Moisidis v The Council of the City of Sydney

The site and its context

1. The site is located at 292 South Dowling Street, Paddington and is legally described as Lot 1 in DP 259383.
2. The site is regular in shape with an area of approximately 160sqm and has a primary frontage of approximately 5m to South Dowling Street.
3. The site contains a two-storey, late Victorian Federation-era, semi-detached terrace dwelling situated at the northern end of a row comprising five similar terrace dwellings. The subject dwelling presents to South Dowling Street with a terracotta-tiled gable roof and projecting gable roof feature. The primary elevation is of face brickwork, elevated above South Dowling Street with entry steps leading to the formal entry.
4. The site is not an identified heritage item, but is located within the Paddington Urban Heritage Conservation Area (HCA) as defined in the Sydney Local Environmental Plan 2012 (SLEP).
5. As is typical of many traditional terrace houses in inner-urban areas, the attached neighbour at 294 South Dowling Street shares a party wall with the subject property. The site boundary lies along the centreline of the party wall, with each neighbouring site situating half of the party wall within its boundary and with each dwelling relying on the other for support.
6. The unauthorised building works at 292 South Dowling Street include a vertical extension to the full width of a portion of this party wall in order to accommodate the modifications to the rear roof form. These works were undertaken without the consent of the owner of 294 South Dowling Street.
7. To the north of the site and towards the rear of the allotment, at 288 South Dowling Street, is a neighbouring two-storey terrace dwelling, which presents a first-floor habitable room towards the common boundary with the subject site. A number of windows from the unauthorised building work create opportunities for cross viewing between the two adjacent properties.
8. The site is situated within an inner-urban context that comprises residential and supporting mixed uses. The applicable land use zone anticipates primarily residential development and the surrounding buildings are generally consistent with this land use.

The planning controls

1. The key relevant statutory planning controls and codes are as follows: 1. EPA Act. 2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 3. SLEP. 4. SDCP. 5. National Construction Code (NCC), Building Code of Australia (BCA), Volume Two 2019.
2. Pursuant to cl 2.2 of the SLEP, the site is zoned R1 General Residential. Development for the purpose of a dwelling house, including alterations and additions, is permitted with consent.
3. Pursuant to cl 5.10 of the SLEP, Heritage conservation, the site is located within a locally significant HCA as set out at Sch 5, Pt 2 of the SLEP. The HCA is designated as Paddington Urban (C50). The existing dwelling on the site is identified in the SDCP as a contributory building within the HCA.
4. Under the provisions of s 17(d) of the Land and Environment Court Act 1979, the Court has jurisdiction to hear and dispose of appeals brought under ss 8.7, 8.18 and 8.25 of the EPA Act.

History of the Development Applications, Building Information Certificate applications and Development Control Order

1. The Respondent's Amended Statement of Facts and Contentions, filed with the Court on 6 December 2022 and forming Exhibit 2 in these proceedings, sets out the history of the DA, BIC and DCO. A concise summary follows.
2. On 17 December 2020 - after receiving a complaint regarding building work being undertaken at the site - the Respondent's Senior Building Surveyor inspected the site and determined that unauthorised building work was being carried out.
3. The unauthorised building work included alteration of the dwelling's existing rear roof form and its conversion to create habitable roof space including the construction of an ensuite, staircase and associated open plan room, along with other enabling works within the existing dwelling.
4. On 18 December 2020, pursuant to Div 9.3 and Sch 5, Pt 1 of the EPA Act, the Respondent issued a DCO - Number 2 - Stop Work Order requiring the Applicant to stop building work. Permission was given by the Respondent to install a single glazed panel in the first-floor third bedroom wall frame and a single glazed panel in the elevated staircase void wall opening in order to secure and make water-tight the works whilst the matter was resolved.
5. In an effort to regularise the unauthorised works, the Applicant lodged a BIC application BC/2021/8 on 27 January 2021.
6. On 22 July 2021, BC/2021/8 was refused by the Respondent.
7. On 26 August 2021, pursuant to Div 9.3 and Sch 5, Pt 6, cl 8 of the EPA Act, the Respondent issued the Applicant with a notice of its intention to give an order - Number 3 - Demolish Works Order. The notice foreshadowed the Respondent's DCO which would require the demolition of the unauthorised works.
8. On 13 September 2021, the Applicant's consultant planner, Mr Andrew Minto, made representations to the Respondent on behalf of the Applicant. Mr Minto advised the Respondent of the Applicant's intention to prepare and submit a DA which would seek consent for proposed alterations and additions to the unauthorised works at the site in response to specialist heritage advice, together with seeking consent for the use of the works.
9. As part of these representations, the Applicant also requested the Respondent to not issue the DCO until such time as the DA had been lodged and determined.
10. DA D/2021/1224 was lodged with the Respondent by the Applicant on 21 October 2021.
11. After a preliminary assessment of the DA by the Respondent, the Applicant was invited to withdraw the DA on 27 October 2021.
12. On 5 November 2021, the Applicant advised the Respondent the DA would not be withdrawn and requested the DA be determined. The Applicant also advised the Respondent of an intention to lodge a separate application for a BIC, seeking to regularise those elements of the unauthorised works proposed to be retained as a consequence of the DA's alterations and additions.
13. The DA was publicly notified from 9 November 2021 to 24 November 2021. Five submissions were received by the Respondent raising issues associated with: 1. The nature of the unauthorised building work. 2. Concerns for heritage impacts. 3. Absence of the neighbouring owner's consent for works proposed on a portion of the neighbouring party wall. 4. Privacy impacts arising from cross viewing.
14. On 26 November 2021, the Applicant lodged BIC application BC/2021/117.
15. On 25 February 2022, the DA was refused by the Respondent. The notice of determination, which forms a portion of Exhibit 5 in these proceedings, includes reasons for refusal which are summarised as: 1. Retrospective consent for unauthorised works by DA cannot be granted through the EPA Act. 2. Pursuant to cl 4.3 of the SLEP, Height of buildings, the proposed development exceeds the maximum 9m height of building development standard applicable to the site. The unauthorised works and proposed alterations and additions have been built to a height of 10.73 metres, which represents a 19.2% (by my calculation) exceedance of the height of buildings development standard. 3. Pursuant to cl 5.10 of the SLEP, Heritage conservation, the proposed development does not satisfactorily conserve the heritage significance of local heritage items and the HCA. 4. The proposed development is inconsistent with a number of provisions of the SDCP, specifically: 1. Section 2.9.2 Selwyn Street Locality Statement. 2. Section 3.9.6 Heritage conservation areas. 3. Section 3.9.7(3)(g) Contributory buildings. 4. Section 3.9.10(4) Building materials for heritage items and buildings within heritage conservation areas. 5. Section 4.1.4 Alterations and additions. 6. Section 4.1.4.3 Wing additions. 7. Section 4.1.5.1 Ensuring sympathetic roof alteration and additions. 8. Section 4.1.5.5 Rear roof extensions. 1. Pursuant to cl 6.21 of the SLEP, Design excellence, the proposed development does not deliver the highest standard of architectural, urban and landscape design. 2. The DA has not adequately demonstrated owners consent for works situated on portions of the party wall belonging to the neighbouring property. 3. Given the reasons noted above, the proposal is contrary to the public interest.
16. On 8 March 2022, the BIC application was refused by the Respondent. The notice of refusal, which forms part of Exhibit 4 in these proceedings, includes very similar reasons for refusal as those given for the refusal of the DA and are summarised as: 1. Building height. 2. Heritage conservation impacts. 3. Design and bulk. 4. Design excellence. 5. Consent for works to party wall. 6. The public interest.
17. On 28 March 2022, the Applicant appealed to the Court against the Respondent's refusal of the DA (proceedings number 2022/88816).
18. On 29 March 2022, the Applicant appealed to the Court against the Respondent's refusal of the BIC application (proceedings number 2022/88827).
19. On 13 April 2022, the Respondent issued the DCO requiring the Applicant to demolish the unauthorised works.
20. On 22 April 2022, the Applicant appealed to the Court against the Respondent's DCO (proceedings number 2022/115594).
21. As noted already in this judgment, on 14 November 2022 and prior to the hearing, the Applicant was granted leave to amend the DA and to rely upon amended plans and documents. This amended DA remained similar in many aspects as the original DA, but incorporated design changes intended to resolve the Respondent's contentions.
22. This amended DA was re-notified for an extended period over the holiday season from 6 December 2022 and until late January 2023, with the Respondent receiving a further five submissions, including two in support of the amended DA and two which restated earlier concerns for privacy and cross viewing impacts and the absence of the neighbouring owner's consent for works proposed on a portion of the common party wall.

The DA appeal

1. The contentions raised by the Respondent in the DA appeal can be found in the Amended Statement of Facts and Contentions forming Exhibit 2 in these proceedings.
2. These contentions are summarised below, and at the commencement of the hearing, all remain pressed by the Respondent: 1. The unauthorised works should be demolished in accordance with the DCO issued by the Respondent since the overall form of the roof additions are inconsistent with the Respondent's development controls. 2. The DA lacks adequate owners consent for development proposed on the neighbouring party wall, and similarly lacks owners consent for those unauthorised works which are situated on the neighbouring party wall. 3. Both the DA and the unauthorised works do not comply with the principal development standard for height of buildings set out at cl 4.3 of the SLEP. The unauthorised works have been built to a height of 10.73m, which is an approximately 19.2% exceedance of the applicable 9m standard (by my calculation). The proposed height exceedance is not able to be supported due to the inconsistency of the rear roof form with the controls set out at Section 4.1 of the SDCP. The Applicant's written request, pursuant to cl 4.6 of the SLEP, seeking to vary the height of building development standard does not adequately address the matters set out at cl 4.6. 4. Pursuant to cl 6.21 of the SLEP (at the relevant date), Design excellence, both the DA and unauthorised works fail to demonstrate a high standard of architectural design, materials and detailing appropriate to the building type and location. 5. Pursuant to cl 5.10 of the SLEP, Heritage conservation, both the proposed development and unauthorised works fail to conserve the heritage significance of the Paddington Urban HCA, including associated fabric and setting. Similarly, the proposed development and unauthorised works are inconsistent with specific controls set out in the SDCP including: 1. Section 2.9.2 Selwyn Street Locality Statement. 2. Section 3.9.6 Heritage conservation areas. 3. Section 3.9.7 Contributory buildings. 4. Section 3.9.10 Building materials for heritage items and buildings within heritage conservation areas. 5. Section 4.1 Single Dwellings, Terraces and Dual Occupancies. 1. Both the DA and the unauthorised works exhibit unacceptable design and bulk as they significantly alter the profile and form of the original terrace dwelling in an unsympathetic manner and fail to respect the uniformity of the row of five terrace dwellings. Additionally, the DA and unauthorised works are inconsistent with a series of specific controls set out in the SDCP including: 1. Section 4.1.4.3 Wing additions. 2. Section 4.1.5.1 Ensuring sympathetic roof alterations and additions. 1. An earlier contention, relating to insufficient and inaccurate information, was resolved prior to the hearing at the time the Court granted leave to the Applicant to amend the DA on 14 November 2022. 2. For the reasons above, the DA is inconsistent with the objectives of the EPA Act as set out at s 1.3(g) in so far as it does not promote good design or amenity of the built environment. 3. Similarly, for the reasons above and pursuant to s 4.15 (e) of the EPA Act, the DA is not in the public interest as a result of the proposal's inconsistencies with a number of relevant development controls and the associated impacts it creates.

The BIC appeal

1. The contentions pressed by the Respondent in the BIC appeal can be found in the Statement of Facts and Contentions forming Exhibit 1 in these proceedings. In most regards these contentions reflect those in the DA appeal and are not repeated here but for one additional contention, specific to the BIC appeal, summarised as follows: 1. The unauthorised works do not provide adequate fire separation of external walls. Specifically, the vertical sheet metal cladding affixed to the southern elevation of the party wall and within 900mm from the site boundary does not provide adequate fire separation of external walls as set out in the Acceptable Construction Practice Provisions of the NCC and BCA.

The DCO appeal

1. The contentions pressed by the Respondent in the DCO appeal can be found in the Statement of Facts and Contentions forming Exhibit 8 in these proceedings. In most regards these contentions also reflect those in the DA and BIC appeals and are not repeated here but for one additional contention, specific to the DCO appeal, as follows: 1. The unauthorised works required prior development consent where no such consent was granted.

The evidence

1. At the commencement of the hearing, the Court benefited from oral submissions made by two owners and residents of neighbouring properties.
2. The owner of the immediately attached property at 294 South Dowling Street, which shares a brick party wall with the subject site, restated earlier written submissions made in response to the notification of the DAs noting a number of specific points of concern: 1. The lack of fire separation between the neighbouring properties evident in the lower rear skillion roof forms, which are connected by an open roof space - noting that this situation pre-dates the unauthorised works. 2. The altered rear roof form having inadequate side setbacks from each of its two bounding walls, which represents an inconsistency with the relevant development control that would otherwise require a nominal 500mm side setback. 3. The proposal's potential impacts upon the structural adequacy of the existing party wall and uncertainty of structural load paths and the bearing of new columns associated with both the unauthorised works and the DA. 4. The creation of a poor precedent.
3. During the second day of the hearing, the resident owner offered written consent for certain building works affecting the party wall in a scenario where the Court were minded to uphold the appeals. This correspondence forms Exhibit 9 in these proceedings.
4. The Court thanks this resident owner for their practical assistance in this regard, acknowledging that the neighbour is not a party to proceedings and for this reason is not compelled in any way to provide such consent.
5. The second resident submitter raised concerns for potential for cross viewing and privacy impacts arising from the unauthorised works and the DA. The resident noted that the DA included some measures for mitigating cross viewing, with perhaps 40% of the line of sight obscured by screening. However, the resident requested these residual impacts be entirely eliminated by the installation of shutters, opaque glazing and angled louvres to effectively blinker all windows.

Addressing the contentions in the BIC appeal

1. The Court was assisted by experts in building surveying who conferred to prepare a joint report. The experts are Mr Mark Nicholson (building surveyor) for the Applicant and Mr Christopher Tonks-Trinder (building surveyor) for the Respondent. Their joint expert report forms Exhibit 4 in these proceedings.

Contention 2 (BIC appeal) - fire separation

1. The joint report sets out the extent of agreement between the experts regarding the achievement of adequate fire separation evident in the unauthorised works. In summary, the experts agree that the unauthorised work as currently executed does not meet the deemed-to-satisfy provisions of the NCC and specifically Volume Two of the BCA.
2. At page 11 of the joint report, the experts state: "The unauthorised alterations and additions to the southern boundary party wall are made of part masonry, part timber frame and part metal cladding. The southern boundary party wall is within 900mm of another allotment. BCA Part 3.7.2.2 states external walls within 900mm of an allotment boundary must comply with BCA Part 3.7.2.4. The unauthorised alterations and additions to the southern boundary party wall within 900mm of a boundary allotment is therefore required to be constructed of fire resisting materials as per BCA Part 3.7.2.4(a). The part timber frame and part metal cladding portion of the southern boundary party wall within 900mm of a boundary allotment does not achieve the required Fire Resistance Level FRL 60/60/60 in a Class 1a building external wall as per BCA Part 3.7.2.4 (b)(i). Therefore, the part timber frame and part metal cladding portion of the southern boundary party wall poses a risk to the spread of fire between adjoining properties."
3. Both experts then separately acknowledge that these deficiencies are capable of being remedied by virtue of the works described in the DA. At pages 12-13 of the joint report, Mr Tonks-Trinder states: "…in amended proposed plans…demolition of the unauthorised alterations and additions to the affected party wall proposes the return of the parapet to the original rear roof plane profile, with new bounding construction to be offset from the southern boundary and self-supported internally by steel beams. Upon review of these plans, it is likely compliance with the National Construction Code is achievable if built in accordance with detailed BCA provisions, Australian Standards, manufacturers specifications and critical stage inspections conducted and certified by an Accredited Certifier."
4. Similarly, at page 13 of the joint report, Mr Nicholson states: "…the new proposed rectification works on the amended proposed plans…have provided an adequate level of detail to display that the proposed rectification work is capable of compliance with the Performance Requirements of BCA 2019, Amendment 1 (Vol.2). Any proposed works will require adequate documentation to show compliance through construction specifications, testing reports, and manufacturers specifications for any proposed systems or materials used. Critical stage inspections will also be required to be carried out by an Accredited Certifier."

Addressing the contentions in the DA and DCO appeals - planning, heritage and urban design issues

1. The Court was assisted by experts in planning, heritage and urban design who conferred to prepare a joint report. The experts are Mr James Phillips (heritage and urban design) and Mr Andrew Minto (planning) for the Applicant, and Ms Cindy Ch'ng (urban design), Mr John Poulton (heritage) and Mr James Cooper (planning) for the Respondent. Their joint expert report forms Exhibit 3 in these proceedings.
2. The following paragraphs structure these experts' evidence around various contentions in this matter.

Contention 1 (DA appeal) - demolition of unauthorised works

1. The joint report sets out the extent of agreement and disagreement between the planning experts regarding whether the unauthorised works should be demolished.
2. The experts agree that the site is located within the Paddington Urban HCA and the existing dwelling is identified as a contributory building.
3. At paragraphs 13-17 of the joint report, Mr Cooper sets out his dissatisfaction with both the unauthorised works and the proposed alterations and additions documented in the DA, which he says: "…fail to meet the Objectives of 4.1.4 Alterations and Additions of the SDCP 2012 as the proposal does not achieve a sympathetic development that maintains the fabric of the existing terrace, nor does it protect and respect the traditional character and heritage significance of the contributory building. The completed and proposed works fail to provide an addition of appropriate scale and appearance that relates to the scale and character of the existing contributory building and associated terrace row…"
4. Correspondingly, at paragraphs 18-22 of the joint report, Mr Minto sets out his view that despite its inconsistency with the suite of applicable development controls, the cumulative effect of the DA results in a roof form that creates no unreasonable impacts on the HCA or neighbouring properties.
5. Further, in these same paragraphs, Mr Minto states: "…the proposal and for that matter the rear view of the subject and adjoining terraces are not visible from South Dowling Street or the public domain." "…the additions will be visible from the upper level of 288 South Dowling Street, however [he] considers this to be acceptable having regard to the quality of the design proposed by the plans the subject of this appeal." "…the proposal will not result in any unreasonable overshadowing or loss of privacy to the adjoining properties and importantly will not result in any unreasonable impacts upon the HCA as viewed from the public domain." "…whilst the proposal does involve unauthorised works…the works proposed by this application will significantly alter the appearance of the unauthorised structure, such that it will appear as a high-quality addition as opposed to the current situation, which it is accepted does not have a satisfactory appearance."
6. In his oral evidence, Mr Cooper agreed that he defers to the heritage and urban design experts on merit issues to the extent that - should the DA contentions of design excellence and heritage conservation be resolved - then his position on the necessity to demolish the works would fall away and potentially resolve Contention 1 of the DA appeal and the DCO appeal in its entirety.

Contention 2 (DA appeal) and Contention 1 (DCO appeal) - owners consent

1. The experts agree, at paragraphs 23-26, that owners consent for both unauthorised works and proposed alterations and additions on the neighbouring party wall has not been obtained.
2. The experts also agree on the extent of works, both existing and proposed, which affect the neighbouring portion of the party wall. These include the proposed demolition of all existing unauthorised work currently situated on the party wall and the reinstatement of roof sheeting and apron flashing matching that which pre-dated the unauthorised works.
3. The experts disagree however, on whether or not the neighbouring owner's consent is required for the demolition works described in the Respondent's DCO.
4. At paragraphs 27 and 28, Mr Cooper gives his view that: "Owners consent of the adjoining neighbour is not required to remove the unauthorised works to the party wall if the applicant complies with Council's original development control order issued 22 April 2022. However, the proposed roof sheeting, new apron flashing and removal of the unauthorised works associated with the party wall in connection with the proposed modification [alterations and additions] will require the consent of the neighbour as it constitutes a new development application."
5. Mr Minto, at paragraph 29 of the joint report, states his view that since the DA seeks to demolish all existing unauthorised works associated with the party wall and does not propose any new works which rely upon the party wall, that the consent of the adjoining property owner is not required.
6. In any event, given the written consent provided by the neighbour during the second day of the hearing - as noted at [52] above - the matter of owners consent appears to be capable of resolution and I will return to this question later in this judgment.

Contention 3 (DA appeal) - building height

1. At paragraph 31 of the joint report, the planning experts agree that the Applicant is required to provide an amended written request pursuant to cl 4.6 of the SLEP.
2. However, the experts thereafter disagree on the suitability of justifications set out in the cl 4.6 written request, with Mr Cooper setting out his dissatisfaction as follows: "The unauthorised works, as built, and the proposed modification [alterations and additions] fail to demonstrate that there are that there are sufficient environmental planning grounds to justify contravening the height of building (HoB) development standard. The variation to the standard to accommodate the existing and proposed works fails to promote good design. As detailed within Contention 4 and 5 the proposal results in inappropriate bulk and mass to the subject building as a result of the cumulative non-compliance with the Sections 4.1.4 Additions and alterations, 4.1.4.3 Wing additions, and 4.1.5.1 Ensuring sympathetic roof alterations and additions of the SDCP 2012." "…the proposal fails to respond to objective a)…of the HoB standard in that it fails to 'ensure the height of development is appropriate to the condition of the site and its context'. The unauthorised and proposed works occurring above the 9m height control inappropriately responds to the subject site and terrace row. The works result in a development that fails to maintain the fabric of the existing terrace, nor does it protect and respect the traditional character and heritage significance of the subject building thus failing to satisfy objective a) of the development standard."
3. At paragraph 36 of the joint report, Mr Minto gives his view that the reasons set out in the Applicant's cl 4.6 written request (which forms Appendix B to Exhibit 3) do justify the proposed exceedance of the height of building development standard.
4. The central justification provided by Mr Minto in the cl 4.6 written request includes: 1. The existing dwelling (prior to the unauthorised works being carried out) has a maximum height of 10.73m, already exceeding the development standard of 9m. 2. The unauthorised works and the proposed alterations and additions do not seek to increase this maximum existing height of the dwelling, with the works being situated at or below the existing primary ridge line. 3. The proposal does not result in any changes to the perceived bulk and scale of the dwelling when viewed from the primary street.
5. In his oral evidence, Mr Cooper accepted that the height of building exceedance pre-exists the unauthorised works, and that the alterations and additions proposed in the DA would not further alter this height exceedance, nor would the resultant works be visible from the primary street.
6. Mr Cooper also accepted that he defers to the heritage and urban design experts on merit issues to the extent that - should the DA contentions of design excellence and heritage conservation be resolved - then his position on the acceptability of the Applicant's cl 4.6 written request would fall away and potentially resolve Contention 3 of the DA appeal.

Contention 4 (DA appeal) - design excellence

1. At paragraphs 37-84 of the joint report, the planning, urban design and heritage experts each set out their respective views regarding the achievement or otherwise of design excellence pursuant to cl 6.21 of the SLEP (at the relevant date), Design excellence.
2. The relevant provisions of cl 6.21 are as follows: (3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. (4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters - (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, … (d) how the proposed development addresses the following matters - … (iii) any heritage issues and streetscape constraints, … (v) the bulk, massing and modulation of buildings, …"
3. In consideration of the design excellence contention, Ms Ch'ng sets out her view, at paragraph 41 of the joint report, that the proposed development does not demonstrate design excellence primarily because it does not comply with the following objectives and many of the related provisions of the SDCP: 1. Section 3.9.6 Heritage conservation areas 2. Section 3.9.7 Contributory buildings 3. Section 4.1.4 Additions and alterations 4. Section 4.1.4.3 Wing additions 5. Section 4.1.5.1 Ensuring sympathetic roof alterations and additions. 6. Section 4.1.5.3 Roof materials on heritage buildings and in heritage conservation areas
4. Ms Ch'ng goes further at paragraphs 42 and 43 to state that: "The above suite of controls seeks to ensure that changes to contributory buildings are sympathetic with the original building height, form, bulk, scale, materials, details and its context. The proposed and unauthorised changes do not respect the significant original built form and are unsympathetic to the row. Compliance with the above objectives and provisions set the benchmark for achieving merit for rear roof form extensions. As the proposed and unauthorised works do not achieve the objectives and provisions, it does not meet the standards of merit and as such does not achieve design excellence."
5. In successive paragraphs of the joint report Ms Ch'ng addresses the perceived shortcomings of the DA against key terms drawn from cl 6.21(4)(a) and (d) of the SLEP, specifically "location", "building type", "high standard of architecture design", "materials and detailing", "heritage issues and streetscape constraints" and "bulk, massing and modulation".
6. In summary, the key elements of the unauthorised works and the proposed alterations and additions which Ms Ch'ng considers to be deficient are as follows: 1. The alterations and additions are not sympathetic to the form of the original terrace dwelling. 2. The existing and proposed works do not minimise the extent of alteration to the original building. 3. The proposed rear roof form does not respect the uniformity evident within the intact row of five similar terrace dwellings, particularly given their identification as contributory buildings within the HCA. 4. The proposal extends the existing dwelling's stair from ground level into the roof level, resulting in a stair enclosure at the rear wing that intersects with the primary roof form above its rear gutter line and thereby disrupts the otherwise consistent alignment of the rear setbacks evident in the row of five terrace dwellings. 5. Similarly, as the proposed rear stair enclosure intersects with the rear face of the primary roof, it tends to the obscure the dwelling's original roof form, where previously the primary roof and the rear wing were discernible as separate forms. 6. The proposed alterations and additions result in an extension that alters the original rear roof form and pitch, and effectively extend it for the full width of the terrace dwelling, including altering the profile of the northern boundary wall. By extending walls vertically to meet the new roof form, the proposal creates the perception of a third storey, rather than a rear-facing dormer or attic roof form. 7. The DA includes a portion of floor space within the new room that does not provide adequate head room, resolved by the inclusion of a fixed bench, which nonetheless contributes unnecessary building bulk. 8. The proposal results in a portion of the southern wall, which supports the altered roof line, that cannot be easily accessed for maintenance entirely from within the subject site. 9. The proposed skylight, with its frameless detail running from bounding wall to bounding wall, is more akin to a glazed roof than a skylight and therefore inconsistent a number of provisions in the SDCP. 10. The proposed alterations and additions to the unauthorised works are insufficient to elevate the DA to meet the threshold of exhibiting design excellence and the proposed and unauthorised works are inappropriate to the building type and its location.
7. In response, at paragraphs 71-74, Mr Phillips sets out reasons why, in his view, the DA does demonstrate design excellence and in summary these include: 1. The proposed works represent a well-considered set of alterations and additions, prepared by a capable architect which largely eliminate the issues arising from the unauthorised works. 2. The DA exhibits a high standard of architectural design, materials and detailing appropriate to the building type and location. 3. There are no important view corridors to or from the works, although part of the development may be visible along a narrow side passage. The view to the proposed works from the rear and from neighbouring properties demonstrates a major simplification of built form relative to the unauthorised works. 4. The proposal has a negligible impact on the streetscape and impacts are confined to the rear of the site and have been minimised.
8. In her oral evidence, Ms Ch'ng stated that, in her view, the issues of design excellence and heritage conservation were intertwined by virtue of the DA's "bulk, form and massing", which necessarily engages both the urban design and heritage experts' advice in resolution of both contentions.
9. Similarly, under cross examination, Ms Ch'ng clarified the view she provided in the joint report regarding the rear roof form disrupting the uniformity of five terrace dwellings in the row, which she regards as both an urban design and heritage issue.

Contention 5 (DA appeal) - heritage conservation

1. Mr Poulton and Mr Phillips set out the extent of their agreement at paragraphs 85-88 of the joint report summarised as follows: 1. The subject property is the northern-most terrace dwelling in a group of five identified as being contributory to the Paddington Urban HCA. Collectively they present as an intact row of two-storey Federation-era terrace dwellings featuring face brickwork and iron lace detailing. An unusual feature of the row is that in each dwelling, the main stair is located within the rear wing and not in the front section of the dwelling as is more typical of terrace dwellings. 2. Terrace dwellings are an important element of the character of the HCA. The statement of significance in the relevant heritage inventory report for the HCA sets out that: "Paddington Urban Heritage Conservation Area has historic significance as an 1860-1880 subdivision of the Sydney Common and an earlier subdivision of Georges Farm, both of which developed with the growth of Victoria Barracks. The area has aesthetic values for its fine consistent streetscapes comprising middle and working class terrace housing (of high integrity) built over undulating topography and enhanced by mature avenue planting. In addition, significant Federation and Interwar warehouse and other industrial buildings are scattered amongst the Victorian terraces, demonstrating key periods of development in the Conservation Area." 1. Prior to the unauthorised works being carried out, reference to aerial photography indicates the overall roof forms of the terrace row were intact and relatively uniform, each with a two-storey primary roof form with chimneys, and two-storey rear wings with skillion roofs set below the gutter line of the primary roof. 2. Both the unauthorised works and the proposed alterations and additions are out of character with the rest of the terrace row (noting the experts thereafter disagree on the acceptability of the proposed DA works).
2. At paragraphs 89-97 of the joint report, Mr Poulton sets out the reasons why, in his view, the DA is out of character with the HCA, the locality and detracts from the heritage significance of the row of contributory terrace dwellings. These reasons are summarised below: 1. The unauthorised works have resulted in the demolition of the rear part of the primary roof of the dwelling. 2. The DA works include the vertical extension of the rear wall of the primary terrace form and similarly vertically extends portions of the rear wing walls and the northern gabled boundary wall, compromising the ability to discern the original form of the terrace dwelling. 3. The alterations and additions to the roof form are not set below the primary ridge line, nor set sufficiently in from side boundaries and the primary rear wall of the terrace to be able to adequately discern the original roof form of the terrace dwelling. 4. The vertical extension of the stair and its enclosure results in an intersection between proposed roof forms which is highly uncharacteristic of the original terrace dwelling form. This results in the loss of clear visual separation between the primary roof and the lower skillion rear wing roof, which is a key feature of the terrace row. 5. The horizontal windows to the rear of the roof extension comprise proportions (which are not proposed to be changed), that are out of character since they depart from the vertical proportions of the fenestration of the existing terrace dwelling. 6. The cumulative effect of these aspects is sufficient to disrupt the overall uniformity of the row of five terrace dwellings, setting a poor example and an undesirable precedent.
3. Mr Poulton also notes (at paragraph 95 of the joint report) that the relevant provisions of the SDCP, which relate to sympathetic alterations and additions to contributory buildings (as set out at Section 3.9.7) and to roof alterations and additions (as set out at Section 4.1.5), do not apply solely to those elements that might be visible from the public domain. Specifically, Mr Poulton states: "The streetscape presentation is only part of a terrace house, there are also the other parts that are integral to it including the main part of the terrace, the main roof, and its rear wing. Therefore, I consider that unsympathetic changes to parts of a contributory terrace, have the potential to adversely impact on the character and significance of the individual terrace, the group it is part of, and in turn the whole HCA, whether they are seen from the street or not."
4. Mr Poulton continues at paragraphs 96 and 97, noting that although the DA works represent a "slight improvement" over the unauthorised works currently evident at the site, they are "still not acceptable". Specifically, he states: "What has been constructed, and those aspects proposed to be changed, are unlikely to have been supported had a Development Application been lodged prior to the works being carried out. This is because they are contrary to the DCP provisions for alterations and additions, and for rear roof extensions, they detract from the character and significance of the terrace itself and the group, and also because of the potential cumulative impact on the HCA as a whole. There is not adequate justification for the retention of these unauthorised works and therefore they should be removed."
5. In cross examination, Mr Poulton accepted that the statement of significance in the heritage inventory for the HCA, referred to at [89], assigns heritage significance to the streetscape qualities of the area. He also acknowledged that the DA would not be visible from any of these streetscapes, nor alter them in any discernible way.
6. Nonetheless, Mr Poulton restated his view that the rear-facing roof extension is "still in the HCA" and that the DA is unsympathetic to the character and form of the existing dwelling and impacts negatively upon the row of five terrace dwellings.
7. Mr Poulton also put his view that the SDCP encourages a greater extent of retention of the primary forms of the original dwelling and that aspects of the proposal "impair the reading" of the original dwelling. At issue are: 1. The lack of an adequate setback between the roof extension and the original rear primary roof gutter line. 2. The lack of an adequate side setback between the roof extension and the northern boundary wall. 3. The "pop-up roof" situated above the extended stair, its enclosure and intersection with the primary roof form.
8. Finally, Mr Poulton also noted that further design amendments, beyond those currently proposed, might improve the DA to the point where it may become acceptable.
9. In response, at paragraphs 98-105, Mr Phillips sets out reasons why, in his view, the DA is compatible with the heritage values and significance of the HCA, and in summary these include: 1. The DA includes in a skillion dormer form set into the rear roof plane of the terrace dwelling. To the south, the dormer is set back a minimum of 800mm from the boundary. To the north there is no material setback from the boundary. 2. The roof extension is screened from the public domain on South Dowling Street by a substantial existing chimney on the northern boundary of the site. The original roof form can still be understood from public vantage points by the front roof form and its intersection with the chimney. 3. The roof extension and stair enclosure are neat and the DA is well-detailed. While the DA and retained unauthorised works are contrary to the strict application of relevant SDCP provisions, the north face of the roof extension will be differentiated from the boundary wall of the terrace dwelling in a distinguishable material and set in slightly from the northern face of the original terrace wall. 4. The horizontally-proportioned windows associated with the rear roof extension are to be clad with horizontal louvres clearly indicating a later addition. 5. The extent of glazing to the proposed roof within the southern side setback has been reduced, with a roof light providing natural light to the stairwell below proposed. 6. Although the vertical extension of the stairs in the rear wing and their enclosure results in a loss of the clear visual separation between the primary roof form and the lower rear skillion roof, this relationship is only visible from private spaces within 288 South Dowling Street. 7. The proposed alterations and additions to the terrace mark a considerable improvement to the unauthorised works so far as to simplify the form of the rear extension and hence to mitigate visual impacts arising from it. 8. The improvements offered by the DA relative to the unauthorised works include material differentiation between the side profile of the existing terrace and the roof extension above it, removal of uncharacteristic window forms, particularly triangular windows, and the general simplification of the built form to the roof and rear of the subject terrace dwelling.
10. In cross examination, it was put to Mr Phillips, that his expert evidence amounted to a view that "if it [the works described in the DA] can't been seen, then it doesn't matter", which Mr Phillips did not accept, instead restating his view that the cumulative amendments reflected in the final amended DA were satisfactory, "neat and well-considered".

Contention 6 (DA appeal) - unacceptable design and bulk

1. At paragraphs 107-109 of the joint report, the heritage and urban design experts variously defer to their earlier evidence relating to Contentions 4 and 5 in the DA appeal to set out their views on the appropriateness or otherwise of the design and its corresponding bulk.

Contention 8 (DA appeal) - inconsistency with objectives of the EPA Act

1. At paragraphs 111-112 of the joint report, the planning experts variously defer to their earlier evidence and that of the heritage and urban design experts regarding the appropriateness of the DA in meeting the objective set out at s 1.3(g) of the EPA Act, being "to promote good design and amenity of the built environment".

Contention 9 (DA appeal) - development not in the public interest

1. At paragraphs 114-118 of the joint report, the planning experts set out their views on whether or not the DA is in the public interest pursuant to s 4.15(1)(e) of the EPA Act.
2. In summary, Mr Minto's view is that the DA is in the public interest given the lack of privacy impacts and (deferring to the evidence of Mr Phillips) because of the DA's achievement of design excellence and heritage comparability.
3. In contrast, Mr Cooper finds fault in the nature of the unauthorised works, the heritage impacts of the DA, the absence of the neighbour's consent for works on the party wall and for privacy impacts upon the northern neighbour.

Findings

1. I now move to dismiss each of the three appeals. In deciding this course, I set out my reasons in the following paragraphs.
2. Firstly, it is appropriate to distil the areas of disagreement across the three appeals into two fundamental planning, urban design and heritage issues: 1. Whether, pursuant to cl 5.10 of the SLEP and on its merits, the DA conserves the heritage significance of the HCA (Contention 5 of the DA appeal). 2. Whether, pursuant to cl 6.21 of the SLEP and on its merits, the DA exhibits design excellence (Contention 4 of the DA appeal).
3. These two tests are central to my findings in this matter and ultimately represent the determinative factors. Upon satisfaction of both these questions, I would then otherwise be satisfied that each of the remaining contentions should fall away.
4. Specifically, if the DA were found to meet the merit tests for design excellence and heritage conservation then, based on the evidence before the Court, I find that I would also be satisfied that: 1. Contentions regarding owners consent for unauthorised and proposed works affecting the neighbour's portion of the party wall would be resolved by the express written consent provided by the owner of 294 South Dowling Street and tendered as Exhibit 9 in these proceedings. 2. Contentions regarding whether the unauthorised works should be demolished or not would be resolved by virtue of the DA's merit, rendering those remaining elements of unauthorised work acceptable. 3. Contentions regarding unacceptable height and the exceedance of the height of building development standard set out at cl 4.3 of the SLEP would be resolved by virtue of the merits of the DA and thereafter by the adequacy of the Applicant's written request pursuant to cl 4.6 of the SLEP. 4. Contentions regarding unacceptable design and bulk would be resolved by virtue of the merits of the DA. 5. Contentions regarding the DA's inconsistency with particular EPA Act objectives and whether the DA is in the public interest would be resolved by virtue of the merits of the DA. 6. Finally, contentions regarding whether the works meet the requirements of the NCC and BCA for fire resistance are resolved in either a scenario where the DA is granted consent (given that the DA works are capable of achieving fire resistance), or a scenario where the appeals are dismissed (and the demolition of the unauthorised works is to proceed).
5. As it is however, I find that the DA fails both the merit tests for heritage conservation and design excellence, and as a direct consequence the DA appeal must be dismissed. Once the DA appeal fails, so too must the appeal against the refusal of the BIC given that the unauthorised works in their current form are even further from the point of acceptability, a position agreed by both parties' experts.
6. It then follows that the appeal against the DCO must also be dismissed given the merits of the DA have not been established and the unauthorised works are determined to be unacceptable. The appropriate course is for the unauthorised works to be demolished and the earlier form of the dwelling be reinstated.

Heritage conservation

1. The operative provision of cl 5.10(4) of the SLEP, Heritage conservation, sets out that: (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned.
2. In closing for the Applicant, Mr March submitted that - when considering the effect of the DA upon the significance of any nearby heritage items and the significance the Paddington Urban HCA - impacts are to be assessed under Section 3.9 of the SDCP, which in turn has been constructed in terms consistent with The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance, 2013.
3. I accept that the Applicant has prepared a Heritage Impact Statement (HIS) forming Exhibit D in these proceedings, which is consistent with the provisions of Section 3.9.1(4) of the SDCP and assesses the heritage impacts of the DA.
4. I note it was not contended that there are impacts on any identified heritage items, only to contributory buildings and the HCA.
5. Mr March submitted that, when assessing the heritage impacts of the DA in this case, the focus should be upon the extent to which the DA impacts upon the contribution the terrace dwelling makes to the character and significance of the HCA.
6. It then follows in Mr March's submissions, that since the Paddington Urban HCA statement of significance identifies "fine consistent streetscapes" and since the DA works are largely imperceptible from the public domain, that the DA works conserve the heritage significance of the HCA.
7. Consistent with this line of reasoning, at section 6.2 of the Applicant's HIS, Mr Phillips states: "The proposed works will have a manageable impact on the Paddington [Urban] Heritage Conservation Area for the following reasons: • There is no impact of works to the principal views corridor of the terrace to the Heritage Conservation Area as no unauthorised works have been undertaken to the South Dowling Street elevation. • The works are confined to the rear attic roof area of the terrace and are not visible from the public domain or the principal view corridors along South Dowling Street. • The works are not visible when standing in the rear yard of the property and are not visible from the rear yards of the adjoin[in]g terrace row to the south of the terrace. • The property adjoining the site to the east, No. 4 Verona Street, has no windows in the elevation overlooking the site. • The works are obliquely visible from the adjoining neighbour to north at No. 286 South Dowling Street and the red brick apartment building at No. 4 Verona Street."
8. However, I prefer the evidence of Mr Poulton, whose fundamental objections to the heritage impacts established by the DA are summarised from paragraphs 89-97 of the joint report: 1. The DA works include the vertical extension of the rear wall of the primary terrace form and similarly vertically extends portions of the rear wing walls and the northern gabled boundary wall, compromising the ability to discern the original form of the terrace dwelling. 2. The alterations and additions to the roof form are not set below the primary ridge line, nor set sufficiently in from side boundaries and the primary rear wall of the terrace to properly discern the original roof form of the terrace dwelling. 3. The vertical extension of the stair and its enclosure results in an intersection between proposed roof forms, which is highly uncharacteristic of the original terrace dwelling form. This results in the loss of clear visual separation between the primary roof and the lower skillion rear wing roof, which is a key feature of the terrace row. 4. The cumulative effect of these aspects is sufficient to disrupt the overall uniformity of the row of five terrace dwellings, setting a poor example and an undesirable precedent.
9. I also note that at paragraph 88, Mr Phillips accepts that both the unauthorised works and the proposed alterations and additions are out of character with the rest of the terrace row (noting that he does however consider the DA works to be acceptable).
10. Mr Poulton, at paragraph 95 of the joint report, states: "The streetscape presentation is only part of a terrace house, there are also the other parts that are integral to it including the main part of the terrace, the main roof, and its rear wing. Therefore, I consider that unsympathetic changes to parts of a contributory terrace, have the potential to adversely impact on the character and significance of the individual terrace, the group it is part of, and in turn the whole HCA, whether they are seen from the street or not."
11. Ultimately, I prefer the evidence for the Respondent and accept that heritage significance and heritage impacts may exist whether or not they are visible from the public domain. In the particular circumstance of this matter, I find that the DA results in material and unacceptable impacts upon a contributory building within the HCA, and for this reason does not meet a key objective of cl 5.10(1)(b) of the SLEP: To conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views.

Design excellence

1. In closing, Mr March submitted that the Respondent's experts' test for the achievement of design excellence appears to be linked to the degree of consistency achieved between a proposal and the relevant suite of development controls set out in the SDCP.
2. Mr March submitted this is too narrow a test and that rather, the test for the Court is that set out at cl 6.21(3) and (4) of the SLEP (at the relevant date), which states: (3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. (4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters - (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) how the proposed development addresses the following matters - (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers, existing or proposed, on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design.
3. In his closing submissions for the Respondent, Mr Canning emphasised a similar point, drawing attention to two recent decisions of the Court, being Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (No 2) v Blacktown City Council [2019] NSWLEC 126 and Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117.
4. Both these decisions serve to establish that, in forming the necessary view of satisfaction required pursuant to cl 6.21(3) of the SLEP, the consent authority (the Court in this instance) must consider each of the relevant matters set out in cl 6.21(4), which I have now done.
5. In forming my view, I note that the achievement of design excellence in this particular case intertwines both heritage and urban design issues, and I have therefore given the expert evidence of Ms Ch'ng, Mr Poulton and Mr Phillips appropriate weight.
6. I also note that each of the experts has broadly agreed that the DA represents an improvement over the unauthorised works in their current form, with the experts separated only by their views on whether the DA works are acceptable or not.
7. In the joint report, Mr Phillips sets out reasons why, in his view, the DA does demonstrate design excellence and in summary these include: 1. The proposed works represent a well-considered set of alterations and additions which largely eliminate the issues arising from the unauthorised works. 2. There are no important view corridors to or from the works, although part of the development may be visible along a narrow side passage. The view to the proposed works from the rear and from neighbouring properties demonstrates a major simplification of built form relative to the unauthorised works. 3. The proposal has a negligible impact on the streetscape and impacts are confined to the rear of the site and have been minimised.
8. Ms Ch'ng gave a number of reasons why, in her view, the DA fails to achieve design excellence, including those summarised as follows: 1. The alterations and additions are not sympathetic to the form of the original terrace dwelling. 2. The existing and proposed works do not minimise the extent of alteration to the original building. 3. The proposed rear roof form does not respect the uniformity evident within the intact row of five terrace dwellings, particularly given their identification as contributory buildings within the HCA. 4. The proposal extends the existing dwelling's stair from ground level into the roof level, resulting in a stair enclosure at the rear wing that intersects with the primary roof form above its rear gutter line which thereby disrupts the otherwise consistent alignment of the rear setbacks evident in the row of five terrace dwellings. 5. As the proposed rear stair enclosure intersects with the rear face of the primary roof, it tends to the obscure the dwelling's original roof form where previously the primary roof and the rear wing were discernible as separate forms. 6. The proposed alterations and additions result in an extension that alters the original rear roof form and pitch, and effectively extend it for the full width of the terrace dwelling, including altering the profile of the northern boundary wall. By extending walls vertically to meet the new roof form, the proposal creates the perception of a third storey, rather than a rear-facing dormer or attic roof form.
9. In his oral evidence, Mr Poulton gave words to the effect that the final amended DA, presented at that time in the form of a sketch (Exhibit U), represents an "improvement, but does not go far enough" towards the achievement of design excellence.
10. In the circumstances of this particular matter, and as I form the necessary view pursuant to cl 6.21(4) of the SLEP, I prefer the evidence of Ms Ch'ng and Mr Poulton.
11. Specifically, I accept that the resultant roof form of the DA works is not sympathetic to the form of the original terrace dwelling in two key regards: 1. The relationship of the rear roof extension to the northern boundary wall, which impairs a clear reading of the original form of the terrace dwelling, regardless of whether this is readily evident from South Dowling Street or not. 2. The relationship of the rear stair enclosure as it intersects with the rear face of the primary roof, obscuring the dwelling's original roof forms, where previously the primary roof and rear wing were discernible as separate forms.

Disposing of the matter

1. In moving to now dispose of the three appeals before the Court, I note that the Applicant's motivation in bringing the appeals presumably included seeking to alter the unauthorised works 'as little as possible and as much as necessary'. However, my consideration of the DA's merit could not be influenced by any consideration of what may have been a desired minimum extent of alteration to the unauthorised works.
2. I also note that my findings in this matter may have differed if the rear-facing roof extension had been set off the northern boundary wall by some meaningful dimension (acknowledging this implies reconfiguration of the unauthorised ensuite beneath this part of the roof) and if the form of the stair enclosure was resolved more sympathetically in its intersection with the primary roof form, the lower rear skillion and the roof dormer extension.
3. As it is however, the central issue resulting in my determination of this matter rests on the unsatisfactory relationship between the proposed form of the DA works and the form of the existing terrace dwelling.
4. For the reasons set out above, I now dismiss each of the three appeals.

Orders

1. In relation to proceedings 2022/88816 (the Development Application appeal), the Court orders that: 1. The appeal is dismissed. 2. The exhibits, other than 1, 2, 3, 4, 8, U and V, are returned.
2. In relation to proceedings 2022/88827 (the Building Information Certificate appeal), the Court orders that: 1. The appeal is dismissed. 2. The exhibits, other than 1, 2, 3, 4, 8, U and V, are returned.
3. In relation to proceedings 2022/115594 (the Development Control Order appeal), the Court orders that: 1. The appeal is dismissed. 2. The exhibits, other than 1, 2, 3, 4, 8, U and V, are returned. M Pullinger Acting Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 May 2023