Tilrox Pty Ltd v Holroyd City Council

The site and its context 3The site is located on the eastern side of Pitt Street, between the M4 Western Motorway and Robert Street. The M4 Western Motorway corridor is adjacent to the northern side boundary and the site is located at a higher level than the M4 Western Motorway, with substantial vegetation along the corridor. 4The site has an area of 760m2 and a frontage to Pitt Street of 16.8m. 5Development in the local area generally consists of single storey cottages, cottages over a basement garage level, two storey contemporary dwellings and attached dwellings.

Planning Framework 6The application was lodged pursuant to the provisions of SEPP ARH. 7Clause 10 of SEPP ARH was replaced with a new clause with effect on 20 May 2011, State Environmental Planning Policy (Affordable Rental Housing) Amendment 2011 (2011 amendment). The 2011 amendment inserted a savings and transitional clause, 54A, into the SEPP ARH, as follows: (1) Division 1 of Part 2, as in force before its amendment by State Environmental Planning Policy Amendment (Affordable Rental Housing) 2011 (the amending SEPP), continues to apply to development, if: (a) the land on which the development is situated is owned by the Land and Housing Corporation and was owned by that Corporation immediately before the amendment, and (b) the development is commenced not later than 2 years after the amendment. (2) If a development application (an existing application) has been made before the commencement of the amending SEPP in relation to development to which this SEPP applied before that commencement, the application may be determined as if the amending SEPP had not been made. (3) If an existing application relates to development to which Division 1 or 3 of Part 2 applied, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. (4) Despite subclause (2), clause 13 (2) (as in force before the amendments made by the amending SEPP) does not apply to development the subject of an existing application and any such application is to be determined by applying instead clause 13 (2) and (3) as inserted by the amending SEPP. 8The Council received the application on 25 October 2010 (Exhibit 4, Folio 1). Clause 54A permits the determination of this application, lodged before the 2011 amendment, by reference to clause 10 in the historical version of SEPP ARH. Council confirmed during the hearing that it does not press an earlier contention that the application of clause 54A is discretionary. 9Clause 10 in the historical version of SEPP ARH, 'Land to which Division applies', states: (1) This Division applies to a development site on land if the development site is within any of the following land use zones or within a land use zone that is equivalent to any of those zones, but only if development for the purposes of dwelling houses, multi-dwelling housing or residential flat buildings is permissible within the zone: (a) Zone R1 General Residential, (b) Zone R2 Low Density Residential, (c) Zone R3 Medium Density Residential, (d) Zone R4 High Density Residential. (2) Despite subclause (1), this Division does not apply to a development site in the Sydney region unless all or part of the development site is within: (a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or (b) 400 metres walking distance of a public entrance to a light rail station or in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or (c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 18.00 each day from Monday to Friday (both days inclusive). (3) Despite subclauses (1) and (2), this Division does not apply to land identified in an environmental planning instrument as being within a scenic protection area unless development with a building height of 8.5 metres or more is permitted on the land. (4) In this clause: walking distance means the shortest distance between 2 points measured along a route that may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings. 10The aims of SEPP ARH, include, at clause 3, (b) To facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards. 11Clause 4(2) of SEPP ARH adopts the definitions in the Standard Instrument (Local Environment Plans) Amendment Order 2011 (Standard Instrument). 12References to equivalent land use zones are interpreted by clause 5(1) of SEPP ARH, as follows: A reference in this Policy to a land use zone that is equivalent to a named land use zone is a reference to a land use zone under an environmental planning instrument that is not made as provided by section 33A (2) of the Act: (a) that the Director-General has determined under clause 1.6 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 is a land use zone in which equivalent land uses are permitted to those permitted in that named land use zone, or (b) if no such determination has been made in respect of the particular zone, is a land use zone in which (in the opinion of the relevant authority) equivalent land uses are permitted to those permitted in that named land use zone. 13Clause 8 of SEPP ARH provides that if there is an inconsistency between the policy and an environmental planning instrument, SEPP ARH prevails to the extent of the inconsistency. 14Clause 11 of SEPP ARH includes the following: This Division applies to the following development on land to which this Division applies: (a) development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings where at least 50 per cent of the dwellings in the proposed development will be used for affordable housing, but only if: (i) the development does not result in a building on the land with a building height of more than 8.5 metres, and (ii) in the case of development for the purposes of a residential flat building-residential flat buildings are not permissible on the land otherwise than because of this Policy 15Clause 14 of SEPP ARH states: (1) Low rise development A consent authority must not refuse consent to development referred to in clause 11 (a) on any of the following grounds: (a) density and scale in respect of a development application lodged before 30 June 2011-if the density and scale of the buildings when expressed as a floor space ratio are not more than the higher of: (i) the existing maximum floor space ratio for any form of residential accommodation permitted on the land on which it is proposed to carry out the development, or (ii) 0.75:1, and in respect of a development application lodged on or after 30 June 2011-if the density and scale of the buildings when expressed as a floor space ratio are not more than the higher of: (iii) the existing maximum floor space ratio for any form of residential accommodation permitted on the land on which it is proposed to carry out the development, or (iv) 0.5:1, (b) site area if the site area on which it is proposed to carry out the development is at least 450 square metres, (c) landscaped area if: (i) in the case of a development application made by a social housing provider-at least 35 square metres of landscaped area per dwelling is provided, or (ii) in any other case-at least 30 per cent of the site area is to be landscaped, (d) deep soil zones if, in relation to that part of the site area (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) that is not built on, paved or otherwise sealed: (i) there is soil of a sufficient depth to support the growth of trees and shrubs on an area of not less than 15 per cent of the site area (the deep soil zone), and (ii) each area forming part of the deep soil zone has a minimum dimension of 3 metres, and (iii) if practicable, at least two-thirds of the deep soil zone is located at the rear of the site area, (e) solar access if living rooms and private open spaces for a minimum of 70 per cent of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter. (2) General A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (a) parking if: (i) in the case of a development application made by a social housing provider-at least 1 car space is provided for each 5 dwellings, or (ii) in any other case-at least 0.5 car spaces are provided for each dwelling, (b) dwelling size if each dwelling has a gross floor area of at least: (i) 35 square metres in the case of a bedsitter or studio, or (ii) 50 square metres in the case of a dwelling having 1 bedroom, or (iii) 70 square metres in the case of a dwelling having 2 bedrooms, or (iv) 95 square metres in the case of a dwelling having 3 or more bedrooms. (3) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2). 16Clause 16A of SEPP ARH states: A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 17Clause 17 of SEPP ARH requires a condition to be imposed upon the consent that the dwellings proposed to be used for the purpose of affordable housing will be used for that purpose for a minimum period of 10 years from the date of the issue of the occupation certificate and that this restriction is registered against the title of the property. 18The proposal is subject to the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65). Subclause 30(2) of SEPP 65 requires the Court to take into consideration the design quality of the residential flat development when evaluated in accordance with the design quality principles and the publication Residential Flat Design Code (viewed on the NSW Department of Planning website http://www.planning.nsw.gov.au/residential-flat-design-code). 19The site is within the 2(a) Residential Zone under the provisions of LEP 1991. Residential apartment are prohibited within the 2(a) Zone, however this application is made pursuant to the provisions of SEPP ARH. The zone objectives of the Residential 2(a) Zone, at clause 9 of LEP 1991, are: (a) to provide and maintain the amenity of a predominantly low density living area and to enable sensitive infill of medium density housing styles, (b) to allow people to carry out a reasonable range of activities from their homes while maintaining neighbourhood amenity, (c) to enable development for purposes other than residential only if it is compatible with the character of the living area and has a domestic scale and character, and (d) to restrict development which is of a traffic generating, offensive, hazardous, noisy, intrusive or environmentally inappropriate nature. 20Part B of the Holroyd Development Control Plan 2007 (DCP 2007) contains the residential controls. Subclause 14.2.3, Building Appearance, includes the following: Whilst Council encourages innovative design, it is important that key 'character' defining design elements such as setbacks, height, roof form, detailing and materials visible from public areas and adjoining properties are not in strong visual contrast with buildings in the vicinity. New dwellings are to have a maximum straight frontage of 10 metres to a public street, after which the front wall must be recessed/offset to provide some visual relief. Punctuation by bay windows, verandahs and the like shall be provided within the 10m straight frontage. 21Subclause 14.2.8 of DCP 2007 permits two storey development where it is consistent with other development in the vicinity and has a maximum height of 9m, measured from natural ground level. 22Subclause 14.2.9 of DCP 2007 permits a maximum floor space ratio (FSR) 0f 0.5:1 and a maximum footprint of 50% of the site area. 23Subclause 14.3.3 of DCP 2007 permits side setbacks to be a minimum of 1m and rear setback to be a minimum of 4m. 24Subclause 15.2.2 of DCP 2007, controls specific to attached dual occupancies, includes the following: (i) Two-storey development will only be permitted directly adjoining the principal street frontage where there are no adverse privacy and overshadowing impacts, and where it si compatible with the existing streetscape. If an attached dual occupancy consists of one dwelling at the front of the site, and one attached to the rear, the rear dwelling must be single storey. 25Subclause 15.3.3 of DCP 2007, controls specific to detached dual occupancies, includes the following: Two-storey development will only be permitted directly adjoining the principal street frontage where there are no adverse privacy and overshadowing impacts, and where it is compatible with the existing streetscape. If a detached dual occupancy consists of one dwelling at the front of the site, and one behind that at the rear, the rear dwelling must be single storey.

Public submissions 26The Court, in the company of the parties and their experts, conducted a view of the dwelling and the local area. 27Two resident objectors provided evidence on site. The Court, the parties and their experts viewed the site from the rear terrace of 108 Pitt Street, to the south of the site and the resident stated that he objects to the visual bulk of the proposal when viewed from his backyard. He also objects to the proposal in terms of its impact on his privacy and because it overshadows his rear yard, although his concerns regarding privacy and overshadowing were not substantiated by the plans and shadow diagrams. 28The other resident objector's property, at 4 Robert Street, adjoins the rear boundary of the site via a handle at the rear of his property that wraps around the rear of 2 Robert Street. He objects to the bulk and scale of the proposal and the impact that 5 new residences will have on the limited off street parking in Robert Street, as there is no off street parking along Pitt Street.

Expert evidence 29Mr Warwick Gosling provided expert planning evidence on behalf of the applicant and Ms Karen Jones provided expert planning evidence on behalf of the Council.

Equivalent zones Evidence 30According to Mr Gosling, the Residential 2(a) Zone (LEP 1991) is equivalent to the R3 Zone (Standard Instrument), because the form of development in the two zones would be similar and there is a commonality of uses permitted in the two zones. 31Ms Jones disagrees with Mr Gosling and in her opinion, there is no equivalent zone in the Standard Instrument to the Residential 2(a) Zone. She says that there are significant differences between the R3 and Residential 2(a) Zones in terms of the nature of permissible uses in the two zones, as consideration of the equivalence of the zones is not limited to a numerical tally, but must also include a consideration of the nature of the permissible uses (quoting from Chami v Bankstown [2012] NSWLEC 1120 par 23). Findings 32As the Director-General has not made a determination in regard to equivalent zones, subclause 5(1)(b) requires the Court to form an opinion as to whether the Residential 2(a) Zone under the provisions of LEP 1991 has equivalent land uses to those permitted in a named land use zone. 33LEP 1991 defines permissible uses with the Residential 2(a) Zone only by listing prohibited uses and permitting any use that is not prohibited. The named land use zones list permissible uses. Subclause 5(1)(a) requires the Court to form an opinion as to whether the zones have equivalent land uses by comparing permitted uses (and not by comparing prohibited uses). 34Mr Seton submits that because the Residential 2(a) Zone only lists prohibited uses, any use not listed as prohibited is permitted with consent and this list of permitted uses should be included in a comparison of permissible uses between the zones. Mr Seton further submits that the list for the two zones must be identical for the zones to be equivalent. 35I have instead approached the comparison by starting with the permitted uses in each of the R2 and R3 Zones in the Standard Instrument and compared each list with whether each use is permissible in the Residential 2(a) Zone (LEP 1991). 36The following table is a comparison of permissible uses in the R2 Low Density Residential Zone and the R3 Medium Density Residential Zone (Standard Instrument) with uses not prohibited by the Residential 2(a) Zone (LEP 1991). Permissible uses in each zone are marked by a dot. USE 2(a) R2 R3 Attached dwellings ● ● Boarding houses ● ● Child care centre ● ● Community facilities ● ● Dwelling houses ● ● Group homes ● ● ● Multi dwelling houses ● ● Neighbourhood shops ● Places of public worship ● Respite day care centres ● ● Seniors housing ● ●

37On the basis of the definition of medium density housing (LEP 1991), the development contemplated by the term 'medium density housing' is sufficiently similar to that contemplated by the definition of multi-dwelling houses in the Standard Instrument. I have therefore taken them as being the same use. As 'Places of assembly' are prohibited in the Residential 2(a) Zone, I have assumed this would include 'Places of public worship' in the Standard Instrument. 38I disagree with Mr Seton's submission that the lists must be identical for the zones to be equivalent. Clause 5(1)(b) refers to 'land uses' in the plural. It is therefore necessary to make a judgment as to whether the set of permissible land uses within a zone is equivalent to the set of permissible land uses in another. It is also necessary to take into consideration the land uses that are not common between the 2(a) Residential Zone LEP 1991 and the named land use zone in order to form an opinion as to the equivalence of the two zones. 39Comparing the permitted uses in the R2 Zone (Standard Instrument) to the Residential 2(a) Zone (LEP 1991), uses common to both are dwelling houses and group homes. The R2 Zone permits boarding houses, which are prohibited in the Residential 2(a) Zone. 40Comparing the permitted uses in the R3 Zone (Standard Instrument) to the Residential 2(a) Zone (LEP 1991), uses common to both are attached dwellings, child care centres, community facilities, group homes, multi-dwelling houses, respite day care centres and seniors housing. Dwelling houses are not included in the R3 Zone and are permitted in the Residential 2(a) Zone and the R3 Zone permits boarding houses, neighbourhood shops and places of public worship, which are not permitted in the Residential 2(a) Zone. 41In considering the set of permissible uses in the R2 and R3 Zones (Standard Instrument) and whether they have been prohibited in the Residential 2(a) Zone (LEP 1991), the numerical tally of shared uses is sufficiently high to find that both the R2 and R3 Zones are equivalent to the Residential 2(a) Zone. In comparing the nature of the uses in the Standard Instrument Zones with the Residential 2(a) Zone, I agree with Ms Jones that the nature of the development envisaged by the R3 Zone is significantly different from the low density residential character in the local area. 42In my opinion and based on the test in subclause 5(1)(b) of SEPP ARH, the R2 Zone is equivalent to the Residential 2(a) Zone, on the basis of the numerical tally of uses in the R2 Zone that are permissible in the Residential 2(a) Zone and also in terms of the nature of the uses permissible in both zones. 43Character of the local area Evidence 44The planning experts agree that the local area is defined as the blocks bounded by Pitt Street, Walpole Street, Gough Street and the M4 Motor Way and includes the properties on the western side of Pitt Street. They agree that the established built form is generally detached dwellings of one and two storeys, with a few dual occupancy developments. 45The planning experts agree that the Pitt Street elevation and form of the front portion of the proposal is compatible with the character of the local area and the streetscape, following amendments made prior to the hearing. 46The planning experts disagree about the compatibility of two storey section at the rear of the proposal. According to Mr Gosling, although the proposal is longer than surrounding development, it complies with the rear setback control in DCP 2007 and it is therefore acceptable. According to Ms Jones, the proposal is not in harmony with the character of the local area as it has a two storey built form that extends 10m beyond the rear alignment of the adjoining dwelling at 108 Pitt Street and a two-storey form at the rear of the site is uncharacteristic. Ms Jones says that because the site is within the R2 Zone under the provisions of the Holroyd Draft Local Environment Plan 2012, the future character of the area will remain low density residential. Findings 47In Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (Project Venture), the then Senior Commissioner considered the question of a proposal's compatibility with its surrounding area, as follows: 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character. 48The key dispute between the experts is focused on the two-storey component of the proposal at the rear of the site. The envelope of the proposal has been formed around maintaining sunlight to the northern, side elevation of 108 Pitt Street to the south of the site, by confining the two storey component of the development on the northern side and rear of the site. The two storey proposal extends 13m beyond the rear façade of the adjoining dwelling at 108 Pitt Street. Mr Gosling says that the two storey rear portion of the proposal is compatible with its surroundings, because it complies with the DCP controls. 49I disagree with Mr Gosling that compliance with the numerical rear setback control makes the proposal compatible with its context. The dual occupancy controls in Part B of DCP 2007 envisage two storey developments with single storey development at the rear of sites with a minimum setback of 4m. The minimum setback control cannot be used in isolation to justify a two storey development in the rear portion of the site. 50The proposal does not respond to the essential elements that make up the character of the surrounding environment. There are a number of contemporary dual occupancy developments within the local area and the two storey component of these developments is confined to the front portion of the site, with single storey development at the rear, so that the bulk of the more intensive development on an adjacent allotment is not visible from the neighbours' back yards. 51I agree with Ms Jones that the two-storey component of the proposal at the rear of the site is uncharacteristic when considered in the context of the local area and it is therefore not compatible with the character of the local area. In my opinion, the two storey rear portion of the proposal will result in unacceptable visual bulk when viewed from the rear terrace and back yard of 108 Pitt Street and when viewed from Robert Street. 52In my view, the proposal would be compatible with the character of the local area if the rear portion of the development were single storey. This can be achieved by deleting Unit 5, the rear unit on the upper level of the proposal. 53The applicant submits that their preference would be to amend the proposal to be single storey at the rear, rather than have the appeal dismissed.

Conditions (Exhibit 9) 54The parties agree to delete the following conditions:

• Schedule A, condition 1
• Schedule B, condition 6
• Schedule B, condition 29
• Schedule B, conditions 49-52
• Schedule B, condition 138 55The parties agree to amend the following conditions:
• Conditions 34 and 93, to read "electronic security shutter door" and delete the word "roller". 56The applicant submits that conditions 2 'Vehicular manoeuvrability' and 3 'Amended plans', which are deferred commencement conditions, should be moved to Schedule B of the conditions so that the information is provided prior to the issue of a construction certificate. 57The applicant submits that Schedule B, condition 77, requiring a lapped and capped timber paling or Colorbond fence to be erected along the boundaries, is not necessary. Findings 58Conditions 2 and 3 will be fulfilled by amended plans to be approved by the Court and can therefore be deleted from the conditions. 59Condition 77 is to be retained, as it makes clear the applicant's obligation in relation to the provision of a boundary fence and provides the Council and neighbours with certainty in regard to the boundary fence.

Interim findings - amended documentation 60Interim findings were handed down on 5 September 2012 requiring amended plans and conditions of consent, in accordance with the following:

• Council was to provide a deferred commencement condition allowing the applicant 12 months to submit evidence of RMS concurrence in accordance with Section 138 of the Roads Act 1993, for the driveway crossover on Pitt Street and the connection of drainage in William St;
• Amended conditions of consent were to be in accordance with the judgment, pars 53 - 58;
• Unit 5, on the upper floor at the rear of the proposal was to be deleted, so that the proposal is single storey at the rear;
• The fifth car space was to be used as a visitor car space;
• The amended documentation was to satisfy Council's versions of condition 2 'Vehicular Manoeuvrability' and condition 3 'Amended Plans', as follows: Vehicular Manoeuvrability

2. Vehicles shall enter and exit the site in a forward direction in accordance with AS2890.1-2004. In addition cars shall be able to access all car parking spaces with sufficient clearance. To satisfy these requirements the following treatments shall be implemented in accordance with plan titled 'Adjustments to Basement Car Park' dated 11 July 2012, prepared by McLaren Traffic Engineering. Amended architectural and hydraulic plans showing details of the treatments and endorsed by a suitably qualified Traffic Consultant/Engineer shall be submitted: a) The southern wall of the ramp shall be shortened on the eastern/bottom end. Also, the pavement in front of car space P1 shall be adjusted accordingly to ensure the ramp and car park gradients are safe (i.e. no steep drop off) and complies with AS2890.1-2004 (i.e. no scraping/bottoming out). b) A 4m turntable (with a 5.8m) clearance diameter shall be installed on the car park aisle opposite car space P5. c) A 'red/green' ramp signal system shall be installed at the top and bottom of the ramp. The stop line at the top of the ramp shall be located 6m inside the property boundary. The signal system shall be set to favour vehicles coming down the ramp and entering the car park. d) The staircase between car spaces P4 and P5 shall be shifted to the east so that the landing for the staircase does not interfere with the car parking aisle and swept path. e) Car spaces P1, P2 and P3 shall be relocated to the east to create a minimum 900mm pedestrian access aisle adjacent to the western storage areas. 2A. Considering the above treatments to be implemented, changes may be required on other sections of the car park. Should changes be required, they must be shown on amended architectural and hydraulic plans and they must comply with AS2890.1-2004 (including driveway, sight distance, car space dimensions, car park aisle width, ramps, gradients, swept path etc). The revised car park design shall be endorsed by a suitably qualified Traffic Consultant/Engineer. Amended Plans
3. The current submitted landscape and hydraulic plans do not correspond with the submitted architectural plans with regard to the driveway layout. In this regard, amended architectural, landscape and hydraulic plans which identify that all approved plans correspond must be submitted to satisfy this condition of consent. Furthermore, the amended landscape plan shall provide for alternative trees to White cedar, Christmas bush and Robinia. 61The applicant provided amended documentation on 21 September 2012 and the Council provided amended conditions of consent on 2 November 2012, attached as Annexure A.

Orders 62The orders of the Court are:

1. The appeal is upheld.
2. Development Application No. 2010/527 for an affordable housing development comprising 4 units in a one and two storey residential apartment building and basement parking, at 106 Pitt Street, Merrylands is approved, subject to condition in Annexure A.
3. The exhibits, other than exhibits 9 and A, are returned.

Susan O'Neill Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2012