Nader v Sutherland Shire Council

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Sutherland Shire Local Environmental Plan 2006

Sutherland Shire Council v Nader [2007] NSWLEC 363 CASES CITED: Sutherland Shire Council v Nader (No 2)[2007] NSWLEC 438 Sutherland Shire Council v Nader (No 3)[2007] NSWLEC 469 Super Studio v Waverley [2004] NSWLEC 91

APPLICANT Mr J Burrell, solicitor SOLICITORS Burrell Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr J Reilly, solicitor SOLICITORS HWL Ebsworth

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGEMENT 1 COMMISSIONER: These are three separate but related appeals relating to unauthorised building works carried out as part of the construction of a new dwelling and swimming pool pursuant to Development Consent 03/0981 granted by Sutherland Shire Council (the council) for the property at 10 McPherson Place, Illawong (the site).

2 The council's Amended Statement of Facts and Contentions contains a history of the unauthorised works. It relevantly states: During construction of the dwelling, it was noticed that unauthorised works had taken place. On 25 May 2005 Council issued to the owners a Notice of Intention to Give an Order No. 2 and on 5 September 2005, Council issued an Order No. 2 directing the owners "To demolish and remove the non-approved walls of the plant room and construct the plant room in accordance with the plans approved by Council DA03/0891"

Two separate section 96 modification applications were made to Council in respect of those works. Both were refused by Council.

Council thereafter commenced proceedings in Class 4 of the Land and Environment Court's jurisdiction, seeking a declaration that the works were unauthorised and consequential orders that the works be demolished and removed.

On 1 August 2007, orders (the Class 4 Orders) were made by the Land and Environment Court requiring demolition of a substantial part of the roof top structures. Those orders required the following works taking place, which are reflected on the plan in Appendix "A" to this Amended Statement of Facts and Contentions: 1. Lowering of the parapet around the roof edge to 750mm above the top of the first floor ceiling slab. 2.Removing those walls and areas of roof marked in hatching on the plan in Appendix "A". 3.Reducing the height of the walls marked in cross hatching on the plan in Appendix "A" to no more than 2000mm above the top of the first floor ceiling slab. 4.Removing the roof and any other associated structures which exceed a height 2000mm above the top of the first floor ceiling slab. 5.Removing all water closet plumbing connections and pipes to the roof.

On 2 October 2007 a third section 96 modification application was lodged with Council. That is the modification the subject of these proceedings. 3 Appeal No 10411 of 2008 is an appeal against the decision of the council to refuse a modification application lodged under s 96 of the Environmental Planning and Assessment Act 1979 (the EPA Act).

4 Appeal No 10746 of 2008 is an appeal against the decision of the council to refuse Building Certificate application BC07/0132 under s 149F of the EPA Act.

5 Appeal No 10683 of 2008 is an appeal against an Order under s 121N of the EPA Act to "comply with the requirements of Condition No 28 of Development Consent DA03/0981". This condition relates to the satisfaction of certain matters prior to the occupation or use of the development.

6 The agreed position was that the modification application should be considered as a first step as the findings would likely determine the findings in the other two appeals. The modification application 7 The following modifications are sought by the applicant (Exhibit A): A. Second floor (roof top level) A.1 Area - allow the lift shaft room to have external dimensions of 7.48 m x 6.09 m with an internal area of 37.9 sq m. The approved external dimensions 5.9 m x 4.6 m with an internal area of 25 sq m. The Class 4 Orders required partial demolition to allow external dimensions of the 7.48 m x 4.35 m and internal area of approximately 25.9 sq m. A.2 Height - allow the lift shaft room to 2.85 m above the roof level at the front rising to 3.17 m at the rear. The approved height is unclear and is addressed later in the judgement. The Class 4 Orders required the demolition of the existing structure over 2 m above the first floor ceiling slab. A.3 Openings - the lift shaft room was approved with a single 2.08 m high door on the south elevation. The room was constructed without the approved door but with a double set of 2.4 m wide glass sliding doors on the east elevation. The Class 4 Orders did not require any alterations to these openings. The modification application seeks a new window 2.14 m wide and 2.17 m high to provide height to the stairwell in the west elevation in addition to the retention of the existing windows. A.4 Architectural improvements - allow an architectural feature comprising an external concrete beam supported by rendered masonry columns to make the external appearance of the rooftop room more compatible with other approved architectural features of the house. A.5 Use of the lift shaft room - allow part of the rooftop area as a lift and for access via the internal stairs and lift to the roof from within the dwelling. A.6 Air conditioning room - allow the room built without approval to remain. The room has external dimensions of 2.415 m x 3.275 m, a height of 3.3 m and an external area of 7.1 sq m with access through one existing single door 2.08 m high and 0.8 m wide to remain as an air conditioning room but with the roof level reduced from 3.3 m to 2.3 m. The Class 4 Orders required the demolition of the air conditioning room. A.7 Roof terrace - allow part of the roof area for a roof terrace on two sides extending to the parapet at the front end to a planter box to the north. Provide a glass balustrade to the top of the parapet to a height of 1 m above the finished terrace level to enclose the terrace area on all other open sides. Provide a planter, 0.6 m deep and 1.35 m wide, to separate the terrace from the northern parapet. The approved use of the rooftop area is unclear and is addressed later in the judgment. A.8 Parapet - reduce the parapet as constructed, to the approved depth of 1.15 m (including slab thickness). A.9 Roof slab - allow the roof slab at the height as constructed. B. First Floor (bedroom level) B.1 Privacy screens - provide two privacy screens on each side of the front elevation to minimise overlooking of adjoining properties. B.2 Height- allow the floor to ceiling height as constructed. C. Ground Floor (living area, pool and terrace level C.1 Privacy barrier - allow a privacy barrier adjoining the pool terrace. The existing welded steel frame for a stone clad fence is to be cut back and stepped down progressively from the south-west end to the front of the pool to reduce bulk and visual impact while maintaining the privacy of the adjoining owners. C.2 Height- allow the floor to ceiling height as constructed. C.3 Openings - allow modifications in opening sizes as constructed in the north-west corner of the dining room and new sliding door in the western elevation as constructed. C.4 Toilet/shower - allow modified location of the toilet and shower and a consequent changes to kitchen, toilet entry door and window as constructed. C.5 Terrace/pool - allow for additional terrace area along south side of pool and larger front terrace and longer pool as constructed. C.6 Stabilisation of rock face - allow for modified method of stabilisation of the rock face at the rear of the house as constructed. C.7 External stair - allow for external stair to link driveway to the north side of the terrace on the ground floor as constructed. D. Basement (entry lobby and garage level) and mezzanine levels (services) D.1 Height- allow the floor to ceiling height as constructed. D.2 Excavated area - allow for enlarged excavation area and construction of additional storage space, including two smaller store rooms and shower/toilet below the services mezzanine as constructed. D.3 External stair - allow for external stair to link driveway to the north side terrace on the ground floor as constructed. D.4 Garage windows - allow for the inclusion of high-level windows above the garage door as constructed. D.5 Mezzanine space - allow for additional mezzanine space in the south part of the basement area as constructed. This area accommodates services and a rainwater tank. D.6 Stair and the lift shaft - allow for modified shape from circular to rectangular of the stair and lift shaft through the entire building as constructed. The assessment approach 8 Section 96(2)(a) requires the Court to be satisfied that the consent as modified, is substantially the same development as the development for which consent was originally granted. There was no disagreement between the parties that this requirement is satisfied.

9 Section 96(3) requires that in determining the application for modification of a consent, the Court must take into consideration the relevant matters in s 79C(1) of the EPA Act. The relevant matters are found in Sutherland Shire Local Environmental Plan 2006 (LEP 2006), particularly the zone objectives for Zone 1 - Environmental Housing (Environmentally Sensitive Land), building height objectives (cl 33(2)), building height provisions ((cll 33(3) and (4)), building density objectives (cl 34(2)), maximum gross floor area (cl 34(5)) and urban design heads of consideration for residential buildings (cl 49).

10 Sutherland Shire Development Control Plan 2006 (DCP 2006) is also relevant, particularly urban design (Chapter 3).

11 There was disagreement between the parties on the extent to which I should take into account the findings of Pain J in the Class 4 proceedings (Sutherland Shire Council v Nader [2007] NSWLEC 363, Sutherland Shire Council v Nader (No 2)[2007] NSWLEC 438 and Sutherland Shire Council v Nader (No 3)[2007] NSWLEC 469). I note that Her Honour addresses the relationship between the exercise of the Courts discretion in the Class 4 proceedings and a Class 1 merit appeal (Sutherland Shire Council v Nader, par 21). She does not accept the council's submission that the Court's discretion in Class 4 proceedings mirrors a Class 1 merit appeal by stating that she disagrees that the "Court in Class 4 proceedings should be undertaking a merits assessment as to whether alternate scheme proposed has town planning merit, however, as it would in Class 1 proceedings where that is the Court's function". 12 The judgments of Her Honour formed part of the council's bundle of documents and were referred to by the parties although mostly under objection by Mr Burrell, the applicant's solicitor. I have noted the findings of Her Honour although I have not relied on them for my assessment of the Class 1 appeals. Where I have agreed with her findings, it has been based on my assessment of the particular issue. The evidence - key issues 13 Mr Steven Layman, an architect and town planner provided evidence for the applicant. In his opinion the key issue is visual impact. Ceiling height and gross floor area are numerically non-compliant but the objectives of the standard are met despite the non-compliance. The other issues of fencing, privacy screens, impact on privacy can be dealt with by a relatively minor design changes (maintaining substantially the same development as originally approved). Mr Layman states that any inconsistency with the Class 4 Orders is not a relevant issue per se as these proceedings are to be determined on the merits of the proposed modification application.

14 The works have been largely constructed and the relationship with adjoining development can be seen by an inspection of the subject site. The matters raised by objectors largely reiterate the other issues raised by the council and do not raise any new issues that are fatal to the modification application.

15 Ms Debbie Pinfold, a town planner, provided evidence for the council. In her view, the key issues are: o the height, bulk and scale do not comply with the relevant planning standards or objectives and consequently the proposed development is out of character with the streetscape and has an adverse visual impact, o the proposal has an adverse impact on privacy resulting from the proposed use of the roof as a terrace, coupled with the increased outdoor areas at ground and first floor, o the previously mentioned impacts are greater than those that may be reasonably expected by the approved development and the impacts that may be reasonably expected under the councils planning controls. 16 Ms Pinfold considers that the inconsistency with the Class 4 Orders is a relevant consideration having regard to s 79C(1)(e) of the EPA Act that requires consideration of the public interest. Findings 17 The modification application seeks a range of modifications to the approved plans. The different modifications have different consequences, so I propose to address the modifications in the following groups using the numbering in the previous paragraphs: o the modification to the structures on the roof and the use of this area (A1 to A8), o the provision of privacy screens (B1), o the provision of a privacy barrier (C1), o the additional excavation and consequent additional floor area (C6, D2 and D5), o the garage windows (D4), and o other modifications (A9, B2, C2, C3, C4, C5, C7, D1,D3 and D6).

The roof area What was approved? 18 The council maintains that the plans approved for Development Consent 03/0981 are those in Exhibit 4. The plans comprise two sheets and are marked as having been received by the council on 16 December 2003. The two sheets also contain a notation that states "This plan has been approved under delegation by SCOTT LEE and forms part of the Development Consent DA 03/0981-DATED 29 DEC 2003-SUTHERLAND SHIRE COUNCIL". A signature appears under the date on each plan. The first plan contains a basement floor plan, a ground floor plan and a first floor plan. There is no floor plan for the roof area. The second plan provides elevations and cross sections. On the second plan, the lift shaft room is depicted as a rectangular area. It is not dimensioned but scales around 4.4 m x 5.8 m. The height is provided on the elevations through relative levels to "Top lift shaft RL 66.30" although this is clearly incorrect based on the other relative levels shown on the elevations. The scaled height is around 2.0 m above the roof floor. A single door around 2 m in height in the southern elevation provides the only access to this area.

19 The applicant maintains that the approval also includes a further plan. This was tendered as Exhibit F and contains additional details on the roof area. The lift shaft room is not dimensioned but scales around 5.0 m x 6.2 m and a height of around 2.2 m. Exhibit F also contains an additional cross-section C-C. The plan contains a similar notation to the plans identified in the previous paragraph however it is unsigned. There are additional stamps on this plan identifying the plan as a supplementary plan and being received by the council on the 14 October 2003, a stamp from an Accredited NSW HER Assessor dated 20 June 2003 and an undated stamp from Yellamo Building Certifiers Pty Ltd identifying the Construction Certificate as No 37/2004. 20 I am satisfied that the further plan provided by the applicant does not form part of Development Consent DA 03/0981 for a number of reasons. Firstly, it is unsigned whereas the two sheets relied upon by the council are signed. Secondly, the further plan contains notations that are not contained on the two sheets suggesting that the further plan may be part of the Construction Certificate approval. Thirdly, the two sheets do not identify a location for cross-section C-C, which support the position that the further plan may be part of the Construction Certificate approval. Fourthly, there are a number of inconsistencies between the Exhibit 4 and Exhibit F plans such as the size of the lift room and relative levels that again support the council's position that the further plan does not form part of Development Consent DA 03/0981. The council planning requirements 21 LEP 2006 and Zone 1 - Environmental Housing (Environmentally Sensitive Land) provide a number of relevant considerations in relation to the desired appearance of development on the site. Clause 33 provides that a building must not comprise more than 2-storeys, a height of 7.2 m, as measured from ground level to any point on the uppermost ceiling in the building and a height of 9 m, as measured from ground level to the highest point of the roof of the building. The proposal satisfies only the last requirement.

22 The objectives of the height standard seek to ensure that the scale of buildings are "consistent with the desired scale and character of the street and locality" (cl 33(2)(a)(i)), "to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion" (cl 33(2)(c)), and "to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves" (cl 33(2)(d)).

23 In more general terms, other considerations are "the extent to which the quality of the streetscape concerned will be improved by the development" (cl 49(c)) and "the extent to which any adverse impacts of the proposed development on adjoining land in terms of size, bulk, height, scale and siting will be minimised" (cl 49(e)).

Findings - the lift shaft room (A1, A2, A3, A4) 24 Mr Layman and Ms Pinfold spent a considerable time on determining the number of storeys of the approved building and the modified building. Mr Layman states that the approved building was a 4-storey building whereas Ms Pinfold maintained that it was a 2-storey building.

25 On the modified plan, Mr Layman states that the building is stepped in section and the top most storey is setback so its visual impact is minimised when viewed from the street. The dark colour of the topmost level further minimises the visual impact particularly when viewed from a distance. From neighbouring properties, the topmost storey is mostly not visible because of the angle of view and landscaping.

26 Ms Pinfold states that the modified building comprises 5-storeys when assessed under LEP 2006 and would have the appearance of a 5-storey building. The dwelling would not be consistent with the established or the desired scale and character of the street where buildings achieve a maximum 3-storey appearance from the street.

27 I agree with Mr Layman that it is largely a visual impact issue. The question to be answered is whether the additional visual impact of the modified form, when compared with the approved building form, is acceptable when considered against the desired character anticipated by the council's planning controls. With the benefit of the site view and the photo mosaics provided during the hearing, I am satisfied that the modified form of the lift shaft room is unacceptable and in conflict with the relevant objectives of the height standard in cl 33. 28 The matters identified by Mr Layman reduce the impact of the lift shaft room but not to the extent that it is acceptable. The room will clearly appear as an additional storey above the parapet due to it's increased height and width despite attempts to minimise its visual impact. The existing dwelling has the appearance of at least a 3-storey building (excluding the area on the roof), as do most dwellings on the higher side of MacPherson Street due to the steep topography. In my view, it would be inappropriate, from a streetscape and character point of view, to further add to the height, bulk and scale through the additional height and form of the modified lift shaft room. The proposed architectural feature comprising an external concrete beam supported by rendered masonry columns only exacerbates the additional height, bulk and scale and draws attention to the structure.

29 The approved lift shaft room is a benign structure with a height around 2.0 m that reflects it's functional use whereas the modified lift shaft room has features, such as increased size, height and extensive glazing, that is normally more associated with a room used as part of the residential use of a dwelling. I agree with Ms Pinfold that it was appropriate not to classify the approved lift shaft room as a storey but the same conclusion cannot be reached for the form of the modified lift shaft room.

30 For these reasons, the lift shaft room should be further modified by the removal of the roof and any other associated structures which exceed a height 2000mm above the top of the first floor ceiling slab, limiting the size to external dimensions of 7.48 m x 4.35 m and internal area of approximately 25.9 sq m. The retention of the existing windows is appropriate, as is the inclusion of the additional windows in the western elevation of the lift shaft room to provide light to the stairwell as no unacceptable impacts result from these windows with the reduced height and size of the lift shaft room described above. Findings - the air conditioning room (A6) 31 I am satisfied that the air conditioning room can remain in the location adjoining the lift shaft room but with some modification. The height, as constructed is 3.3 m and the applicant has offered to reduce this to 2.3 m. While the reduction in height will reduce its prominence when viewed from the street and adjoining properties, the height should be further reduced to 2.0 m to be consistent with the height of the lift shaft room. I note that the air conditioning room is set back further from MacPherson Place than the lift shaft room and as such is likely to be fully screened by the existing parapet from the street directly in front of the dwelling and at worst, glimpses of the structure may be available from the north-east.

Findings - the parapet (A8) 32 The modification application seeks to reduce the height of the existing parapet to 1.15 m (including floor slab) as shown on the approved plans. This provides for a reduction in the height by some 0.2 m (by scale). Notwithstanding the agreement by the applicant to reduce the height of the parapet, Mr Layman states that this reduction is unnecessary as the reduced height diminishes the ability of the parapet to screen any structures on the roof.

33 I agree with Mr Layman on this issue. The parapet, as constructed at around 1.35 m, is not an unacceptably heavy or a dominant feature of the building when viewed in the streetscape. It is a reasonably proportioned horizontal element that appropriately defines the height of the building but without overpowering the building. For this reason, I see no reason why it should not remain and contribute to the screening of the structures on the roof level. The specific finding that the use of the roof area is not to be used as a terrace removes any argument that the parapet height could be seen as a defacto approval for the use of this area as a terrace (see pars 33 to 36)

Findings - the use of part of the roof area as a terrace (A7) 34 Ms Pinfold states that the approved rooftop structure comprised a stairwell and lift overrun, which extended above the roof level but did not service any additional floor space at roof level. The enclosing structure essentially houses a void containing a stairwell that provides access to the roof and a void for the lift shaft and as such did not constitute an additional floor level. While there was stair access to the roof, there was no lift access to the roof (as shown on cross-section C-C).

35 Ms Pinfold's conclusions were not necessarily accepted by the applicant however the weight of evidence associated with the approval, in my view, clearly supports the conclusion that the approval did not extend to the use of the rooftop area as a terrace or any other use associated with the residential occupation of the dwelling. The absence of a floor plan for this area is more likely to support a conclusion that the roof area had no purpose beyond that of a roof. I also agree with Ms Pinfold that the approved 2 m height of the lift shaft room and the limited access via a single door further supports the conclusion that the approved plans did not contemplate lift access to the roof area. 36 The modification application seeks to use part of the rooftop area as a terrace. The area available for the use of residents is limited to an area of some 40 sq m (including some areas of limited dimensions) through the construction of a planter box and non-accessible areas. These areas are to restrict access to protect the amenity of adjoining properties.

37 As I understand, there was a general agreement between Mr Layman and Ms Pinfold that by restricting access to certain areas on the roof an acceptable level of protection for adjoining properties is provided if maintained in the manner proposed although Ms Pinfold still maintained her objection to the use of this area as a terrace. Notwithstanding the applicants proposal to limit the use of this area, I am not satisfied that it should be used as a terrace for a number of reasons. Firstly, the acceptability of the area relies totally on compliance with measures proposed by the applicant and while I must assume that there will be compliance; any non-compliance, whether by chance, lack of supervision or lack of knowledge of the reasons for the restrictions, could impact significantly on the amenity of the adjoining properties. Secondly, policing of the requirements by the council would be very difficult, particularly for spontaneous occurrences. Thirdly, the available area on the roof is relatively small when compared to the particularly large areas available on the decks on the lower two levels. Fourthly, the roof area does not provide any views that are currently not available from the lower two level terraces (see the planning principle in Super Studio v Waverley [2004] NSWLEC 91). Fifthly, the occupation of the roof area gives the impression of an additional level of occupation for the dwelling. Sixthly, roof top decks are not a feature of residential development in the area and as such the proposed rooftop deck would be an uncharacteristic feature of the locality. Seventhly, the modification application provides additional area to the principal terrace located on the ground floor level by extending the frontage of the terrace by some 1 m. Findings - privacy screens (B1) 38 Two new privacy screens are proposed on each side of the front elevation of the first floor level. As I understand the evidence of Mr Layman and Ms Pinfold, these screens are unnecessary and as such can be deleted. I agree with their conclusions. Findings - privacy barrier (C1) 39 There is no doubt that a privacy screen between the pool deck area and the adjoining property is required. A metal-framed structure is currently partly constructed to provide for a stone clad fence. The modification application seeks to cut back the metal-framed structure and step this structure progressively down from the southwest end to the front of the pool to reduce bulk and scale. I accept that, in principle that this is an appropriate course of action although I am not satisfied that sufficient detail has been provided with the modification application to properly assess the impact of the fence on the adjoining property.

40 As further plans are required to address the other issues raised in this appeal, greater details should be provided on the amendments to the fence, including the different heights of the fence when stepping down the site when viewed from the pool terrace and from the adjoining property. Also, the treatment of the fence when viewed from the adjoining property should be provided. Findings - excavation and additional floor area (C6, D2, D5) 41 Additional excavation was carried as part of the construction of the dwelling that allowed additional floor area to be created. This area is used largely for storage, the construction of a rainwater tank, a shower and some small areas used in conjunction with the dwelling. At the time of approval, Sutherland Shire Local Environmental Plan 20006 (LEP 2000) applied. The relevant FSR requirement was 0.4:1 which provided a permissible gross floor area of 395.48 sq m. The current planning control is LEP 2006 and while the FSR requirement is the same, the method of calculation has varied through the definition of gross floor area. The essential difference is that LEP 2000 measures the gross floor area to the external face of the enclosing walls whereas LEP 2006 measures the gross floor area to the internal face of enclosing walls. For the purposes of this s 96 application the difference is not that significant. Under LEP 2006 Miss Pinfold calculates the gross floor area to be "at least 542 sq m".

42 Even though the additional floor area created by the unauthorised excavation is relatively large in quantitative terms, its use is limited to largely storage. I agree with the evidence of Mr Layman and Ms Pinfold that the additional floor area to the rear of the approved garages level does not contribute to the bulk of the building and providing the majority of this area (as shown on Exhibit A) is continued to be used for storage purposes only I accept that this part of the modification application, including the modified method of stabilisation of the rock face, is acceptable.

Findings - the garage windows (D4) 43 The modification application provides for high-level windows above the garage door whereas the approved plans provide solid construction above the garage entry door and the floor slab above. Mr Pinfold states that the use of windows gives the impression of an additional storey further exacerbating the bulk and scale of the proposed development. Mr Layman comes to the opposite conclusion and states that the windows provide light and ventilation to the garage area.

44 In my opinion, the windows do not add in any meaningful way to the bulk and scale of the building given that the area in question is not significantly different between the approved application and the modification application. Consequently, the windows can remain. Findings - minor modifications (B2, C2, C3, C4, C5, C7, D1, D3 and D6) 45 The modification application contains a number of other modifications that are identified in the previous paragraphs. I have considered each of these modifications and consider each to be minor and have no significant impact that would warrant their amendment or refusal.

Summary of findings on the s 96 appeal 46 The following is a summary of the findings: o the use of the roof area for a terrace is refused, o the lift shaft room is to be reduced to a maximum of 2 m in height, external dimensions 5.9 m x 4.6 m with an internal area of 25 sq m, o the existing glazing can remain and the proposed glazing to the lift shaft room can be provided subject to the reduced area of the lift shaft room (see above), o the air-conditioning plant room can remain but reduced to a maximum of 2 m in height, o the parapet height can remain, as constructed, o the privacy screens on the first floor level can be removed, o further details on the privacy screen between the pool deck area and the adjoining property are required, o the additional excavation and floor area can remain subject to the uses as shown in Exhibit A, o the windows above the garage entry can remain, and o the other modifications are acceptable.

Directions 47 The Interim Findings are provided on 14 January 2009 to the parties to allow for the preparation of amended modification plans that reflect the findings in this judgement. Directions will be made for the filing and serving of the amended modification plans, following discussion between the parties.

48 As the Interim Findings address only the s 96 modification appeal, the disposal and appropriate orders for the remaining two appeals will flow from the future progress of s 96 modification appeal. The parties are to provide agreed orders for the disposal for these appeals. If no agreement can be reached, liberty is granted to restore the matters on 48 hours notice.

49 A further Mention was held on 23 February 2009 to clarify the Interim Findings and with directions for the filing of agreed orders by 25 February 2009. The agreed orders for Appeal No 10683 of 2008 and Appeal No 10746 of 2008 were filed on 25 February 2009 and the agreed orders for Appeal No 10411 of 2008 and conditions were filed on 3 March 2009. Orders 50 The Orders of the Court for Appeal No 10411 of 2008 are: 1. The appeal is upheld in part. 2. Development consent No 03/0981, issued by the Council on 29 December 2003, is modified by the deletion of condition 1 of that consent, and its replacement by conditions 1, 1A and 1B in the conditions at Annexure A to these orders, being development consent No. 03/0981 as modified. 3. No order as to costs. 4. The exhibits are returned. 51 The Orders of the Court for Appeal No 10683 of 2008 are: 1. The appeal is dismissed. 2. No order as to costs. 52 The Orders of the Court for Appeal No 10746 of 2008 are: 1. The appeal is dismissed. 2. No order as to costs.

      G T Brown
      Commissioner of the Court

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