Rebel MH Neutral Bay Pty Ltd v North Sydney Council

The site

1. As earlier noted, the site comprises 14, 16, 16A and 16B Thrupp Street. Between them, these allotments have a frontage of approximately 41.2 metres to Thrupp Street. The site has a southern boundary length of 38.4 metres, a western boundary length of 38.8 metres and a northern boundary length of 40.24 metres. Being generally rectangular in shape (with a small excision in the north-western corner), the site has an area of 1,706.5 square metres. The site has a fall of 4.71 metres, from the northern boundary to the southern boundary, over the 41.2 metres between these two boundaries.
2. The nature of the form of the site as it slopes downward, particularly at its Thrupp Street frontage, requires further consideration later in this decision.

The site inspection

1. The hearing commenced, as is customary in Class 1 merit appeals, with an inspection of the site; its surrounding local streetscape context; and visits to a number of properties said by the Council to be adversely impacted by the proposed development. These properties include a locally listed heritage item at 18 Thrupp Street, the property immediately to the north and uphill from the four allotments comprising the site.
2. During the course of the site inspection, I was accompanied by Mr T Hale SC, counsel for the Applicant, and Mr P Larkin SC, counsel for the Council, and those advising and instructing each of the advocates.
3. As is also customary, during the course of the site inspection, I heard evidence given informally by a number of persons objecting to the proposed development. That evidence was given both on the front lawn of 16A Thrupp Street, as well as in the residences of a number of objectors. These aspects of the site inspection are described in more detail below.
4. As well as walking through the site to obtain an impression of the view from within the site toward an apartment block accessed from Aubin Street, where I visited two apartments owned by objectors, I also walked along Thrupp Street, to the north, in order to obtain an on-site appreciation of the context of some of the architectural and urban design evidence (both documentary and oral) later engaged in the proceedings.
5. I also walked to the south of the site, along Thrupp Street and turning into Aubin Street, to access the apartment block at the rear of the site. This apartment block (62 Aubin Street) is accessed along a battle-axe handle running from Aubin Street.
6. There are six specific matters from the site inspection that warrant being observed. These are: 1. I visited the apartment of Mr and Ms Wallis located on the top level of 11 Thrupp Street, directly opposite the site. Mr Wallis took me to several windows at the western end of his apartment to explain his objections to the proposed development. The specific matter warranting being noted was that his concerns included the impact that the proposed development would have, as a consequence of its height, on the views from several windows of his apartment, with those views being to the west or south-west toward and beyond the site. These view concerns resulted in further responsive photographic analysis evidence on behalf of the Applicant, as later discussed in more detail; 2. Second, although the potential impact on views from 13 Thrupp Street (an apartment block on the south-eastern corner of the intersection of Harriette and Thrupp streets), none of the written objections from persons residing in 13 Thrupp Street raised the issue of view loss from their apartment. Subsequently, although the Council was afforded the opportunity to seek to press this potential view loss as a contention in the proceedings, it did not do so; 3. Located to the rear of the site, at approximately its midpoint adjacent to its western boundary, is a substantial Camphor Laurel tree, a tree on 62 Aubin Street. This tree, although filtering the sunlight available to apartments in the Aubin Street development (as described below), nonetheless, contributes significantly to the vegetated outlook from those apartments. Similarly, the Camphor Laurel is visible from the Wallis apartment (as are several palm trees beyond the site). These three trees contribute to a western‑oriented element of the outlook from Mr and Ms Wallis's apartment by providing an attractive, local vegetated view (with the Camphor Laurel being able to be seen from this apartment over the top of the existing development on the site); 4. The separation of the existing development on the site, at its northern edge, is 2.29 metres from its boundary with the local heritage item at 18 Thrupp Street. That local heritage item (giving rise to an element of the Council's contentions opposing the proposed development) is, itself, setback 1.3 metres from this boundary. Although the heritage item at 18 Thrupp Street has its eastern facade addressing Thrupp Street as its street frontage, it was originally constructed with an expansive landscaped curtilage sloping to the south (including encompassing the site of the proposed development), and the building itself was constructed so that its primary façade was oriented to the south (at right-angles to what subsequently became Thrupp Street) in order to take advantage of the available views and aspect towards Sydney Harbour; 5. The development elements that exist on the site have been constructed through a benching process to provide building platforms for them. Although these building platforms step down the site toward Aubin Street, they nonetheless represent modification of what would have been the natural landform of the site (a matter also engaged by the terms of the North Sydney Local Environmental Plan 2013 (the LEP) and giving rise to another of the Council's contentions; and 6. The two apartments visited in Aubin Street, in the complex to the direct rear of the site, were ones with their living spaces in their south-eastern corners, with their more attractive aspects being through the fenestration on their eastern wall in each instance. These windows received the limited, filtered solar access to these living spaces and enjoyed the existing outlook toward the existing vegetation, primarily the Camphor Laurel tree.

The planning controls

1. The relevant planning controls applicable to the site, for the purposes of my consideration of this development application, are contained in the LEP and in the North Sydney Development Control Plan 2013 (the DCP). The site is zoned R4 High Density Residential under the LEP. Residential flat buildings (that being the nature of the development for which consent is sought) are permissible within this zone.
2. However, for reasons later discussed, it is necessary to consider the objectives for the R4 High Density Residential Zone set out in the Land Use Table in the LEP. The objectives for this zone are in the following terms: Zone R4 High Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage the development of sites for high density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area. • To ensure that a reasonably high level of residential amenity is achieved and maintained.
3. The maps that are incorporated in the LEP, by reference, include a Height of Buildings Map which has the effect of establishing what is the relevant development standard for building height on this site. The provision in the LEP dealing with the height of buildings is cl 4.3, a provision which plays a prominent path in the matters in dispute between the parties concerning the acceptability, or otherwise, of the Applicant's proposed development. This provision is in the following terms: 4.3 Height of buildings (1) The objectives of this clause are as follows: (a) to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient, (b) to promote the retention and, if appropriate, sharing of existing views, (c) to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development, (d) to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings, (e) to ensure compatibility between development, particularly at zone boundaries, (f) to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.
4. At this point, it is sufficient to observe that the combination of cl 4.3 and the Height of Buildings Map imposes a maximum building height of 12 metres above actual ground level for this site.
5. However, despite the 12-metre height limit applicable to the site, the LEP provides, in cl 4.6, a process by which an applicant can request dispensation from compliance with, amongst other things, the height limit applicable to any proposed development site. This provision relevantly provides, at subcll (1) to (4): 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained.
6. The Applicant has provided a written request (in Exhibit J), for the purposes of my consideration pursuant to cll 4.6(3) and (4), seeking a dispensation from compliance with the height limit which would otherwise be applicable to this site.
7. At this point, it is sufficient to make two observations. First, the request seeking to support dispensation from compliance with the height limit underwent revision during the course of the hearing, so that the form, which falls to be considered in this decision, is that which became Exhibit J in the proceedings. Second, it is appropriate to observe that cl 4.6(7) requires that the steps undertaken by me, in my capacity standing in the shoes of the Council, in assessing this cl 4.6 statement, are required to be recorded as I do so. The later portion of this judgment, dealing with Exhibit J, satisfies the requirements of this element of the provision.

The evidence

1. I have earlier set out the nature of the evidence given by the objectors during the course of the site inspection.
2. During the course of the Court hearing, concurrent oral evidence was given by:

• Mr Peter Smith, urban design expert for the Council;
• Mr Geoff Bonus, urban design expert for the Applicant;
• Mr Luke Donovan, town planner for the Council; and
• Mr Brett Brown, town planner for the Applicant.

The urban designers' refinements

1. As a result of the joint conferencing process, the urban designers agreed on a number of refinements to the design. These refinements had the effect, relevant to the uppermost level, of shortening the length of the built form by retreating slightly to the north at its southern end. This change, together with alterations to the balcony presentations forming what was described, for the Applicant, as "the three pavilion effect" in the streetscape, were incorporated in revised plans which became Exhibit K.
2. These alterations resulted in an agreement by the urban designers that, from a design perspective, this revised proposal was acceptable. However, these changes did not resolve the town planning matters pressed by the Council, and Mr Donovan was of the opinion that the revised design remained unacceptable.

Building envelopes

1. The LEP prescribes standards for the maximum floor space ratio; minimum subdivision lot size; and height of the development that is capable of being permitted for the site. This has the effect of defining a building envelope capable of being granted development consent without the requirement for any dispensation pursuant to cl 4.6 of the LEP for non-compliance with any development standard. It is to be observed, however, that such a building envelope is a maximum and not an entitlement.
2. Consideration of the extent to which development will be permitted within such a maximum building envelope is tempered by other considerations arising from matters such as the objectives of the zone; any issues arising out of specific provisions in the LEP relating to, for example, heritage matters; and the fine-grained controls set out in the DCP.
3. There is no entitlement to achieve the maximum development potentially able to be approved having regard to the development standards in the LEP. In this regard, comments made in the cl 4.6 request, and in the oral evidence concerning it on behalf of the Applicant, require subsequent examination.

Views from the units in 68 Aubin Street

1. Although the residents of the two apartments in 62 Aubin Street visited during the site inspection expressed concerns about the extent to which they would be "walled in" by the length of an unbroken development on the site, I am unable to accept that this fear (one which I accept is likely to be realised by a redevelopment of the site) arises as a consequence of the exceedences of the height standard in cl 4.3 of the LEP.
2. Although, at the present time, there is a corridor through the site between 62 Aubin Street and Thrupp Street (a corridor which, at present, avoids there being a perception of continuous north-south development across the four allotments which comprise the site), it is, nonetheless, the position that a development proposal for this consolidated site (compliant with the height control) would reasonably be expected to present an articulated but unbroken development at its western façade towards 62 Aubin Street.
3. As a consequence, although there would be a perception of being "walled in" for these residents, if this development proposal was to be approved, I am satisfied that this does not stand as an impediment to its approval.
4. This is a consequence of the fact that such an outcome is to be regarded as a likely consequence of any redevelopment across a consolidation of the allotments comprising the site.

Presentation in the streetscape

1. As the presentation of the additional height of the development proposal in the Thrupp Street streetscape remained a matter which, in Mr Donovan's opinion, was unsatisfactory and warranted refusal of the request to be permitted to breach the 12-metre height limit, the Applicant relied upon two exhibits to demonstrate what would be observable if the proposed development was constructed.
2. It is appropriate to note, first, that which was shown in the photo montages (Exhibit M). These photo montages depicted the proposed development from three locations in Thrupp Street. These photo montages satisfied the requirement of the Court's Practice Direction for the preparation of such images. It is to be observed that, however, the most northerly point from which these depictions were representing the proposed development was directly opposite the site, as if the viewer was on the eastern footpath of Thrupp Street.
3. Each of these three photo montages demonstrate that the mansard roof's uppermost level would not be able to be observed in the public domain from these three points.
4. The second depiction of the development was contained in Exhibit F, a document containing a series of A3 schematic depictions of the proposed development (amongst other things).
5. Three particular folios in Exhibit F warrant observation. They were the images at pages 17, 18 and 19. The first of these depicted the shape of the proposed development, in its streetscape context, when viewed from locations to the north.
6. The second depicted the shape of the proposed development, in its streetscape context, when viewed from the eastern footpath of Thrupp Street at its intersection with Harriette Street. The third depicted what would be observed from a point further to the north, above Harriette Street, when observing from the eastern footpath of Thrupp Street and looking southward.
7. The second of these images (reproduced at Annexure A) clearly shows the extent to which the mansard roof element of the proposed development would be visible from the public domain on the corner of Thrupp Street and Harriette Street.

The elements of the height control pressed by the Council

1. I have earlier set out the full terms of cl 4.3 of the LEP. Not all of them were pressed by the Council as requiring consideration in my assessment of the cl 4.6 request seeking the dispensation from requirement with the 12-metre height limit applying to the site. However, the Council put that the cl 4.6 request did not demonstrate that the breach of the height standard was consistent with three of the objectives of the provision (cl 4.3) that established the standard.
2. The three elements of the clause relied upon by the Council are in the following terms: 4.3 Height of buildings (1) The objectives of this clause are as follows: (a) to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient, (b) to promote the retention and, if appropriate, sharing of existing views, (c) …, (d) …, (e) …, (f) to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area.

The revised cl 4.6 request

1. On 1 August 2018, a bundle of material was filed on behalf of the Applicant comprising a revised request pursuant to cl 4.6 of the LEP and relevant supporting documentation. These documents became Exhibit J. There are a number of aspects of Exhibit J which require analysis as part of my cl 4.6 request assessment.

The need for a cl 4.6 request

1. The Applicant's cl 4.6 request was authored by Mr Brown, the Applicant's consultant town planner. As earlier noted, the request was a revised document which had become Exhibit J. The introduction to the request explains why it is necessary, doing so in the following terms: Clause 4.3 of the LEP and the relevant map indicates that the site is subject to a height control of 12m. The proposal achieves a maximum height of RL57.65m. As the site slopes moderately from north to south this results in varying degrees of non-compliance. The non-compliance ranges from 0.4m (a 3% variation) to 3m (a 25% variation).

Satisfaction of the elements of cl 4.6 is jurisdictional

1. The determination of the request pursuant to cl 4.6 of the LEP and the reaching of the conclusion that the request should be sustained is jurisdictional. It is the written request that requires to be assessed and the written request is not modified by any oral evidence given which might seek to explain it. Even if this is not correct, the oral evidence concerning matters of entitlement, although not analysed in detail, did not resile from the matters later dealt with in the terms set out in the request itself (Exhibit J).
2. Without the reaching of the necessary elements of satisfaction mandated by each of the tests in cl 4.6(4)(a) and (b), there is no jurisdiction to undertake a general merit assessment of the overall development proposal pursuant to s 4.15 of the Environmental Planning and Assessment Act 1979 (the EP&A Act). If any of the multiple jurisdictional gates mandated to be opened by the provision remain closed (because the cl 4.6 request has not established a proper basis for each of them to be open), the proposed development must be rejected.

The framework for assessing a cl 4.6 request

1. In his recent decision in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action), Preston CJ addressed the decision‑making approach to be undertaken by a consent authority when assessing the adequacy of a request for a dispensation from compliance with a development standard in a local environmental plan. The power to grant such a dispensation is given by cl 4.6 of a local environmental plan. Clause 4.6 is a standard provision in local environmental plans throughout New South Wales. It takes a common form which his Honour set out, at [8], and as I also have, relevantly, earlier at [17].
2. His Honour set out (between [5] and [29]) a comprehensive analysis of the approach to be taken to determining a request made pursuant to cl 4.6.
3. For me to grant development consent for this development as it contravenes the permitted maximum building height development standard, cl 4.6(4)(a) requires me to be satisfied that: 1. The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of this proposed development (cl 4.6(3)(a) and cl 4.6(4)(a)(i)); and 2. The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)); and 3. The proposed development will be in the public interest because it is consistent with the objectives of the standard in question - set out in cl 4.3 of the LEP (cl 4.6(4)(a)(ii)); and 4. The proposed development will be in the public interest because it is consistent with the objectives of the R4 High Density Residential Zone (cl 4.6(4)(a)(ii)),
4. For the first of the above matters, Preston CJ made it clear, in Initial Action at [25], that the Court need not be directly satisfied that compliance is unreasonable or unnecessary and sufficient environmental planning grounds exist, but rather that it "only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed" those matters.

Introduction to assessing the present cl 4.6 request

1. In this instance, the Applicant seeks, using a cl 4.6 request, to be freed from compliance with the maximum height limit for the site established pursuant to cl 4.3 of the LEP. I later address the question of whether or not this request provides a satisfactory basis to grant the dispensation sought. For the present, it is sufficient to note that there are a number of gateways in cl 4.6(4) as outlined earlier.

Introduction

1. In Initial Action at [15], Preston CJ set out precisely how the tasks in cl 4.6(4)(a)(ii) are to be approached: 15 The first opinion of satisfaction, in cl 4.6(4)(a)(i), is that the applicant's written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request needs to demonstrate both of these matters.
2. Preston CJ also observed, in Initial Action at [25]: 25 The consent authority, or the Court on appeal, must form the positive opinion of satisfaction that the applicant's written request has adequately addressed both of the matters required to be demonstrated by cl 4.6(3)(a) and (b). As I observed in Randwick City Council v Micaul Holdings Pty Ltd at [39], the consent authority, or the Court on appeal, does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3)(a) and (b), but only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b). The applicant bears the onus to demonstrate that the matters in cl 4.6(3)(a) and (b) have been adequately addressed in the applicant's written request in order to enable the consent authority, or the Court on appeal, to form the requisite opinion of satisfaction: see Wehbe v Pittwater Council at [38].

The requirements of cl 4.6(4)(a)(i) - first and second elements

1. These elements of cl 4.6 require me to consider whether the request adequately addresses:

• why "compliance with the development standard unreasonable or unnecessary in the circumstances of the case?"
• whether "there are sufficient environmental planning grounds to justify contravening the development standard?"

1. The cl 4.6 request has, for the purpose of these tests, relied on an inference of entitlement to floor space and the assertion, expressly or by necessary inference, that that floor space forgone if the exceedence was not permitted, would be required to be relocated elsewhere in a revised development.
2. I have earlier explained why there is no automatic entitlement to develop to the full extent potentially permitted by the application of all the relevant planning controls applicable to a site. In this instance, a building envelope is able to be identified, having regard to the applicable controls that apply to the site. However, as earlier explained, there is no entitlement to develop to the full extent of this identified building envelope. The building envelope is merely a target, a target which is subject to other planning constraints needing to be assessed in the particular circumstances of this site and matters arising from, and with respect to, the interaction between the site and neighbouring development (particularly the heritage item to the north); relevant applicable provisions of the LEP; and relevant applicable provisions of the DCP.
3. However, in the cl 4.6 request, there are express and inferential assertions of entitlement to develop rather than a reflection of the more nuanced and discretionary interaction between a building envelope and a development proposal.
4. On page 6 of Exhibit J, in dealing with objective (e) of clause 4.3 of the LEP, the cl 4.6 request says: This objective also gives rise to "Test 3" of Wehbe. In this regard, if compliance was enforced, a considerable amount of floor space would be lost and would have to be accommodated elsewhere [emphasis added].
5. The relevant test from Wehbe (Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827) was set out on page 2 of Exhibit J in an extract from a departmental guide. I do not turn to the terms of the decision in Webhe itself, simply to quote that to which reference is made by the author of the cl 4.6 request. The third Wehbe test, as summarised from this source, is: The underlying objective or purpose would be defeated or thwarted if compliance was required, and therefore compliance is unreasonable.
6. The assertion that floor space at the uppermost level currently proposed in breach of the height control would have to be accommodated elsewhere, by using mandatory language, asserts an entitlement to achieve, elsewhere, in development on this site the floor space lost if the height limit breach was not condoned is an impermissible assertion of entitlement.
7. As consequence of the fact that there is a cl 4.6 request for dispensation from compliance with the 12-metre height limit arising from cl 4.3 of the LEP and the Height of Buildings Map means that other merit matters concerning design or the relationship of the proposed development with the heritage item to the north do not require to be addressed, if the request fails.
8. As is also noted on page 6 of Exhibit J, a little below the comments dealt with above, the cl 4.6 request addresses the relationship between the proposed development and the heritage item to the north by saying: It is noted that the current heritage consultant, Mr Paul Rappaport supports a reduced building setback to the heritage height, but is also of the view that the proposed setback is a better outcome in relation to the heritage item. I also believe that the proposal will better achieve the objective to ensure compatibility between development which in this case is a heritage item. Enforcing compliance (or greater compliance) with the LEP height control would partly thwart achieving the objective of achieving compatibility.
9. Necessarily implicit in this assertion is adoption of the proposition earlier quoted that lost floor space would have to be accommodated elsewhere.
10. In addressing cl 4.6(3)(b), the cl 4.6 request says (Exhibit J, page 11): Clause 3(b) - whether there are sufficient environmental planning grounds to justify contravening the development standard Clause (3)(b) - whether there are sufficient environmental planning grounds to justify contravening the development standard In addition to the above the following comments are made. Compliance would result in poorer planning outcomes Requiring a compliant (or more compliant) building would require the setbacks provided to the north to be revisited, potentially resulting in a less beneficial outcome in relation to the adjoining heritage item and greater overall visual bulk when viewed from Thrupp Street. Lack of impact Those parts of the building that are non-compliant with the height control have greater than required setbacks to the site boundaries and do not create any adverse amenity impacts compared to a complying development. Council has not raised any issues regarding the impact of the non-complying part of the building on the amenity of adjoining properties. In terms of visual impact, the overall visual bulk will be that of a 3-4 storey building as the top level will not be generally visible from the public domain. Where it is marginally visible (higher up Thrupp Street), only part of the roof is evident (see Photomontages at Attachment G). Therefore the visual scale is consistent with the character of the area. Further, the visual bulk is comparable (and potentially less) than that which could be achieved by a fully compliant building. As indicated above, the Council's heritage requirements mean that the highest part of the site cannot be fully utilised. Absent the Council's heritage issue, complying development within this part of the site would have similar (if not greater) visual impacts to the proposal. In view of the above it is considered that there are sufficient environmental planning grounds, specifically related to the subject site, that warrant contravention of the height standard.
11. As can be seen, the assertion that requiring compliance would require the setbacks provided to the north to be revisited also inferentially asserts that the loss of the floor space proposed by the exceedences of the height control would require revisiting of the setbacks to the north (and not having regard to the heritage reasons why the setback to the north had been adopted) also reflects an attitude toward the building envelope potential of the site that does not recognise the impact of other planning constraints engaged for consideration by s 4.15 of the EP&A Act.

Conclusion on cl 4.6(4)(a)(i)

1. The Applicant's cl 4.6 request does not adequately address the requirement of cl 4.6(3)(b) because it is founded on invalid assumptions as to why compliance is unreasonable or unnecessary or what constitutes proper "environmental planning grounds" to justify the breach. Using assumptions of entitlement of development yield without regard to the full range of constraints requiring consideration cannot constitute adequate addressing of the required matters.

Introduction

1. In Initial Action, at [26] and [27], Preston CJ also set out precisely how the tasks in cl 4.6(4)(a)(ii) are to be approached (emphasis added by me): 26 The second opinion of satisfaction, in cl 4.6(4)(a)(ii), is that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out. The second opinion of satisfaction under cl 4.6(4)(a)(ii) differs from the first opinion of satisfaction under cl 4.6(4)(a)(i) in that the consent authority, or the Court on appeal, must be directly satisfied about the matter in cl 4.6(4)(a)(ii), not indirectly satisfied that the applicant's written request has adequately addressed the matter in cl 4.6(4)(a)(ii). 27 The matter in cl 4.6(4)(a)(ii), with which the consent authority or the Court on appeal must be satisfied, is not merely that the proposed development will be in the public interest but that it will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out. It is the proposed development's consistency with the objectives of the development standard and the objectives of the zone that make the proposed development in the public interest. If the proposed development is inconsistent with either the objectives of the development standard or the objectives of the zone or both, the consent authority, or the Court on appeal, cannot be satisfied that the development will be in the public interest for the purposes of cl 4.6(4)(a)(ii).

The first requirement of cl 4.6(4)(a)(ii) - consistency with the standard's objectives

Introduction

1. The Council pressed that the proposed development was not consistent with three of the objectives of cl 4.3 of the LEP. These objectives are in the following terms: 4.3 Height of buildings (1) The objectives of this clause are as follows: (a) to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient, (b) to promote the retention and, if appropriate, sharing of existing views, (c) …, (d) …, (e) …, (f) to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area

The extent of the height exceedence of the revised design

1. The image (labelled Figure 1 in Exhibit J) reproduced immediately below shows the extent to which the final design proposal breaches the height control of the maximum height above ground level of 12 metres. As can be seen from the image, virtually the whole of the mansard roof level, and a significant portion of the upper structure of the level below it, are above the orange line generally representing the 12-metre height limit.

Objective (a) of cl 4.3

1. The revised cl 4.6 request incorporated two diagrams which require consideration as part of the assessment as to whether the cl 4.6 request has satisfied cl 4.6(3)(a) and (b) by adequately addressing objective (a) of the height control in cl 4.3 of the LEP (it being my view that Mr Brown has simultaneously addressed cl 4.6(3)(a) and (b) in the extracts from Exhibit J later quoted).
2. Figure 1 in Exhibit J shows the stepping (orange line) of the 12-metre height following the present ground level.
3. The second diagram (labelled Figure 2 in Exhibit J) shows what Mr Brown, the author of the cl 4.6 request, proposes should be regarded as what would have been the predevelopment natural ground level (seen from the black shading below). His hypothesis of what, as a consequence of adopting that line, would have been the plane (depicted by a red line) of a 12-metre limit above it does not require consideration as the above diagram represents the agreed position for this consideration. This second diagram is reproduced below:
4. Mr Larkin submitted that this depiction of a uniformly sloping, hypothesised natural ground level is purely speculative, as there is no evidence whatsoever to support it. However, although there is no evidence of what might have been the pre-European landform of the site, the question of whether the exceedence of the height standard can be regarded as constituting "stepping development on sloping land to follow the natural gradient" can be addressed by having regard to the dark shading as a reasonable "best guess" approximation of what is required.
5. In this context, I turn to what Mr Brown wrote at page 3 of Exhibit J concerning the slope of the land. He wrote: Comment - The site slopes moderately from North to South, falling over 6 m (equivalent to 2 levels). As can be seen at Figure 1 the existing ground level steps are two main locations (orange line). These levels result from the terracing of the land to accommodate the 3 existing 2 storey buildings on the site. The proposed building steps down the slope in a manner that is generally consistent with the steps in the land form ie there are two primary steps in the building (green line). However, it is noted that the stepped ground plane is modified and not the 'natural' slope. The red line shown on the drawing at Figure 2, indicates the presumed natural slope of the land. Inspection of the property appears to indicate that retained areas relate to the expert evasion, not the filling, of the land. In this relation to this 'natural ground' line, the level of non-compliance is further minimised. Figure 2 also shows that that part of the building above the height limit (as it relates to natural ground)(shown shaded red) is balanced by parts of the building below the height line (shown shaded blue). This demonstrates that the approach taken to the 'stepping' of the building is well considered and reasonable. The main area of non-compliance relates to whether the top level extends to the south of the uppermost 'step' in the levels. Whilst the top storey can be made more compliant with the stepping, it is considered that heritage issue should take precedence in this case and therefore, increasing the non‑compliance results in a better outcome (this is discussed further below).
6. Although not in express terms, the final paragraph, by invoking what is said to be the beneficial outcome with the heritage building at 18 Thrupp Street when coupled with the comparative non-compliance with the assumed natural ground level (not unreasonable as I have previously noted) as distinct to the height control, shows the proposal can be regarded as consistent with this objective of cl 4.3 of the LEP.

Objective (b) - Impact on views

1. To frame what follows, it is appropriate to repeat the terms of this objective. It reads: (b) to promote the retention and, if appropriate, sharing of existing views
2. At page 4, Exhibit J addresses the question of the relationship between the proposal and objective (b) of cl 4.3 of the LEP. After some introductory remarks, ones relevantly accepting that the middle window in the middle room of the western side of the Wallis apartment was considered to be representative of the impact on the views from all three rooms on this side of the apartment (although Exhibit J refers to the eastern side of the Wallis apartment, this is quite clearly a transpositional error). Exhibit J then continues: The impact of the proposal is considered in the following assessment based on the principles outlined in Tenacity. The first step is the assessment of views to be affected. It is a partial view generally of Milsons Point skyline, affected by building and vegetation in the foreground. The larger building near the palm trees appears to be a building at the end of Pile Place at Kirribilli. The approximate view corridor of the view is shown on a marked up aerial photograph at Attachment C. It is noted that the apartment will retain views of the skyline from the living room and views of the skyline and Harbour Bridge from the south facing bedroom window (window 'a') (see Attachment D). The second step is to consider from what part of the property the views are obtained. The view impact assessment relates to a bedroom being used as a study. The view is an oblique view over the front boundary, across Thrupp Street and over the site towards the buildings of Milsons Point and beyond. The view shown is a standing view and due to the viewing angles, the impact from a sitting position would not be significantly different. The third step is to assess the extent of the impact. As indicated in attachment B, the impact is limited to a small part of the skyline of Milsons Point (and the Pile Place building). The impacts from other rooms on the eastern elevation are similar. The view from the south facing window of the bedroom (including the Harbour Bridge) would be predominantly unaffected. The fourth step is to assess the reasonableness of the proposal that is causing the impact. As can be seen in Attachment B, the only part of the building breaches [sic] the height control and potentially affects views is the southern end of Level 3. However, as can be seen, this part of the view was already blocked by existing vegetation. The overall impact of the proposal on the view, is considered to be minor and not unreasonable. It is noted that the proposed top level does not result in any view loss. Having regard to the negligible impact of the proposal on the views from the subject dwelling, that significant views will be retained (including iconic views of the Harbour Bridge), and that the additional height does not contribute to the impacts, the proposal will achieve the height objective to promote retention and sharing of views.
3. Mr Hale addressed the question of view impact in his written submissions in reply the following terms: Impact on views and the proper construction of clause 4.3(1)(b) of the LEP 7 The Council's submission about the impact on views now appear to be at the forefront of its submissions. This issue was addressed first and was subject to the most significant emphasis, at least in terms of the time devoted to the issue. 8 The submission was directed to the impact on views from unit 5/11 Thrupp Street, and in particular the view loss demonstrated by Exhibit "J" which was: • The loss of part of the view of a palm tree on private land • The loss of the view of part of building on private land in Kirribilli. 9 It should be noted that when the Council's submission refers to "Council's concern" in relation to this view loss: (a) The loss of views was not raised as an issue in the Council's SOFAC either as a contention or a particular of the contention. There the Council only referred to objectives (1)(e) and (f) in clause 4.3: see Contention 1; (b) This was deliberate. As pointed out, Mr Donovan said on Day 2 at T9: WITNESS DONOVAN: Your Honour, I had the actual benefit of visiting the Wallace's property prior to the hearing and I'm of the view that there would not be an adverse view impact in that direction from that property by virtue of it having a largely uninterrupted view further to the south and south west from not only those windows but they also enjoy views to the south from their living spaces which is more centrally located within their apartment. (c) The issue arose purely from the view of Mr Wallace's property: see Day 2 T7.50 and following. 10 It is therefore not clear what the basis is of the reference to Council's concerns about the view from Mr Wallace's property. Certainly no Council officer or witness has expressed any such concern. 11 It was also submitted that it was a "surprising approach" by the Applicant to only analyse the view from the middle window of Mr Wallace's apartment at 5/11 Thrupp Street. To the contrary, it would have been a "surprising approach" to do anything else, since the purpose of the analysis was to confirm the accuracy of Exhibit "G", which was from that vantage point: see Day 2 T14.30. 12 As the Applicant understands it, the Council now submits that having regard to the minor view loss identified in [8] above, it is not open to the Court to exercise the dispensing power under 4.6(2). The Applicant submits that the Council's submissions should be rejected for a number of reasons. Firstly, as a matter of construction, the objectives in clause 4.3(1) are intended, or at least partly intended, to be read with clause 4.6(4)(a)(ii): "is consistent with the objectives of the particular standard". Clause 4.3(1)(a) and (b) commence with the words "to promote". This is to be contrasted with: (i) "to ensure": clause 4.3(1)(e), 4.4(1)(a), 4.4A(i)(d); (ii) "to maintain": clause 4.3(1)(c) and (d); (iii) "to provide": clause 4.4A(1)(a) and (d) (iv) "to limit": clause 4.4(1)(b)(v); (v) "to encourage": clause 4.3(1)(f), 4.4(a)(i)(b) 13 Thus "to promote" does not mean "to ensure", "to maintain" or "to limit" or "to provide". It has similar meaning to "encourage". 14 The objectives "to promote" and "to encourage" are more aspirational objectives and less prescriptive than the other objectives. Objective 4.3(1)(b) is not to "ensure" or "to provide for" the retention of views or even "to maintain views". 15 Secondly, the words in clause 4.3(1)(b) "and, if appropriate, sharing of views" presupposes that not all views will be retained if existing views are shared, (which must mean a reasonable sharing of views). In that event, the aspirational objective of 4.3(1)(b) will be met, even though not all views have been retained. Certainly, if there is a sharing of views then the development is not inconsistent with objective 4.3(1)(b), notwithstanding that not all views have been retained. 16 Thirdly, clause 4.3(1)(b) must be read in the context of clause 1.2(2)(c)(i). In relation to residential development, an aim of the LEP is "to ensure that new development does not adversely affect residential amenity in terms of …. view sharing". 17 Fourthly, a practical and purposive approach needs to be taken in the construction of clause 4.3(1)(b). In the context of this part of North Sydney, "views" must be understood as views of: • The Harbour • The City • North Sydney 18 Given the lack of impact on views, as demonstrated from Unit 5/11 Thrupp Street, senior counsel for the Council is driven to argue that a view of vegetation on somebody else's property or the view of another building is relevantly a view that clause 4.3(1)(a) contemplates should be retained or shared. Such a construction cannot be supported. 19 The Council does not seem to be suggesting that there are any other views from other vantage points in the private domain that will not be retained were the development to proceed. For example, it is not suggested that there is any view loss from the apartments to the west or south or from the heritage item to the north on 18 Thrupp Street. Potential view loss from 13 Thrupp Street is not an issue. 20 Tenacity Consulting Pty Ltd v Warringah Council 21 On behalf of the Council it was submitted that the approach of Mr Brown in Exhibit "J" page 4 in determining the view impact of the proposal based upon the principles outlined in Tenacity was "legally irrational". That submission should be rejected. 22 What Mr Brown was doing was assessing consistency with objective 4.3(1)(b) of the LEP which, amongst other things, refers to "if appropriate, sharing of existing views". Mr Brown was not suggesting that this provision was in the same terms as clause 61 of the Warringah LEP (the subject of Tenacity). In a principled approach to determining the application of "sharing of existing views" under clause 4.3(1)(b), he applied Senior Commissioner Roseth's approach to assessing the view sharing in Tenacity: see [25] of Tenacity and following. 23 Why then is this legally irrational? Had Mr Brown not made mention of Tenacity it is likely that he would have been criticised.
4. Self-evidently, there are two separate elements to objective (b) of cl 4.3 of the LEP. The first relates to retention of views. This engages consideration of what views are presently available that are relevant to, and would be impacted by, the element of the proposed development that breaches the height control standard.
5. The second element, that which permits consideration of view sharing, if appropriate, relates only to existing views and does not engage, in any hypothetical fashion, with what views would be created for that portion of the proposed development that is not compliant with the height standard.
6. First, it is to be observed that there is no vice in a matter that has been raised by an objector but not a council becoming a matter that may potentially be determinative of a development proposal (including in the context of a request made pursuant to cl 4.6 of a modern local environmental plan) - indeed, public submissions (written and oral) are to be considered in proceedings such as this - s 4.15(1)(d) of the EP&A Act.
7. Of course, the Applicant must be given notice if such a matter is potentially determinative (The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2015] NSWLEC 47) and I gave Mr Hale such notice during the course of the hearing.
8. Next, the suggestion that part of the view is already blocked by existing vegetation entirely ignores the fact that the vegetation forms part of the view. The assertion to the contrary, in (18) of Mr Hale's submissions, is a bald assertion unsupported by evidence or authority. The view to the vegetation is proposed to be replaced, to much more than a negligible extent, by built form. This is an impact on the view from this location. The trees do not block the view, they merely block the view of that which is beyond the trees. They are part of the view.
9. Although from a merit decision given in a matter pursuant to the Trees (Disputes between Neighbours) Act 2006, the proposition in Haindl v Daisch [2011] NSWLEC 1145 at [26] that a view relates to the totality of what can be seen from the viewing location, is equally appropriate here. The assertion by Mr Hale in (17) of what should be regarded as the relevant views is not correct.
10. Whilst the view of this vegetation is, perhaps, not the same in a qualitative sense as might be a view to a rainforest canopy, nonetheless the view of the vegetation from this window (which would be lost if the height exceedence was to be permitted) is a pleasant verdant outlook.
11. Indeed, because the view of the vegetation is derived, primarily, from a tree that is on the property to the west of the site (a tree which would not be required to be removed if this development was to be approved), the view to this vegetation is one which would significantly be reduced if the cl 4.6 request was sustained.
12. It is to be observed that, if a height-compliant development was erected on the site, this would protect a significant portion of this verdant view.
13. Similarly, the superimposed wire-frame element forming part of Attachment B to Exhibit J makes it clear that, from the location from which the wire-frame perspective was taken, approximately half of the view of the building described in the above extract as "the Pile Place building" would be obscured by the southern end of the level below the mansard-roofed level where that view would be obscured by portion of that level of the proposed development that was non-compliant with the 12-metre height limit (as can be seen from Figure 1 on page 3 of Exhibit J).
14. It follows, from what I have set out above, that the cl 4.6 request seeking dispensation from compliance with the development standard imposed by the combination of cl 4.3 of the LEP and the Height of Buildings Map cannot be granted. This arises as there are three separate disentitling inadequacies in the request.
15. First, with respect to the question of cl 4.3(b) of the LEP, the author of the request fundamentally misunderstood the nature of that which was sought to be protected by the provision. His dismissal of the vegetated outlook to the west from the Wallis apartment as merely blocking the view rather than forming a desirable element of the outlook itself is a fundamental defect in his analysis. In particular, by his dismissal of this element of the outlook, he has been able to assert, incorrectly, that "the proposed top-level does not result in any view loss". He has not addressed the correct question
16. This inaccuracy and, hence, inadequacy of analysis, is sufficient in itself to warrant rejection of the cl 4.6 request.
17. In addition, the concept of sharing of views does not mean, for the reasons earlier explained, the creation of expansive and attractive views for a new development at the expense of removal of portion of a pleasant outlook from an existing development. This cannot be regarded as "sharing" for the purposes of justifying the permitting of a non-compliant development when the impact of a compliant development would significantly moderate the impact on a potentially affected view.
18. Finally, the non-compliant element does not "promote" (or encourage) the retention of views - it is antithetical to it. Mr Hale's submissions at (12) to (14) provide no basis for concluding to the contrary.
19. The cl 4.6 request as presently couched cannot (and does not) demonstrate consistency with this objective of the development standard.

Objective (f) - appropriate scale and density in accordance with, and promotes the character of, the area

1. Although there was some considerable dispute about what might be regarded as the relevant area for the purposes of this objective, it is not necessary for me to reach a concluded view on the resolution of those differences. The question of whether or not this objective of the development standard is met is, to considerable extent, moot given the other reasons why I have concluded that the cl 4.6 request must be refused and, thus, the appeal dismissed.
2. However, for the purposes of this objective, I turn to consider but one aspect of what is engaged by it. That which I address is confined to the immediate streetscape context (and hence a small subscale of the area as it might be defined for the purposes of this objective). Annexure A to this decision shows what will be the view from the public domain of a viewer standing on the eastern side of the intersection of Thrupp and Harriette Streets.
3. Relevantly, Exhibit J says, at page 8: The height of the proposed building is 4-5 storeys which is considered to be generally in keeping with the character of the area, particularly when the substantial pitched roofs, which are common, are taken into account. The design also preserves character by maintaining and [sic] appropriate scale relationship within the site, achieved by stepping the building with the slope of the land (as discussed above). This also means that the proposal achieves a height that is only one storey greater than the height of the existing buildings on the site. Given that all the existing buildings are 2 storeys, this is a good design outcome. It is also noted that the area of greatest non-compliance with the height control is only around ½ a storey higher than the existing building (ie16A Thrupp Street). This relationship can be seen in Figure 3 [not reproduced here].
4. After noting that the proposal had been amended in response to matters earlier raised by the Council, Exhibit J continued: Further amendments have been made in response to the discussions at the Section 34 conciliation conference, where the top level is now accommodated within a 'mansard' roof structure. It is also worth noting that the top level is access [sic] from Level 3 and so there is no lift overrun structure required above Level 4. These features ensure that the top level of the building will not be generally visible from the public domain. This includes the view from the corner of Aubin and Thrupp Streets requested by the Council during this section 34 process. The relevant images are provided at Attachment G [it is not necessary to reproduce these images as the perspective, which is of concern to me regarding compliance with objective (f) is that which is in Annexure A, showing the perspective from the corner of Thrupp and Harriette Streets]. This ensures that the building will only appear as a 3-4 story building from all points of the public domain. The set back from the northern boundary will also ensure that the building has a 3 storey plus roof scale when viewed from the adjoining heritage item (see Figure 4) [also not reproduced here]. The setbacks to the south also ensure a 4 storey appearance, from the South. To the west, the upper levels will be visible. However, the top level is designed to be within a restructure in order to mitigate bulk. Further, there are substantial trees on the site and adjoining land which mean that the building will be significantly screened in these views (see Figure 6)[also not reproduced here].
5. There are two criticisms to be made of the above assertions relevant to consideration of consistency with this objective of the development standard. The first is the assertion that "the building will only appear as a 3-4 storey building from all points of the public domain." Annexure A demonstrates the falsity of this as the building can be seen to be, on its eastern façade at its northern end, clearly a five-storey building.
6. Second, I have considerable doubt as to whether it is appropriate to rely on vegetation on a neighbouring property (this being relevant because much of the vegetation on the site will be removed if the proposed development is approved) should be relied upon for screening purposes. The question of borrowing vegetation values for such purposes has not been dealt with in any of the Court's planning principles (the second element of the planning principle in Super Studio v Waverley Council (2004) 133 LGERA 363; [2004] NSWLEC 91 not being relevant). There has been no general proposition adopted (and I do not advance this concern as a general proposition, in these proceedings) on such an issue. However, such screening as exists, to the extent that I do take into account, only provides that benefit to the apartment blocks to the west of the site. There is certainly no public domain screening benefit from the corner of Thrupp and Harriette Streets or other locations a little further to the north looking down Thrupp Street toward the proposed development.
7. In this context, I cannot be satisfied that the exceedences of the height standard, clearly visible as the mansard-roofed area in Annexure A, can be regarded as "promoting" the character of the area. The word "promotes", as discussed in Mr Hale's submissions concerning views earlier quoted, has what is clearly a positive aspect to it. As Annexure A demonstrates, that could not be said of this development when viewed from the location from which the Annexure A perspective has been taken.
8. As a consequence, I am satisfied that the proposed exceedence is also inconsistent with this objective of the development standard arising from cl 4.3 of the LEP.

Conclusion on the first requirement of cl 4.6(4)(a)(ii)

1. The cl 4.6 request satisfies the requirement with respect to only one of the three of the objectives of the development standard pressed by the Council. It fails the other two. These failures result in failure of the requirements of cl 4.6(4)(a)(ii) concerning the objectives of the development standard. This also requires refusal of the appeal.

Clause 4.6(4)(a)(ii) - second requirement (consistency with the zone's objectives)

1. On page 12 of Exhibit J, the request addresses the question of consistency with the objectives in the LEP for the R4 High Density Residential Zone. The request does so by setting out each of the objectives of the zone, together with a comment to explain why the author says the Applicant's development proposal is consistent with that objective. The relevant portion of the request is in the following terms: • To provide for the housing needs of the community within a high density residential environment. Comment - enforcing compliance would result in the loss of apartments which would result in a poorer planning outcome having regard to this objective. • To provide a variety of housing types within a high density residential environment. Comment - the proposal provides for an appropriate mix of apartment types. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. Comment - NA • To encourage the development of sites for high density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area. Comment - as discussed elsewhere the amenity of the surrounding area will not be compromised. The proposal will result in improved visual quality and an improved relationship of the site with the adjoining heritage item. • To ensure that a reasonably high level of residential amenity is achieved and maintained. Comment - the residential amenity of adjoining dwellings is maintained by the proposed development. The only residential property affected to any notable degree is the apartment building to the south. The potential impacts on this property were raised as Contentions by the Council. Those Contentions have now been addressed. As acknowledged by Council, the non-complying parts of the building do not create unreasonable amenity impacts. Generally the proposal provides for much greater than required setbacks to the site boundaries ensuring reduced impacts to neighbouring properties. In view of the above it is considered that the proposal suitably achieves the objectives of the R4 zone.
2. Although the author's commentary concerning the first of the zone objectives is couched in language consistent with the earlier matters I have discussed relating to entitlement issues, I am prepared to infer that the author also intended to say that the nature and design of the non-compliant element of the proposed development is consistent with the provision of meeting the housing needs of the community within a high density residential environment.
3. As a consequence, I am satisfied that the second of the tests in cl 4.6(4)(a)(ii) is satisfied.

Conclusion on the cl 4.6 request

1. For the above reasons, the cl 4.6 request cannot be sustained as I am not satisfied that the request adequately addresses matters required to be demonstrated by cl 4.6(3)(a) and (b) as required by cl 4.6(4)(a)(i). It is also inconsistent with two of the objectives of cl 4.3 of the LEP and thus cannot satisfy the first of the tests in cl 4.6(4)(a)(ii).
2. The appeal must therefore be dismissed.

Merit matters

1. As there is no proper basis upon which the cl 4.6 request could be sustained, it is unnecessary to consider any matters of design or other general merit in order to seek to resolve the differences between the urban designers and Mr Donovan on streetscape presentation matters.
2. However, although it is not necessary to provide an analysis on this, if I am wrong in my various conclusions concerning the inadequacy of the cl 4.6 request, I make the general observation that other merit matters would not act as an impediment to approval of the proposed development.

Orders

1. For the reasons I have earlier set out, the orders of the Court are: 1. The request pursuant to cl 4.6 of the North Sydney Local Environmental Plan 2013 to dispense with compliance with the relevant maximum height shown on the Height of Buildings Map is refused; 2. The appeal is dismissed; 3. Development Application DA177/17 for the construction of a residential flat building at 14, 16, 16A and 16B Thrupp Street, Neutral Bay, is refused; 4. The exhibits, other than Exhibits A and 3, are returned.

Amendments 23 November 2018 - The addition of the word "in" after the word "reply" in [78]. 30 May 2019 - Correction to numbering of paragraphs. Correction to heading above paragraph [101] from Clause 4.6(4)(a)(i) to Clause 4.6(4)(a)(ii). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2019