Tifad Developments Pty Ltd v Woollahra Municipal Council

APPLICANT Tifad Developments Pty Ltd PARTIES : RESPONDENT Woollahra Municipal Council

FILE NUMBER(S) : 10149 of 2009 and 10150 of 2009

KEY ISSUES: SECTION 96 MODIFICATION :- and as modified would excavation development be substantially the same as original consent, streetscape, landscape, additional floorspace, does it increase number of storeys, desired future character of precinct.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995

APPLICANT Mr C. McEwen SC instructed by Konstan Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Rigg, solicitor of Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10149 of 2009 and Tifad Developments Pty Ltd v 10150 of 2009 Woollahra Municipal Council

JUDGMENT 1 Commissioner: This is two s 97 appeals against the refusal of modifications applications for DA778/2004. The consent is for the demolition of an existing building at No.95 Wentworth Avenue, Vaucluse and the erection of a new 4-storey block of 4 flats with basement carparking. There have been several previous s96 amendments approved by council, the last being DA778/2004/5. A separate consent DA670/2007/1 has also been issued for a swim pool, stair and privacy screen.

2 The appeals in this hearing are in regard to applications DA778/2004/6 and/7. Appeal 10149 is agreed by both parties to be the major appeal and it relates to a change in the method of construction of the basement, that involves over 700 cubic metres of extra excavation. Appeal 10150 is in regard to the refusal of 17 cubic metres excavation for extension of a plant room at the rear of the building. The parties say if 10149 is dismissed then 10150 must also be dismissed. If 10149 is upheld, then 10150 could be upheld too and they only proposed submissions in regard to 10150.

3 The site is located on the uphill side of the road that services waterfront lots to Vaucluse Bay on the downhill side. The site faces approximately west. It is one lot from the corner with Chapel Road. The adjoining house at the street-front on that side (southern) is No.1 Chapel, a 2-3 storey (including basement) residence; it steps up from street level, and therefore its north elevation is mostly beside the front setback of the proposal. Further back towards the rear of the site it also adjoins No.3 Chapel Rd, a 2-storey house with garage excavated into the landform. The rear or east boundary adjoins Nos.32A, 36 and 40 Fitzwilliam Road that are uphill of the site.

4 On the north side the neighbour is No.97 Wentworth Ave, the 1 and 2-storey house on it has its ground level at about the same level as the ground floor of the development ie about 10-11m above the road. No.97 has its garage up at the house, so there is a steep driveway on a sandstone retaining wall partway across its front boundary.

5 Other houses in the near vicinity are 2-3 storey.

6 From the evidence, the respondent's summary of the dispute is: a The original consent was given by the Court in Stromness Pty Ltd V Woollahra Municipal Council [2006]NSWLEC587 Pain J when the application plans showed the 4-storey flats sitting on top of the existing front setback vegetated land slope at an elevation about 10-11m above the street level and with a front setback of 10-14m variable. The slope in the front setback was to be landscaped by supplementing existing vegetation. The basement was to be excavated at street level, with only about 3m ceiling height for the garages, thereby retaining the land slope and vegetation. Access to the flats was to be via a tunnel at the back of the basement to the stairs and lift. b The geotechnical evidence in the grant of the consent was that this excavation method, that is similar to underground mining, was feasible because of the strong rock formation that underlays the site. c The excavation has proceeded without consent to remove most of the vegetation, soil and rock within the front setback. The excavation has gone back to just behind the front elevation of the flats building and across nearly the full width of the site. Once the work was stopped, there remains a shelf of rock at about 3-4m above the street level for the full width of the site. The only way the basement carpark can now be built is to remove that shelf too. d This unauthorised work has changed the development such that it is "not substantially the same" as the original approval of the development under s96AA(1)(a) of the Environmental Planning and Assessment Act 1979 . e The development had the benefit of "existing use" rights in this residential zone, where flats are not permissible, due to the existing 2 to 3-storey block of flats on the site previously. The height of the new building was approved largely within the envelope of the existing building due to the latter having a high pitched roof. Thus the bulk and scale would remain similar. This was a consideration under s79C of the Act. f The development now becomes equivalent to a 7-storey building as seen from the street, with the equivalent of two extra floors (plus the "basement" that is at street level and visible), and about 430 sq m of extra floorspace raising the Floor Space Ratio (FSR) from approved 1.07:1 to 1.46:1. This is out of character with the locality and the streetscape and substantially different to the outcome expected from the original consent. g The modification should be refused, and a fresh application made, that would probably have to be sited on the remaining rock shelf level, and have a driveway up to it, in order to regain an appropriate bulk/scale/streetscape/character relationship to the surroundings. 7 The applicant's counter to these issues is: i) The consent had Condition 5 that required a fresh landscape plan. The plan before the Court at the time numbered LA01A was not adopted and there must have been a later plan. The conditions of consent also had Conditions 8-13 requiring large on-site stormwater detention structures in the front setback. These had to be elevated above the basement and so meant excavation of part of the front setback not shown on the architectural plans. ii) The plans subsequently approved for the detention tanks showed large planter troughs across the top, and later plans approved for the landscaping showed a system of tiered planter troughs across the whole front setback. The earliest approved landscape plans found were in relation to one of the s96 applications, and the text said that those planter troughs had been slightly relocated compared to an unfound previous plan. That plan is presumably the Condition 5 plan. iii) The applicant had bought the site after the Court's consent and does not have that unfound critical plan. A search of the council's files also has not revealed the plan, but it must exist. The logical conclusion from this is that the architectural plans and the un-adopted LA01A before the Court at the time of consent did not reflect the final appearance of the development because that depended on the effect of the approved conditions on the appearance. The applicant said that the appearance of the development as now proposed will be almost the same as the approval. iv) Examination of Condition 5 shows that it requires inter alia : 5(c) The minimum soil depth for plantings on any slab must be 1000mm for trees, 600mm for shrubs and 300mm for turf. Those dimensions must include 75mm depth of mulch. 5(d) Construction details of planter boxes , paving, edging, fencing, screening panels & other (specify) must be provided. (my embolding). v) Therefore the consent envisages planter troughs and they would have been required to carry the supplementary vegetation proposed in the original application. The landscape architect Mr Taylor has given evidence that irrigation was in the original design, as natural rainfall on the front setback would not support the vegetation. Thus the final appearance of the development was always going to be vegetation on a series of tiered planter troughs across the front setback. Mr Taylor said he had prepared plans subsequent to LA01A, but he had not been responsible for any lodgement with council. vi) The modification does not propose additional floor space, the two extra floors alleged by the council are structural beams and columns only with no floors and there are no accesses to the enclosed volumes. There are no windows or other installations that would make them appear as a 1 or 2-storey component from the outside. The planter troughs themselves will become only semi-visible once the vegetation grows over them. It will not look 7-storeys. It will still look like a 4-storey building setback from and high above the street behind cascading gardens. vii) The applicant did not act on the excavation in an offhand way or irresponsibly. Expert engineers advised him, as in evidence that once work began, fractures in the rock in the front setback showed that the underground mining proposed in the original consent would not work. It was the Construction Certificate certifier that advised the applicant to lodge a s96 application, and that was done in good faith. The applicant complied immediately with the stop work order, and has done no more work on the site for the last 4-5 months. viii) Apart from the removal of the rock shelf remaining at the front of the site, and the rock at the same level as the shelf but in the "slot" leading back to the stairs and lift, there will be no more excavation. The rock beneath the flats building will remain as shown in Exhibit C. 8 At the view on-site evidence was taken from neighbours. Those at No.1 Chapel said that although they had not been pleased by the proposal, the events of the past many months, with heavy excavation and then the stop-work, and as a result the extended period of any future construction, had brought them to the point where they just want the building finished. They felt that the adverse effect on their quality of life, the stress and inconvenience is unreasonable, and they felt they could do nothing with their own property until the development is completed. There must be at least a year more of nuisance and disturbance even if the current proposal is to be built.

9 A neighbour opposite across Wentworth Ave had similar opinions except that they had not opposed the proposal in the first place. Another near resident a little further north on Wentworth Ave believed the proposal as it is now, is so different to the original and to the character of development adjacent and in most of Vaucluse that it should be prevented and a new DA put in.

10 The adjoining northern neighbour, a Ms D L Goddard had objected, but is overseas. A representative read a statement she had made on oath that was tendered. In summary, she sometimes works from home, but in the 5 months of construction with the heavy excavation that has been impossible during working hours. Debris from the excavation, dust and even chunks of sandstone have damaged her roof membrane, blocked drains and littered her yards. Even though she had requested protective screens and fencing these had not been provided.

11 Noise and vibration has damaged her house, opening cracks, vibrating objects off shelves and faulting the burglar alarm. Cracks have appeared in her garage floor that is adjacent the common boundary. She is concerned that continued excavation may damage her retaining walls and perhaps her house foundations. She notes that the builder has installed underpinning to No.1 Chapel Road but not to her place.

12 The objector said there was continued excavation carried out in the area where the rock is supposed to remain between the Council's Notice of Intent to serve an Order, and the actual Order being issued.

13 Ms Goddard further objected to the change of character resulting from the unapproved works. She said the approval relied on the retention of the high rocky promontory now gone from the site, and the resultant 7-storey building proposal that is unprecedented in this part of Vaucluse. She feared that even though the proposal says the extra levels created are not floor space, it would be easy for a Body Corporate or another successor in title to seek to install floors and use it in the future. 14 As the Hearing proceeded in Court, the respondent's evidence was heard from Mr J Booth council town planner, Mr A J Rowan consultant town planner and heritage expert. The applicant's evidence came from Mr R Fleming consultant town planner and Mr D M Taylor, landscape architect and landscape heritage expert.

15 The applicant submitted that the respondent had required for cross examination, but had not called him to give evidence, the geotechnical engineer from "abvd Design" Mr D Miladinovic. He had advised Tifad that once work commenced fractures and cleavage planes found in the rock would not allow the mining-tunnelling method of excavation to be used.

16 The applicant noted that the respondent had also obtained an expert report from two reputable geotechnical engineers Mr J Braybrooke and Mr A Walker that is in Exhibit 6. Their conclusion is that when they were briefed, the site was excavated more or less as seen by the Court. Without seeing the site when the rock promontory was first exposed at the time of commencing construction, they could NOT express an opinion about the "abvd Design" advice. As excavated, they said, there is not enough depth of rock left above the carpark level to form a reinforced rock beam that would support the carpark ceiling. Their report says open cut method is the appropriate way to continue.

17 The applicant put therefore that the Court must accept that the original method of construction of the basement could not be used, and would have required what has been done. The applicant estimated the remaining excavation would be in the order of 12-15 truck loads.

18 The evidence turned towards an understanding of what the combination of the original drawings approved by the Court, as modified by the original conditions, had produced. This is crucial to the determination of whether or not the current proposal would change the development to be "substantially different" in terms of s.96 of the EP&A Act 1979.

19 The parties tendered several photos of the site back from 2005 and montages of the appearance after the original consent and after this proposed modification. I note from the conditions of the original consent that original existing trees shown at the top of the slope in the front setback are approved in Conditions 48-51 to be removed and 2 to be transplanted within the site. Eight replacement trees are required in the front setback. It occurs to me that the approval envisaged loss of much of the previously existing vegetation in the front setback during construction.

20 Also in looking at the original approval plans, the front boundary is about 28 m long. About the last 8m on the north end of the boundary is behind an existing rock outcrop within the footpath reserve of Wentworth Ave. Although not clear from the view on site, a comparison with the plans indicates some of that outcrop appears to be removed. The parties assured me most of it is still there. That being the case, of the 20-21m of the front boundary visible from the street, the original approval shows all of it in the Basement Plan 1788/01D as being a masonry wall about 3.25m high with entry doors for pedestrians and cars, external stairs and the garbage enclosure built right on and across the front boundary. That means in the original approval there is no front setback to the basement and it would appear as a "storey" at street level.

21 The plans also show that the previously existing flats had two garages, one being largely within the footpath reserve and the other excavated into the bedrock just behind the street boundary. That garage was not "tunnel" construction, the rock above the garage had been quarried out and a stone masonry and concrete roofed garage built with a rock cliff at its back. Together with the previously existing external stairs up the front garden they covered about the same 20-21 m of the frontage as the approved development. The original architectural plans showed the then existing rock contours in the front setback with the words "Rock Garden" over the top.

22 The front elevation drawing 1788/12E confirmed this information, including above the front boundary basement wall lightly sketched lines of shrubs apparently overhanging rock ledges, and some trees, one in the footpath reserve and others along the south boundary adjoining No.1 Chapel Road. The tree in the footpath reserve is adjacent a bus shelter near the south boundary. It and the shelter are still there.

23 The plans and section drawings 1788/8E-11E showed the rock now removed between the original concrete reinforced roof of the garage and the ground floor of the units. It shows about 6-7m thickness between the garage and the building and tapering down to the street boundary but still showing about 3m height above the basement wall at the boundary. 24 This last needs to be balanced with the location of that section drawing. If one moves to where the second old garage was excavated into the rock face near the south end of the front boundary, the rock face steps back to about 6m behind the front boundary and at that setback would be about 4-6m high above the approved front boundary basement wall according to the spot levels on the plans.

25 The original architectural plans only say "Existing Garage to be Demolished" and the Basement plan shows that location as part carparking, presumably with a concrete roof and part garbage store. Only the un-adopted LA01A shows "Low Groundcover on top of Detention Tank" covering both parts where the existing garage was.

26 Condition 8 of the original consent refers to detention tanks being in accordance with LHO Group P/L plan dated 31/08/04 No.CO1 issue A. I was not given that plan but I was told that a subsequent s96 No.778/2004(3) approved the OSD detention tank, and a structure to support it with large planter troughs above. In Exhibit 3 tab 8 the OSD is shown on drawing 1788/02H/96 partly over the old garage and partly into the previously to be retained rock north of the garage towards No.97, and with a structure extending east back into the rock face up to about 12m from the front boundary towards the flats. It covers perhaps one third of the front setback total area.

27 In the original conditions of consent I note Condition 47 also required the provision of an electricity substation, and this has been shown on subsequent plans right in the street front elevation just behind the front boundary adjacent No.1 Chapel Road.

28 The Ground Floor Plan of the same s96 modification shows a series of tiered planter trough retaining walls in the front setback over the OSD tank and across the retained rock in the rest of the front setback. The drawings show them as "Stone retaining walls". These drawings are the ones I was told referred to the walls being "only slightly relocated" compared to the previous plan that is the critical one resulting from Condition 5.

29 Mr Booth was asked to retrieve council's storage records to see if the critical landscape plan was there, along with a council staff checklist that should have existed to tic off compliance with development consent conditions before issue of the Construction Certificate. He said he had already asked for that, and the files should be available before the end of the Hearing.

30 Photos in Exhibit 15 of the pre-existing front setback shows that there were what appears to be stone retaining walls set into gaps in the rock to create soil pockets in which the existing vegetation grew and covered most of the front setback in greenery. Some of it was deciduous and winter photos revealed the old garages and retaining walls were built of rough faced coursed irregular block sized sandstone.

31 A photo in Exhibit 10 showed that the visible driveway retaining wall of No.97 Wentworth is also built in this way. Mr Rowan said this is typical of many examples in Vaucluse in the foreshore scenic protection area in which the site is located, and any retaining walls in the front setback of the proposal should be in similar construction using 200mm thick sandstone walls. It would fit better into the streetscape than the construction shown on the applicant's drawings in this appeal that vary between just concrete masonry blocks or concrete masonry with thin sandstone biscuits as facings.

32 Mr Booth came on the second day of the hearing with the files out of storage and had found the Construction Certificate documents and a set of 4 landscape plans two of which had an approval stamp for the CC certificate that would make them the result of Condition 5 of the original approval.

33 He also found a checklist for the CC that had a tic beside Condition 5 that he presumed was on the advice of the council landscape planner around 13 May 2008.

34 The drawings are LC01B, LC02A, LC03A and LC04A. They show the multi-tiered planter troughs over the whole front setback in the same or similar pattern to the later s96 approved drawings. The legend on LC02A shows that all of the troughs except in the north and south side setbacks contain "On slab planting refer to detail". All but one of the previously existing trees in the front setback are shown for removal and new trees to be planted. The rest of the front setback is completely covered in new under-storey vegetation, so it is not supplementary planting to the existing as shown on the un-adopted LA01A.

35 The drawings do not show how the on-slab planter troughs are structurally supported be it on structure or rock. There is no elevation drawing in the landscape set, but there are finished levels for each tier that shows about 1-1.5m steps between the tiered troughs. Subsequent s96 modification approved architectural plans reflect the CC landscape plans.

36 In those it can be seen the multi-tiered planter trough walls and the street front basement wall dominate the lower levels of the street elevation that resulted from the original consent for the development. That is, they will dominate until the rest of the consent is completed, namely the planting and growth to maturity of the vegetation. The landscape plans show that shrubbery is proposed in almost continuous lines just in front of each tier, so that the masonry of the troughs' walls will only be partially visible, unless the plants are deciduous. 37 Mr Taylor gave evidence that he is confident the landscaping will create a green slope of cascading gardens from the street wall up to the flats, and confirmed that irrigation had always been part of the proposed landscaping.

38 It appears to me that the "before" and "after" photo and montage respectively in Exhibit 13 demonstrate not exactly, but in concept that the appearance of the original approval of a 4-storey building set back from the street and high above cascading gardens will still be achieved. And that is probably better than the appearance of the previous building and landscaping.

39 Although Mr Rowan and the objectors feel that the natural rocky promontory would be visible from the street, I have come to the conclusion that is not the case, except for that section within the footpath reserve in front of the site. The appearance of the development as now proposed would be so similar to that resulting from the original approval as to be almost indistinguishable.

40 Both parties agreed that my role is not to deal with wrongs or the rights of the developer proceeding with the additional excavation without first obtaining consent. That is for another place. My role is to determine if under s96 the proposal remains substantially the same as the original consent, and my conclusion on the facts of this case is that it does.

41 I am comforted in that conclusion by the recommendations of the Council staff in their reports that the two s96 matters under dispute should be approved. Mr Booth as a witness in this Hearing, and having the benefit of the evidence and the extra information from the Council's storage files, confirmed his opinion that the proposal should be modified as proposed.

42 I am further comforted that in a reading of her Honour Justice Pain's judgment in Stromness that there is no mention of the rock podium in direct terms that would make it so central to Her Honour's final decision as the respondent put to me. It is true the existence of the promontory is implicit in the description of the proposed new building as being set back and elevated 10-11m above the street, and that the garage is excavated at street level and there would be landscaping up the slope. That setting and presentation in the streetscape will not change.

43 That being determined it remains to consider any relevant matter under s79C.

44 The Exhibit 1 Facts and Contentions alleges the unapproved extra excavation is 270%. In fact it is about 35%.

45 In regard to any concern that the structural spaces above the garage level that support the tiered landscaping may be converted to floor space, I have the opinion that can be prevented by appropriate conditions. As shown on the engineer's drawings in Exhibit D, in the areas under the tiered gardens it would be necessary to install floor structures between the beams to convert them to floor space. In the "slot" that leads back to the stairs and lift, the drawings actually show floor slabs at two levels. Each is about 8m X 4m and would be accessible from stair landings. A suitable condition can require there be no access to the spaces by having no doorway from the stair shaft.

46 I am of the opinion that Mr Rowan's concern for the quality of the appearance of the tiered planter troughs and to ensure consistency in the streetscape and scenic protection area, the use of 200mm thick rough faced coursed random sized sandstone masonry, is appropriate. Over the long period of time the proposal is likely to exist, concrete block work, or artificial or real sandstone biscuit facings would deteriorate on the planter trough walls. In the case of block work the appearance would be unacceptable from the start, and in the case of facings unacceptable in the medium to long term. An appropriate condition should apply.

47 In regard to the provisions of the Woollahra LEP 1995 ,cl 2(2)l the impact on the amenity of the neighbourhood in terms of excavation of the subject rock has been had, and given the conditions of the original approval, the future amenity outcome will be the same with the modification.

48 The objectives of the Residential 2(a) zone have been dealt with by Her Honour in granting the original consent under "existing use "rights.

49 In terms of cl 18 truck movements to remove the remaining rock shelf, I note the applicant's submission that the rock the subject of the dispute is already gone. The remaining rock is approved for removal and should involve 12-15 truck loads. Although I appreciate the nuisance and impacts already suffered by the neighbours, it is my opinion the remaining work has to be tolerated. Regarding retention of natural land forms, the applicant's evidence is that the rock previously on the site had been heavily changed from any "natural" appearance first of all by the construction of Wentworth Ave, and then by the previous flats and garages. Local natural rock outcrops have a weathered and rounded appearance.

50 In relation to cl 19, the proposal in the foreshore scenic protection area, was largely dealt with by Her Honour in the original consent. The modifications, being substantially the same do not change Her findings.

51 The Woollahra Residential Development Control Plan 2003 also has provisions to be considered if one overlooks the original consent is under "existing use" rights. The Vaucluse West precinct seeks to have houses in garden settings. The modifications to the extent the development has considerable landscaping, and that the original approved appearance in the streetscape will change very little must provide that. To the extent it changes the landform, the modification will re-establish the topographic form of the original consent and add canopy trees on site, preserve the street tree and in my opinion (and suggest that of Her Honour) improve the grassed verges compared to previously existing. 52 The Desired Future Character objectives I believe were dealt with to the extent they were applicable by Her Honour, because the modifications produce almost exactly the same outcome.

53 In regard to concern for the impacts of excavation modification on ground water movement, I note the evidence of Douglas Partners engineers in Exhibit A that the effect of the modification on ground water is the same or similar to the original approval of tunnel construction of the carpark.

54 Height bulk and scale and streetscape presentation of the development seemed to be the major issues in the original consent and will not change as a result of the modification. It seems to me that the relevant matters of the LEP and DCP to the extent they are applicable will not be offended by either modification.

55 The small extension of excavation of room at the rear of the building on the ground floor level is de minimus and the parties agree on that, and can be approved with the modified plans.

56 The parties forwarded draft conditions for both appeals after the hearing. I have concluded those of the respondent deal more thoroughly with the matters of concern I have outlined above, and overall there are no reasons sufficient for either appeal to be refused.

57 There fore the Orders of the Court are: 1. In Appeal No.10149 of 2009 the appeal is upheld and the modification of consent for a development at No.95 Wentworth Ave, Vaucluse, to be known as DA No.778/2004/6 is granted subject to the conditions in Annexure A hereto. 2. In Appeal No.10150 of 2009 the appeal is upheld and the modification of consent for a development at No.95 Wentworth Ave, Vaucluse, to be known as DA No.778/2004/7 is granted subject to the conditions in Annexure B hereto. 3. The exhibits are returned to the parties except Exhibits A, C, H, 1, 13 and 15.

      K G Hoffman
      Acting Commissioner of the Court
      ljr

Annexure 'A' Conditions of Consent Tifad Developments Pty Ltd v Woollahra Municipal Council

Those acting upon or under this amended consent must carry out all work and maintain the use and works in accordance with the previously approved plans and supporting documentation listed in the original consent and the subsequent s96 approvals, as amended by the following approved plans and supporting documentation submitted by the applicant and listed below, otherwise than as modified by the further conditions. Where the plans relate to amendments, alterations and additions only those works shown in colour or highlighted are approved:

Prepared by Date No. Floor Plans

Basement Level Thorsette P/L Plot Date 24/4/09 0904-SK01 Slab at RL16.30-17.30 Level ABVD Design 8 April 2009-04-27 2-3202 Slab at RL20.80 Level ABVD Design 8 April 2009-04-27 4-3202 Ground Floor Level Gergely & Pinter May 2008 1788/03/96 First Floor Level Gergely & Pinter May 2008 1788/04/96 Second Floor Level Gergely & Pinter May 2008 1788/05/96 Third Floor Level Gergely & Pinter May 2008 1788/06/96

NW Elevation Gergely & Pinter Oct 2007 1788/11H/96 SW Elevation Gergely & Pinter Oct 2007 1788/12H/96 NE Elevation Gergely & Pinter Oct 2007 1788/13H/96 SE Elevation Gergely & Pinter Oct 2007 1788/14H/96

Section A-A Thorsette P/L Plot Date 21/4/09 0904-SK02

Statement from Tifad Developments Pty Limited 16 February 2009 Construction Vehicle Access Route and Traffic Control Plan Darren Lindsay Design 8 November 2008 Construction Management Plan Riboni Residential Construction Pty Limited 20 April 2005

39. Compliance with the recommendations of the geotechnical and hydrogeological reports

The development works are to be undertaken in accordance with the recommendations of the Geotechnical and Hydrogeological report/s prepared by Douglas Partners Project: 37428 dated September 2004 (and subsequent reports 37428.01, 37428.02 and 37428.03) and Douglas Partners Project 37428.04 dated November 2008 and in the additional report required by the following condition.

Delete the references to trees 1 and 2 in the table to the condition.

A. Levels Re16.3 - 17.3 and Level RL 20.8 New Condition 1A:

The void spaces located on Level RL16.3-17.3 and Level RL20.8 shall not be used for any habitable or non-habitable purposes, or be permitted to include floor slabs between beams, so as to prevent their potential to alter the number of levels of useable accommodation beyond their shown on the plans. No openings (windows, doors, vents, pipes or other openings/protrusions) shall be permitted through the external walls or planter walls such that the appearance of these levels, intended as stone retaining walls in a garden setting, is diminished to being as planters on the face of a building.

B. Sandstone treatment of external face of basement level, level 16.3-17.3 and level 20.8 New Condition 1B.

The external face and planter boxes of the basement level, level R16.3 - 17.3 and level RL20.5 shall be constructed in natural sandstone, to have a thickness of no less than 200mm to be rough-hewn sandstone laid in a similar pattern and courses and be of a similar colour to that of the existing driveway with the adjacent property number 97 Wentworth Road. No manmade materials are to substitute the natural sandstone. The sandstone overleaf shall extend across the leading edge of any beam and/or slab edge, to screen all structural elements from view from outside the building.

Landscape Plans, prepared by Taylor Brammer LC01B and LC02A (as necessary) shall be amended as follows prior to the issue of an amended construction certificate. (a) Provide finished heights to planters in Section 1 - 1 depicted on the Plans for Level RL 16.3 - 17.3 and Level RL 20.8; (b) Amend the detail section "Raised Planter Box-Brick" (Plan LC02A) to demonstrate construction of the external face of the wall in natural sandstone as conditional elsewhere in this consent; (c) Amend the site plan layouts on Plans LC01B and LC03A to include a notation that "retaining walls" are "planter boxes", to be of sandstone construction (minimum depth 0.2m) as conditioned elsewhere in this consent. (d) Amend the notation regarding retention of existing tree, to nominate a similar replacement tree, or refer to the former trees that have been removed by transplanting being re-introduced.

K G Hoffman Acting Commissioner of the Court ljr Annexure 'B' Conditions of Consent Tifad Developments Pty Ltd v Woollahra Municipal Council

Those acting upon or under this amended consent must carry out all work and maintain the use and works in accordance with the previously approved plans and supporting documentation listed in the original consent and the subsequent s96 approvals, as amended by the following approved plans and supporting documentation submitted by the applicant and listed below, otherwise than as modified by the further conditions. Where the plans relate to amendments, alterations and additions only those works shown in colour or highlighted are approved:

Ground Floor Level Tifad Nov 2008 1788/96CC/01 First Floor Level Tifad Nov 2008 1788/96CC/02 Second Floor Level Tifad Nov 2008 1788/96CC/03 Third Floor Level Tifad Nov 2008 1788/96CC/04

NE Elevations Tifad Nov 2008 1788/96CC/05 SE Elevations Tifad Nov 2008 1788/96CC/06

K G Hoffman Acting Commissioner of the Court ljr

07/05/2009 - Correction on Coversheet, typographical errors in Order 2 - Paragraph(s) Coversheet, Order No. 2

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.