AA Tremayne (Kirribilli) Private Hotel Pty Ltd v North Sydney Council

[2007] NSWLEC 435

Reported Decision: 154 LGERA 283

Land and Environment Court

of New South Wales

CITATION:	AA Tremayne (Kirribilli) Private Hotel Pty Ltd v North Sydney Council [2007] NSWLEC 435
PARTIES:	APPLICANT AA Tremayne (Kirribilli) Private Hotel Pty Ltd RESPONDENT North Sydney Council
FILE NUMBER(S):	10791 of 2006
CORAM:	Talbot J
KEY ISSUES:	Development Application :- Whether apartment building adaption - whther low-cost residential building - SEPP 1 Objection approach - merits.
CASES CITED:	Hooken Corporation Pty Ltd v Hornsby Shire Council (unreported 2 June 1986) ; McClenahan and Anor v North Sydney Council (2004) 134 LGERA 379
DATE OF JUDGMENT:	17 July 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr Robson Mr Howard RESPONDENT Ms Irish (Barrister)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

10791/2006 AA Tremayne (Kirribilli) Private Hotel Pty Limited v North Sydney Council

JUDGMENT

1 Talbot J: This is an appeal against the refusal by North Sydney Council of Development Application No. 168/05 (DA168/05), in respect of a site located on the northern side of Carabella Street, Kirribilli, opposite the intersection with Fitzroy Street. The principal street frontage is to Carabella Street, with a secondary frontage along an access handle to Elamang Avenue. The site slopes from Carabella Street in the south-west to the northern corner of the access handle resulting in an average grade of roughly 30 per cent.

2 The first building (Block A), was erected on the site in the 1930’s and was used initially as a YWCA, Hostel. This building is of brick construction with a pitched roof form. Since the building was completed in 1938, several alterations and additions have been carried out.

3 There is a second building (Block B), located towards the rear of the site. This building was constructed in 1964. The two buildings contain a total of 99 rooms.

4 The site is visible from Fitzroy Street, Carabella Street, Elamang Street, Milson Park, Wrixton Park, High Street Wharf and other areas around Careening Cove.

5 In its Amended Statement of Environmental Effects, the applicant summarises the development application as follows:-

· Demolition of Block B, demolition of majority of portions of Block A, and all ancillary structures on the site;

· Removal of selected trees and other vegetation;

· Excavation of 2 levels for car parking for a total of 22 vehicles;

· Retention of portions of front elevation of Block A to Carabella Street and side elevations;

· Develop the site for the purpose of a residential apartment building of 19 dwellings, comprising:

3 X 1 bedroom units; 9 X 2 bedroom units;
6 X 3 bedroom units; and 1 X 4 bedroom unit.

· Provision of communal facilities including a common room, swimming pool and landscaped open space.

6 The proposed development retains part of the external walls on the south-eastern, south-western and north-western elevations of the existing Block A. There will be some modification to the partly retained walls by changes to the fenestration and articulation. The whole of Block B will be demolished.

7 The site is located in a part of Kirribilli characterised by a variety of built forms generally residential in character, ranging from apartment buildings of inconsistent sizes and heights through to small terraces and townhouses interspersed with single dwellings many of which have heritage significance. Loreto Convent School adjoins the site along its south-east boundary and part of the north-east boundary. The land is in the Residential C Zone under North Sydney Local Environmental Plan 2001 (NSLEP 2001). The south-east boundary of the Careening Cove Conservation Area, coincides with the northwest boundary of the site. The Loreto Convent School is itself an Heritage Item under NSLEP 2001. A number of single heritage items are located nearby in Carabella Street, Fitzroy Street and Elamang Avenue. Many of these items are outside the Careening Cove Conservation Area. The Kirribilli Conservation Area extends in an easterly direction at the far end of Carabella Street in the vicinity of the site.

8 It is part of the council’s case that State Environmental Planning Policy No.10 – Retention of Low–Cost Rental Accommodation (SEPP 10), applies to the proposed development and therefore requires the concurrence of the Director General of Planning, pursuant to cl 7(3), prior to approval. The applicant contends that the existing buildings at 89 Carabella Street, Kirribilli, comprised “backpackers accommodation” as defined in cl 3(1) of SEPP 10 as at the relevant date namely 28 January 2000 and accordingly fall within the exception from the application of SEPP 10 in cl 6(2)(b).

9 The Director-General appeared on the second day of the hearing to advise the Court that he has no interest in making submissions or presenting evidence in respect of the issue whether SEPP 10 applies. However, in the event that the Court finds otherwise, the Director-General will seek to be joined as a party and to be heard on the issue of concurrence. Directions have been made requiring the applicant to provide the evidence upon which it relies to justify the giving of concurrence in accordance with the provisions of SEPP 10 to minimise the extent of any delay in dealing with the further issue if it arises.

10 Apart from permissibility the council has raised general issues regarding the alleged, adverse impact on streetscape, inadequate landscaping, visual amenity from outside the site, structural problems during construction, excavation and draining issues, traffic issues, compliance with aims and objectives of NSLEP, breach of standards in the council’s development control plans and the adverse impact on amenity of other properties, particularly the Loreto Convent School.

11 As a consequence of the joint conferencing process the experts have been able to narrow the real issues that exist between them. The Court has the benefit of an extensive view of the site and the locality in general.

Permissibility

12 Clause 10 of the NSLEP 2001 provides: -

10 Permissible development
Subject to other provisions of this plan, development that is specified in the Table to this Part as permissible within a land use zone, other than exempt development, is development that may be carried out in that zone, but only with development consent.
Clause 11 NSLEP 2001 provides: -

11 Prohibited development
Subject to other provisions of this plan, development that is not specified in the Table to this Part as permissible in a land use zone, other than exempt development, is prohibited development in that zone and must not be carried out in that zone.

13 Under the land use table for the Residential C zone, development for the purpose of an apartment building is permissible with consent. The applicant contends that the proposed development is an apartment building. An apartment building is defined in Schedule 2 NSLEP 2001 as follows:-

apartment building means a single residential building containing three or more dwellings but does not include attached dwellings.

14 The Council originally characterised the development as an apartment building revision, as defined, but now submits it falls within the following definition of an apartment building adaptation in Schedule 2 NSLEP 2001.

apartment building adaptation means the creation of an apartment building substantially within a building (other than an apartment building) that lawfully existed on the appointed day.

15 The reality is that only parts of 3 sections of the existing walls of Block A will be retained. There are many examples where buildings that were previously used for an industrial purpose such as a wool store or factory, are maintained substantially within the original external structural form but wholly refurbished internally and adapted for a residential purpose. The proposed building cannot in that sense be regarded as being created “substantially within” the existing building.

16 The intention to regard an apartment building adaptation as retaining the existing structure in substantially the same form is confirmed by the provisions of cl 26(1) of NSLEP 2001 which identify particular objectives as follows:-

(1) Apartment building revision or adaptation objectives
The specific objectives of the apartment building revision or adaptation controls are to ensure that development for the purpose of apartment buildings in apartment or other buildings that lawfully existed at the appointed day:
(a) is carried out substantially within the fabric of the existing building, and
(b) substantially retains the existing external walls and roof of the building in its existing dimensions and locations, and
(c) minimises the extension of buildings to accommodate apartment development, and, in particular, minimises any increase in the height or gross floor area of the building, and
(d) minimises any reduction in the landscaped area of the site.

17 The applicant relies on the following matters to support the proposition that the proposal is not an apartment building adaptation: -

(a) A major portion of the gross floor area of the building (approximately 46%) will project beyond the fabric of the existing building.

(b) The roof of the existing building is not retained.

(c) Following the demolition of Block B, there will be one apartment building on the site where there are presently two buildings.

(d) The physical fabric of the existing building will be changed extensively.

18 The Council relies on the decision of the Court of Appeal in McClenahan and Anor v North Sydney Council (2004) 134 LGERA 379 to argue that what is proposed can be properly characterised as an apartment building adaptation meeting the objectives of clause 26. Sheller JA agreed with Lloyd J at first instance when he said at [11], “the development may be carried out outside the fabric of the existing building, without retention of existing external walls and roof of the building or with an increase in the height or with a reduction in the landscaped area of the site. It is important that at that time the word “substantially” did not appear in the definition. The decision can be further distinguished on the basis that the Court of Appeal did not have regard to the facts. What the Court was considering was whether a particular construction of the LEP adopted by Lloyd J was appropriate. The final determination in each case will depend on the individual facts after an examination and proper understanding of the description of what is proposed.

19 However, Sheller JA after referring to cl 26(1) also observed at [11] that “in such situations, the objectives of the apartment building adaptation controls are to limit the extent to which this happens by ensuring that the development, for example, is substantially within the fabric of the existing building”.

20 In order to regard the subject proposal as substantially within the existing building requires the Court to ignore the plain meaning of the words “substantially within”. The most that can be said of the relationship between the existing building and the proposed development is that the latter will retain some structural elements of the former. The extent of proposed demolition denies the prospect of accepting that the new building will be within the existing building to any extent let alone substantially within it. Only parts of three vertical elements will be retained, principally the southwest extremity nearest to Carabella Street. They will not have a sufficiently total enclosing effect to justify a description of being substantially within the fabric of the original building. The roof will be totally replaced.

21 On the above basis, I have decided that the development is not prohibited as an apartment building adaptation.

22 Moreover, an apartment building is a genus of development that is permissible in the zone. An apartment building adaptation is a species of the genus. Therefore an apartment building adaptation as defined is nevertheless an apartment building. It is not excluded from the definition of an apartment building, whereas the definition specifically does not include attached dwellings. There is no exclusion of any other buildings that may be a particular type of apartment building either as specifically defined, or generally.

23 To construe the NSLEP 2001 so that an apartment building adaptation is not permissible in a zone where an apartment building is permissible would be illogical. It would have the effect of excluding one type of development that inevitably would have similar characteristics and consequences as another, at least in a planning context. I perceive nothing in the objectives of the Residential C zone or cl 26 that supports a theory proffered on behalf of the respondent, that an apartment building adaptation is prohibited in order to achieve a purpose of promoting urban renewal in the zone.

24 Determination that the proposed development is permissible with consent renders argument relating to an existing use nugatory, and accordingly I do not propose to deal with it.

Application of SEPP 10

25 The stated aim of SEPP 10 is to provide a mechanism for the retention of low-cost rental accommodation. Two general definitions are relevant:-

backpackers accommodation means a building used for the purposes of providing accommodation for tourists, travellers or persons engaged in recreational pursuits and that:

(a) may have shared facilities, such as a communal bathroom, kitchen or laundry, and

(b) will generally provide shared accommodation in which there are two or more persons in a room, and

(c) will generally provide temporary accommodation, but may provide permanent accommodation.

boarding-house means a building:

(a) that is wholly or partly let inn lodgings, and

(b) that provides lodgers with a principal place of residence for 3 months or more and

(c) that generally has shared facilities, such as a communal bathroom, kitchen or laundry, and

(d) that has rooms with one or more lodgers

and includes a hotel (not being premises to which a hotelier’s licence under the Liquor Act 1982 relates).

26 Clause 3A relevantly provides:-

(1) In this Policy, low-rental residential building means the following:
(a) boarding-house,
(b) a hostel
(c) a residential flat building containing a low-rental dwelling

(2) ….

(3) In this Policy, low-rental residential building includes a building:

(a) that, at the time of lodgement of a development application to which this Policy applies, is lawfully used for a purpose specified in subclause (1), irrespective of the purpose for which the building may have been erected, or
(b) that was used for a purpose specified in subclause (1) but has been changed unlawfully to another use, or
(c) that is vacant but the last significant use of which was for a purpose specified in subclause (1).

27 Clause 6 relevantly provides:

(1) This Policy applies only to those buildings that are low-rental residential buildings as at 28 January 2000, and does not apply to any building that becomes a low-rental residential building after that date.

(2) This Policy does not apply to a building:
(a) ….
(b) that comprises backpackers accommodation, a motel or any premises to which a hotelier’s licence under the Liquor Act 1982 relates or

28 It is apparent from the above that a boarding house is one form of low-cost rental accommodation except where it provides backpackers accommodation as defined in cl 3(1). The use is to be determined as at 28 January 2000.

29 Examination of an extended history taken from the council’s records relating to the property shows that for a considerable period of time following its acquisition by the applicant in 1978 the use of the premises was variously described in terms consistent with use as a boarding house providing low-cost accommodation. Much of this information is sourced from representations made on behalf of the applicant. The property was licensed, or the subject of an application for a licence, as a boarding house or house let in lodgings in each of the years 1979, 1980, 1982, 1983, 1984, 1985, 1986,1989, 1990 and 1991. Development applications and building approvals as well as rating information lodged with or dealt with by council between 1978 and 2001 made references to the use of Tremayne as a boarding house, a private hotel or as providing accommodation for those in need whether it be overnight short, medium or long term.

30 The applicant recognises the purpose of SEPP 10 is to ameliorate or offset the perceived social impact occasioned by the loss of traditional boarding house accommodation. However, it is evident by the express exclusion of backpackers accommodation from the ambit of the policy that it is not part of the purpose to capture that category of use, regardless of whether such accommodation is provided at low-cost and also answers the description of a boarding house. According to Mr Robson SC, who appears for the applicant, it does not matter whether the respective definitions of boarding house and backpackers accommodation are mutually exclusive or not because either way if the subject buildings at the relevant date in 2000 comprised backpackers accommodation they are excluded from the ambit of SEPP 10. I agree.

31 The applicant further contends that the specification of tourists, travellers or persons engaged in recreational pursuits in the definition of backpackers accommodation recognises a distinction between different categories of lodgers or hotel guests. The dictionary meanings for lodger and lodgings fasten upon the concept of accommodation provided in another’s house for payment, either as a dwelling place or temporary accommodation. The definition of boarding house in SEPP 10 extends the concept to a building that is wholly or partly let in lodgings, that provides lodgers with a principal place of residence for 3 months or more, generally with shared facilities such as communal bathroom, kitchen or laundry.

32 Both definitions in SEPP10 contemplate provision of permanent accommodation with the distinction that only the boarding house definition specifies providing a principal place of residence for at least 3 months.

33 The reference to “a principal place of residence” is rightly identified by the applicant as a threshold requirement. Moreover, the provision of accommodation for a period of 3 months or more does not necessarily bring the building within the definition unless it is also used as a principal place of residence that is a home rather than a place to stay for the time being.

34 It is the applicant’s over-arching submission that SEPP 10 has no application to the proposed development by virtue of the fact that at all relevant times the use of the Tremayne buildings was for now the defined purpose of backpackers accommodation. The effect of cl 6(2)(b) is to exclude the buildings from the scope of SEPP 10 by virtue of falling within the definition of backpackers accommodation.

35 Two questions arise:

(a) As at 28 January 2000, was Tremayne being used for the purpose of a “backpackers accommodation” as defined in clause 3 of SEPP 10?

(b) If so, was the use of Tremayne changed unlawfully from a “boarding house” to “backpackers accommodation” prior to 29 January 2000?

36 Anthony John Tauszik is the son of the original principals of the applicant company. When the company purchased Tremayne in 1978, he was 15 years old and a student at a boarding school. However he has been personally associated with the day to day running of Tremayne since about 1983. He has given the following relevant evidence, which remains largely unchallenged.

(a) Tremayne was operated from 1979 and into the 1980’s as a private hotel offering accommodation to travellers.
(b) Many of the guests in the opening years were women based in country areas who were visiting the city and had previously stayed at Tremayne when it was operated by YWCA as a hostel for young women.
(c) In the late 1970’s and early 1980’s there were often travellers from New Zealand, England and West Germany staying at Tremayne.
(d) Since taking over the management of the business from his father in about 1985 the duration of stay by guests has been variable; some stayed for days; some stayed for weeks; some stayed for months and a few stayed for more than a year.
(e) From about 1983 overseas students stayed at the premises whilst undertaking study for a short term.
(f) Booking agents have arranged accommodation for overseas travellers predominantly young women, mainly from Asia.
(g) During the bi-centenary celebrations the occupancy rate was often at 90% - 100%, in particular from England and Japan.
(h) In the 1990’s through to 2000 he placed advertisements in TNT a backpackers magazine as well as other similar publications such as Lonely Planet.
(i) From about 1996 through to after the 2000 Olympics Tremayne was nearly always fully accommodated with all types of overseas students, tourist and travellers.
(j) The rooms have been modernised and upgraded over the years but the original 1970’s mode of dormitory style accommodation with shared kitchen, laundry, TV room, dinning room and bathroom/toilet facilities has been maintained.

37 The evidence of the use of Tremayne from Mr Tauszik is corroborated to a large extent by Michiyo Toda who operates an educational consultancy for overseas students from Japan. Since at least 1999 she almost always has used Tremayne as initial accommodation for her clients. Normally she uses Tremayne as a place for her clients to stay for one to three weeks prior to them obtaining longer term accommodation.

38 Other witnesses have provided evidence (including a statutory declaration made by the late Mr Tauszik Senior in 2004) of the nature of the use of Tremayne over the years corroborating the pattern established from the late 1970’s and continued into the early 1990’s.

39 The accommodation has been generally provided in approximately 100 separate rooms many of which accommodate multiple occupancy. There is evidence that at least 20 persons listed 89 Carabella Street, Kirribilli as their residential address on the 1999 New South Wales Electoral Roll. An information technology expert Armin Nehzat has collated and processed data from a ledger book and accounting report for the period 21 December 1999 to 30 January 2000. The records were produced to him by the applicant. In his opinion the raw data provided in the ledger book and accounting report lists the names of between 690 and 763 unique names of which between 2.22% and 2.45% were names on the list generated from the electoral roll.

40 Mr Tauszik was challenged by Ms Irish, who appears for the council, to explain an apparent inconsistency between the characterisation of the premises in his affidavit evidence and information provided to the Office of State Revenue (OSR) for the 2000 Land Tax Year as at 31 December 1999. The information included a statement that as at 31 December 1999 at least 80 per cent of the occupants were long term residents with full board and lodging. Mr Tauszik explained that the information provided for land tax purposes was in accordance with OSR guidelines. The guidelines defined a long term resident as a person who resided at a boarding house for 3 consecutive months or for any periods totally 3 months. Mr Tauszik says he construed the meaning of long resident for land tax purposes as any occupant who stayed for 3 months or longer but not necessarily as a permanent resident. In the case of overseas travellers for example, the principal place of residence would be in their homeland. It was not uncommon for travellers to stay for periods of 3 months or more.

41 Mr Robson submits that Mr Tauszik’s evidence in relation to travellers commonly staying at Tremayne for periods of 3 months or more is consistent with Tremayne properly falling within the definition of backpackers accommodation in SEPP 10. He asserts there is no evidence that compels a contrary conclusion to that which recognises the building was used for the purposes of providing accommodation for the category of persons referred to in the chapeau to the definition as “tourists, travellers or persons engaged in recreational pursuits”. Consistent with that conclusion is the fact that generally the buildings were used for temporary accommodation. More permanent accommodation was provided in some cases but not as a principal place of residence. Furthermore he says it was not until the latter part of the period after 1978 that the label “backpackers accommodation” came into vogue so that it is not surprising that other descriptions such as boarding house or hostel were used from time to time. The use for those purposes was an approved use.

42 Conversely, and not surprisingly having regard to the way the appeal has been contested by the council, it contends that the buildings at 28 January 2000 fell inextricably within the definition of “low rental residential building” as buildings that provided lodgers with a principal place of residence for 3 months or more.

43 I agree that in a wide general sense the use of Tremayne has not changed. The business has been conducted to consistently provide shorter term accommodation generally for persons who have no intention of treating Tremayne as a principal place of residence. That latter fact alone takes the use outside the definition of a boarding house in SEPP 10. There is no question that the facilities provided have amounted to board and lodging at various times but the council has not, established through reliable evidence that the use can be characterised solely as a boarding house defined in SEPP 10. There is no question that the buildings have been used to a large extent generally for the purpose of providing accommodation consistent with the specific definition of backpackers accommodation in SEPP 10. It is not necessary for the buildings to have been used exclusively for that purpose in order to avoid label of boarding house in accordance with the definition. Nevertheless it is open to find on the balance of probabilities that both buildings were used at 28 January 2000 “for the purpose of providing accommodation for tourists, travellers or persons engaged in recreational pursuits”, with shared facilities and accommodation.

44 It is equally open to find that the use equated to a boarding house in a general sense but not as one that “provides lodgers with a principal place of residence for 3 months or more”. The applicant has proved its case to the requisite standard, and the council has not provided sufficient evidence to justify a contrary finding.

45 I determine therefore that SEPP 10 has no application to the existing buildings. The concurrence of the Director General is not required.

The Merits of the Application

46 As a consequence of extensive conferencing between the experts the preparation of joint reports and discussion during the site inspection the remaining issues in respect of the merits of the application are limited.

47 I agree with the applicant that it is not appropriate to regard the site as a green field or blank canvas. Block A in particular is already part of the existing streetscape. In terms of shape bulk and scale the proposed building will appear in many respects in the same form although the character of the façade will be significantly altered modernised and improved. By retaining elements from the façade and the setback from Carabella St, the design of the new building will in many respects comply with the aims and the objectives of SEPP 65 by respecting the surrounding locality and reinforcing the existing character of the street. An older form of apartment type building will be replaced with a modern apartment building occupying an overall reduced footprint but presenting to the street with consistent scale, mass and context.

48 I am satisfied that in terms of the Character Statement for the Kirribilli Planning Area, the development will reflect and reinforce the existing built form and distribution of accommodation types. Having regard to the various building types throughout the neighbourhood, I consider the development will be compatible with neighbouring development in terms of bulk, scale and appearance as required by the specific aims of NSLEP 2001. Consistent also with the objectives of the Residential C zone, the development will provide apartments as a contribution to the range of residential accommodation in proximity to transport and other services.

49 The applicant relies on SEPP 1 objections in relation to building height (cl 17 NSLEP), building height plane (cl 18 NSLEP) and façade length. The considerations necessary in regard to a SEPP 1 objection as explained by Cripps J in Hooken Corporation Pty Ltd v Hornsby Shire Council (unreported 2 June 1986) and have been so often repeated over the years they need not be reiterated again here. In the case of each of the above standards the discrepancies are not significant. Having regard to overall height, bulk and scale of the building in the context of existing development in the locality including the subject site, I do not consider that strict compliance with the respective development standards is necessary in the circumstances. The aim of controlling height and form is satisfied in respect of view loss, overshadowing, privacy and solar access and the façade length is satisfactory given its broken form, enhanced design and external treatment. I allow the SEPP 1 objections as to do otherwise would be an exercise in requiring particularly strict compliance where the exceedance is hardly discernable in terms of impact following demolition of Block B and a further setback from the north-western boundary. The objectives of the standards are therefore satisfied.

50 Any issues in relation to landscaping that remain relate to the strength and quantity of planting. The experts had agreed in principle following joint conferencing under the Court’s direction but further changes were made along the boundary with Loreto school after I made some pertinent observations on and following the site inspection. Although the situation is still not ideal, what is proposed along that boundary is satisfactory and if implemented and maintained as now contemplated there should be adequate respect for the amenity of the adjoining school building and pedestrian path along the boundary. Steps have also been taken to ensure a more impenetrable vegetative barrier with a timber fence on top of the retaining wall along the boundary of the site above the outdoor playing area at Loreto at the northeast boundary. Conditions will ensure that the landscaping as prescribed is established but encouragement and maintenance of the plantings as contemplated by draft conditions will be an essential requirement for the success of the scheme.

51 The council criticises what it perceives to be inadequate communal open space. I agree that the actual area is limited but what is proposed appears to be high quality in a development that provides significant terrace areas as private open space, thereby reducing the demand for communal areas. The landscaping plans are sophisticated and responsible so that given the concessions made by the applicant during the course of the hearing and agreed conditions, I am satisfied that strict compliance with the development standards for landscaping in the LEP is unnecessary.

52 When the issues in relation to heritage are analysed and properly understand the argument relates to how the proposed building will appear in its setting within the locality as viewed from a number of vantage points. Again the argument is fastidious and pernickety as in reality the building will not be prominent when viewed from the harbourside and within the conservation areas. On the view it became apparent that the building is likely to blend in with existing development and with an adjustment to one part of the building at the uppermost level, to be stipulated in a condition of consent, will hardly be discernable. In my opinion, the deletion of an en suite at that level is not a reasonable requirement in pursuit of what, in reality, is an optimum result.

53 The principal of Loreto, expressed concerns about proposed window openings and balconies along the school boundary in terms of privacy. I am not persuaded that her perception of the detrimental effect in that respect will be realised but nevertheless the conditions should ensure that the window openings are suitably treated with louvres or similar devices along that façade to obviate the prospect of overlooking. The terms of a proposed condition have been settled between the experts. The balconies are not of sufficient size to justify deletion but their omission would add further to the reduction of the perception of intrusion to privacy. The amenity afforded to future residents by the provision of the balconies will not be considerable. However on balance I do not find it necessary to require the balconies to be deleted.

54 As the case has progressed various issues have risen and fallen as the experts have conferred and agreed on a way forward. Although not all questions have been finally settled between the parties nevertheless the areas of dispute have diminished sufficiently to regard the outstanding concerns as not determinative. Generally speaking satisfactory conditions have been agreed that reflect the outcome of this process.

55 Issues raised by objectors have in the main intersected with the formal issues raised by the council. They relate generally to the question of the fit of the building into the existing environment in the context of the suitability of the type of building and impact on the amenity of the area in a number of respects. For the reasons explained, where directly relevant to the objectors’ concerns, I am satisfied that the development overall is acceptable and that the concessions made by the applicant itself and through its experts either by amendment to the plans or agreement to the imposition of conditions has resulted in a satisfactory outcome. I therefore propose to approve the development application, subject to conditions. The appeal will be upheld.

56 Generally speaking the without prejudice conditions of consent are settled and agreed between the parties but in some cases the final form of the conditions depends upon the outcome in this judgment.

57 I direct the parties to settle the formal orders to reflect these reasons and to file the agreed form of orders to be signed and sealed by the Registrar within 14 days. In the unlikely event that there are matters that remain in contention in respect of the conditions, either party has liberty to apply within that 14 day period. Nevertheless it must be understood that the opportunity to settle the conditions in the above way is not an invitation to, or licence for, either party to re-address the conditions in a comprehensive way. They are already well settled and only a few minor changes may be necessary. That process is best handled by the parties approaching the task in a co-operate and pragmatic way. Any further hearing may raise a serious question in relation to costs in that respect.

58 There is no reasons why the exhibits should not be returned at this stage and I so order.