of three other key built features (being 53, 55, and 59 Cremorne Road), the roof addition when viewed from the east would detract from the significance of this group of Federation dwellings. The roof addition will also detract from the house designed by note worthy architect E R Orchard. Ms Varley states that the addition is non-compliant with Sec 8.8 of DCP 2002 and cl 44 of LEP 2001.

14 DCP 2002 provides that massing, form and scale of heritage items and buildings in conservation areas should be maintained and that alterations and additions are to be consistent with the original building character (Sec 8.8 h). Alterations should be located away from the principal elevations of the building and behind and below the principle ridgeline (Sec 8.8 h i). Upper level additions within the existing roof space should be accommodated within the existing roof space or below the line of the main roof of the existing building. The additions should not be visible from the street (Sec 8.8 h ix). Windows and doors should respect the size, proportions and position of existing openings (Sec 8.8 l iv).

15 The additional gable is located in the eastern elevation that overlooks Mosman Bay. It has been designed as an extension of the existing gable but set back an additional 600 mm. The height of the additional gable does not impact on the overall height of the dwelling. Apartment 3 occupies the roof space (and makes use of the additional gable) is not readily noticeable from Cremorne Road.

16 With the benefit of the view from the site, adjoining properties and the surrounding area including from the opposite side of Mosman Bay, I am satisfied the additional gable is acceptable when considered in a heritage context. While the proposal will change the original roof form, the change is not significant and the original roof form can still be easily understood. I agree with Mr Oulton that it is sensitively designed and will complement the existing roof form even if deemed to be the principal elevation of the building. The location of the windows are not overly noticeable in the elevation and adequately respect the size, proportions and position of existing openings.

17 I am also satisfied that the alterations and additions are consistent with the original building character. The dwelling was constructed around 1915 and alterations in 1939 included the replacement of the eastern verandah with an enclosed sunroom. In 1964 and 1965 a large two-storey extension was added to the north side of the dwelling. The external alterations also provided for significant internal alterations. Again, and accepting that the proposal will change the original roof form, the additional gable does not affect the original building character to the extent that it would warrant the refusal of the development application.

18 In coming to this conclusion I have given consideration to the northerly additions to the dwelling that changed the original building form. I have also taken into consideration the removal of the unsympathetic enclosed sunroom and the reinstatement of the verandah to a form similar to that of the original verandah. Ms Varley stated that the removal of the unsympathetic enclosed sunroom was not a matter that she took into consideration, as the council "doesn't do trades". In my view, it would be unreasonable to determine whether a development would adversely affect the heritage significance of a heritage item and conservation area based on one isolated element of a proposal. Clause 44(d) requires a consideration of "that development". This must mean the development as a whole and any consideration must include the positive aspects of the development as well as the negative aspects. In this case, I agree with Mr Oulton that the positive aspects of the development, being principally the removal of the unsympathetic enclosed sunroom, significantly outweigh the negative aspects of the change in the roof form by the additional gable.

Consequently and in consideration of cl 44(d), I find that the development will not adversely affect the heritage significance of the heritage item. 19 Ms Varley also raised the ability to see the additional gable from the different parts of the conservation area. She also expressed concerned over the relationship with adjoining properties being 53, 55, and 59 Cremorne Road. Numbers 53 and 55 Cremorne Road are identified heritage items of local significance in Schedule 3 of LEP 2001. Number 59 Cremorne Road is identified as a contributory item in Schedule 4 of LEP 2001.

20 For reasons mentioned in preceding paragraphs (see pars 16 to 18) I am satisfied that the development will not adversely affect the heritage significance of the conservation area when viewed from various points around the conservation area. I also agree with Mr Oulton that there is little significance in the grouping of the site with 53, 55, and 59 Cremorne Road. The heritage significance of 55 Cremorne Rd. has been largely lost with the large unsympathetic additions to the dwelling sometime ago. Number 59 Cremorne Road is a contributory item only and has had recent additions that further diminish its individual significance. Any association with 53 Cremorne Road and the site is remote because of the loss of the visual link brought about by the unsympathetic dwelling at 55 Cremorne Road. 21 Consequently and in consideration of cl 44(d), I find that the development will not adversely affect the conservation area.

The removal of existing ceilings and floorboards 22 Mr Oultram states that the ceilings of Apartment 2 are to be lowered for the attic conversion to 2800 mm. The new floors are to be constructed of concrete to provide sound attenuation and fire safety between the floors. As the patterned ceilings are on battens, Mr Oultram states they can be removed and replaced following the installation of the new concrete floors. Similarly, the original floorboards can be removed and replaced.

23 Ms Varley states that the lowering of the ceilings will alter the character of the bedrooms by irreversibly altering their spatial configuration and increasing their sense of containment. She questions the ability to remove and replace the ceilings without damage. 24 DCP 2002 provides that significant internal features should be maintained in their original form (Sec 8.8 p). Internal alterations should be located away from rooms that have intact decorative features (Sec 8.8 p i).

25 I accept the evidence of Mr Oultram that the interior of the dwelling is not so significant as to warrant retention in its original form. The interior has no specific listing under LEP 2001. While the patterned ceilings are attractive features of the dwelling, I am not convinced that they could be defined as "significant internal features". In any event, the room layouts are to be retained in the original form and the only significant variation to the rooms is the reduced volume. As a more than adequate ceiling height is still to be retained I accept that the character of the bedrooms is not unacceptably impacted upon. I also accept that the assurance of Mr Oultram that with care, the patterned ceilings and flooring can be removed and replaced without damage. The removal of the existing staircase 26 The area currently occupied by the staircase is to be used as a kitchen for Apartment 2. Mr Oultram states that there has been no assessment of the stair against other examples of E R Orchards works. He states that the staircase is quite simple in detail and appears to have been altered by the removal of panelling. In his opinion, the proposed development relies on the stair removal for the conversion and the staircase is not significant enough to warrant retention. He notes that the salvaged fabric from the staircase is to be used in a new stair to the level above.

27 Ms Varley states that the stair is considered to be a fine example of E R Orchards work in the Arts and Craft style. The removal would take away from the significance of the stairwell space and the open light-filled void. The staircase assists in setting the quality, status and character of the dwelling and is a large, striking remnant decorative feature. 28 DCP 2002 provides that significant internal features should be maintained in their original form (Sec 8.8 p). Internal alterations should be located away from rooms that have intact decorative features (Sec 8.8 p i).

Bathrooms, kitchens and other services should be located where existing service rooms or ancillary spaces are located (Sec 8.8 p v). Original features should be reused rather than the removing or replicating these features (Sec 8.8 p viii). 29 In accepting that the staircase is a feature of the dwelling, I accept that the adaption of the dwelling to a more intense use (as permitted by the zoning of the site) may require the loss of some fabric. While the staircase is an attractive feature of the dwelling, I am not convinced that it could be defined as a "significant internal feature". The requirement that bathrooms, kitchens and other services should be located where existing service rooms or ancillary spaces are located is a laudable goal however the requirement may not always be possible to achieve because of the existing room layout of a building and the need to adapt the building to a more intense use. I am not convinced there are any significant adverse heritage impacts that flow from the removal of the staircase.

30 The association with E R Orchard was not challenged although the evidence did not suggest to me that the staircase was of such significance that it should be retained because of this association. In my view, this would not be a reason to require the retention of the staircase. I note that the reuse of original features is encouraged by Sec 8.8 p viii of DCP 2002. The use of the entrance portico and hallway 31 The entrance portico and hallway is to be incorporated into Apartment 2. Mr Oultram states that the entrance portico will remain a central circulation space off the entry hall and will provide access to the major rooms of the apartment. The hallway associated with the staircase will form part of the kitchen and for the reasons mentioned previously in relation to the removal of the staircase; there are valid reasons for its removal.

32 Ms Varley states that the relationship of the original entrance portico and its associated hall is lost due to the installation of the kitchen. The sense of the two-level void created by the passageway and staircase will also be lost as will the status of the hall as a significant open, light-filled two-level void defining a level of design status.

33 DCP 2002 provides that significant internal features should be maintained in their original form (Sec 8.8 p). Internal alterations should be located away from rooms that have intact decorative features (Sec 8.8 p i). Bathrooms, kitchens and other services should be located where existing service rooms or ancillary spaces are located (Sec 8.8 p v). 34 For similar reasons to those set out in par 29, the proposed use of the entrance portico and hallway is acceptable. The alterations to the existing garage 35 The proposal provides for the existing double garage to be reduced in size to a single garage. The modified garage is to be used as the entry point for the underground car park. Mr Oultram states that the reduction in size is acceptable as there is no evidence to suggest that the garage was designed by E R Orchard. The northern wall and wing walls will be retained and the garage rebuilt to a sympathetic Arts and Craft style single car width.

36 Ms Varley maintains that the garage is an original Arts and Craft style garage and was probably designed by E R Orchard. The partial demolition of the garage should not be permitted.

37 DCP 2002 provides that car parking structures should have no detrimental impact on the heritage significance of the building and the streetscape (Sec 8.8 r). No more than one half of the laneway frontage is to be occupied by any parking structure (Sec 8.8 r iv). Original garages with heritage or contributory items should be retained wherever possible (Sec 8.8 r viii).

38 With the benefit of the site view, I am satisfied that the proposed single garage will have no detrimental impact on the heritage significance of the building and the streetscape. In my view, the reduced size will be a less imposing structure in the streetscape, being located on the front property boundary. I also accept the conclusions of Mr Oultram on the uncertainty of the architect of the garage. There was no evidence presented to the Court to suggest that E R Orchard was the architect and as such its significance is questionable. 39 Overall, and having considered the relevant heritage requirements in LEP 2001 and DCP 2002 there are no heritage reasons why the proposal should be refused.

Height 40 Mr Neil Ingham, a town planner, provided evidence for the applicant and Mr Ian Pickles, also a town planner provided evidence for the council.

41 Clause 17(3) of LEP 2001 provides that a building must not be erected in a residential zone in excess of 8.5 metres in height. The existing dwelling has a height of 13.31 metres and a height of 13.36 metres with the proposed alterations and additions. Clause 26 provides requirements for apartment building revision or adaption although no specific numerical controls for height. 42 Mr Ingham and Mr Pickles disagreed on the appropriate means of assessing the height, i.e., cl 17(3) or cl 26 respectively however for caution I propose to consider the height in terms of cl 17(3). This requires an assessment of the applicants SEPP 1 objection.

43 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. Clause 17(1) provides building height objectives and cl 17(2) provides additional objectives for Cremorne Point. As I understand, Mr Pickles objection to the SEPP 1 objection was based solely on objective (f) in cl 17(1). This objective states: (f) prevent the excavation of sites for building works, other than for garages and car parking 44 The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state: 3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act .

45 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state: 5.The objects of this Act are: (a) to encourage - (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and coordination of the orderly and economic use and development of land . 46 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

47 The SEPP 1 objection addresses all the objectives in cl 17 however in response to objective (f), the SEPP 1 objection states that some excavation is to be carried out to the basement area of the existing dwelling to level this area to a height consistent with that of the existing workshop area. This area is already largely excavated. Such excavation works will not alter the visible topography of the site as any works are totally within the existing building envelope. The plans provide for a light well on the western side of the basement that is designed to increase amenity through providing access to natural light to the laundry and lift lobby. The majority of the excavation works for the proposal are for the underground car parking. 48 Consequently, the development satisfies the objective in cl 17(f). Consequently, the SEPP 1 objection is well founded and it would be both unreasonable and unnecessary to refuse the objection.

49 Mr Pickles states that the SEPP 1 objection is not well founded and should be rejected. In his opinion, the objective is principally to limit excavation to restrict habitable rooms. In this case, the excavation proposed under the building is to create the space for Apartment 1 and is therefore inconsistent with objective (f).

50 In considering the SEPP 1 objection and the evidence of Mr Pickles, I am satisfied that the variation to the height development standard can be supported in this instance. Mr Ingham and Mr Pickles did not see the increase in overall height from 13.31 metres to 13.36 metres as an issue. I agree that the difference would be unperceivable from locations around the site. Mr Ingham and Mr Pickles also agreed that the majority of the excavation related to the underground car parking area; this being for a purpose that is excluded from objective (f).

51 Objective (f) must be considered in the context of cl 17 ,i.e., height. The approach adopted by Mr Pickles essentially raises the issue of excavation in a density or floor space context. This approach would be valid where the additional floor area results in additional height but this is not the case in this application. The area of excavation required for the lower level apartment and light well is relatively minor when compared to the overall level of excavation. The excavation for Apartment 1 has no bearing on the height of the proposal. Importantly, cl 39 independently provides specific objectives for the excavation of land. 52 For these reasons I find that the SEPP 1 objection is well founded and that strict compliance with the height development standard is unreasonable and unnecessary in the circumstances of the case.

Whether the proposed excavation is excessive 53 Mr Ingham states that the majority of the excavation is underneath the existing building and will the therefore have little effect on neighbours. Where the excavation is external to the existing building it is largely to provide the connection between the apartments and the car parking area and is mostly excluded from the calculation of floor space of the building. Mr Ingham further states that there is no natural topography and landform on the site being destroyed by the proposed development. The car parking area is excavated into an area, which is partially filled below the upper level adjacent to Cremorne Road. This area having already being significantly excavated for the existing dwelling.

54 Mr Pickles states that the amount of excavation is excessive and is contrary to cl 39(2) in that the excavation does not minimise the adverse effects of excavation on the amenity of neighbouring properties through vibration, noise and dust (cl 39(2)(b)) and minimise excavation and site disturbance so as to retain natural landform natural rock faces, sandstone retaining walls and the like (cl 39(2)(c)).

55 LEP 2001 provides no numerical requirements for excavation. Objective (b) relates to impact on adjoining properties. Despite his concerns Mr Pickles accepts that suitable conditions has been agreed that would reduce the impacts of excavation on adjoining properties. I accept these conditions adequately minimise the issue of excavation on adjoining properties in accordance with cl 39(2)(d) and that the amount of excavation is minimised in accordance with Sec 7.2 a. 56 Objective (c) requires that excavation and site disturbance to be minimised. I accept the evidence of Mr Ingham that the proposal satisfies this requirement. The excavation required for the lower level apartment is relatively small and located beneath the existing building. This could not be seen to have an impact on any natural feature. The excavation required for the basement car park is more extensive however it is located in an area already the subject of disturbance from the construction of the existing dwelling and terracing of the setback area to Cremorne Road. The excavation will not alter this already disturbed landform in any meaningful way.

57 Consequently, I am satisfied there are no issues relating to the excavation of the site that would warrant the refusal of the development application.

The amenity of the proposed lower level apartment 58 Apartment 1 was the subject of amendment following discussions between Mr Ingham and Mr Pickles. The amendment provided for the relocation of the kitchen area from the rear of the apartment (and within the excavated area) to the easterly elevation. The area located at the rear of the apartment now consists of not habitable rooms including a storeroom, laundry, toilets, entry, walk-in wardrobe and linen cupboard. A light well will provide some natural light and ventilation to the rear of Apartment 1.

59 Mr Ingham sees the amendments as providing a satisfactory level of amenity for future occupants. Mr Pickles accepts that the amendments improve the amenity of future residents however he sees the amendments as a contrived solution leaving the basement apartment with limited cross ventilation and a light well to the storeroom that achieves little. 60 DCP 2002 provides that habitable rooms (not including bathrooms, laundries and storerooms) are to be located above the existing ground level (Sec 7.2 a ii). In my understanding of the amended plans, this requirement is largely satisfied as the habitable rooms all have an easterly aspect and if there is some portion of the rooms that are below existing ground level there is no impact on the amenity of these rooms. Resident concerns 61 The following residents gave evidence on the morning of the first day of the hearing and the dwellings at 55 and 59 Cremorne Rd were inspected at this time: o Ms Sally White of 59 Cremorne Rd, o Dr Hannes Boshoff of 55 Cremorne Rd and o Ms Susan Nash on behalf of Estate of 26 Cremorne Rd. 62 Their concerns (and not addressed earlier in the judgment) relate to: o additional traffic, o overshadowing, o loss of privacy, o impact on views from landscaping, o bulk and scale of the additions, Traffic 63 Additional traffic and access to and from the basement carpark was not an issue raised by the council but was a concern of local residents. I note that the residents concerns were addressed by the council in their assessment of the development application. The reporting officer stated that while there was the possibility of a vehicle having to wait to gain access to the basement carpark, the likelihood of conflict is limited due to the comparatively small number of vehicle movements generated by the proposed development. With all vehicles leaving the site from the car lift in a forward direction and the visitor space having adequate sightlines to see vehicles travelling southbound from on Cremorne Road. the proposal is superior in traffic terms than the current situation. Currently vehicles are required to reverse into or out of the existing garage. I note that condition H1 requires the provision of a traffic light to alert drivers on Cremorne Road. if the car lift is in operation. In the absence of any contrary evidence, I accept that there are no traffic or access reasons why the development should be refused. Overshadowing 64 Potential overshadowing impacts are restricted to Dr Boshoff's dwelling and principally the kitchen windows in the northern elevation of his dwelling. With the benefit of the site view I acknowledge that there will be a reduction in available sunlight to these windows however due to the orientation and location of these windows any redevelopment on the subject site is likely to reduce the sunlight to this area of Dr Boshoff's dwelling.

65 Overall, I am satisfied that the loss of sunlight is not a matter that should lead to the refusal or amendment of the development application largely because of the extensive areas of the dwelling that maintain access to sunlight in an easterly and southerly direction from the principal living areas of Dr Boshoff's dwelling. Overlooking 66 Overlooking was an issue from Ms White's dwelling and also Dr Boshoff's dwelling. The potential areas for overlooking into Ms White's property are from the windows in the northern elevation of the proposed apartments and from the lobby area. I note that condition C10 addresses privacy and provides that the family room window of Apartment 3 shall have frosted or opaque glass to a height of 1.5 metres. The window is also limited to an opening width of 150 mm. The lobby area windows are to be frosted or opaque glass and unopenable. I accept these requirements adequately address any potential overlooking into Ms White's property.

67 Dr Boshoff's concerns for overlooking relate to the balcony area and the potential to look into rooms of his dwelling and pool area. Again, with the benefit of the site view, I am satisfied that the proposed development does not create unacceptable overlooking issues. With the principal views from the balcony of the proposed development being in an easterly direction over Mosman Bay, only acute sightlines are available into Dr Boshoff's dwelling and pool area. The opportunities for overlooking are also no different to those that exist at present. The alterations and additions to the balcony area do not create any further opportunities for overlooking so no alterations or amendments are necessary to the proposed development. Impact on views from landscaping 68 As I understand, this issue was addressed by the council in the consideration of the landscaping plans.

Bulk and scale of the additions 69 The proposed development uses the existing building envelope for the majority of the proposed development with the exception of the lobby area. The basement carpark does not add to the bulk and scale of the development. 70 I am satisfied that the lobby area is sufficiently setback from both adjoining properties to minimise any additional bulk created by this part of the development. This area is also sufficiently setback from Cremorne Rd to be consistent with the existing streetscape presentation within the neighbourhood. In my view, the reduction in the garage size improves the streetscape presentation by providing additional landscaped area at the Cremorne Rd frontage.

Conditions 71 At the close of the hearing, the parties were still discussing the draft conditions of approval. Leave was granted for the parties to file agreed draft conditions within 7 days from 2 May 2007 or in the event of any disagreement, within 14 days from 2 May 2007. 72 The parties responded on 15 May 2007 advising that conditions C38 and C39 were still in dispute. These conditions relate to the provision of a detention and rainwater tank and the dispute between parties relates to the location of the tank. The council requires the tank be located within the covered courtyard area of Apartment 2 to ensure that this area is not used for additional habitable rooms in association with this apartment. The applicant maintains that the plans do not indicate that this area is to be used for any purpose other than a covered courtyard area and as such it is not necessary for the tanks to be located in his position. The tank can be adequately located partially under the carpark structure on north and west side of the covered courtyard area.

73 I accept the applicant's submission on this condition. If the covered courtyard area is used for any other purpose other than that designated on the approved plans then the opportunity exists the council to take whatever action is necessary to ensure compliance with the development consent. Orders 74 The Orders of the Court are

1. The appeal is upheld.
2. Development Application No 85/03 for alterations and additions to an existing dwelling to provide for three apartments at 57 Cremorne Road Cremorne Point is approved subject condition in Annexure A.
3. The exhibits are returned with the exception of exhibits 1, 2, and A.

      G T Brown
      Commissioner of the Court

15/06/2007 - typographical errors in surname and Property Number. - Paragraph(s) Paragraph 1 and Order 2

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