Abboud v Hunters Hill Municipal Council

[2005] NSWLEC 556

Land and Environment Court

of New South Wales

CITATION:

Abboud v Hunters Hill Municipal Council [2005] NSWLEC 556

PARTIES:

APPLICANT
Joseph Abboud

RESPONDENT
Hunters Hill Municipal Council

FILE NUMBER(S):

10281 of 2005

CORAM:

Nott C

KEY ISSUES:

Development Application :- Proposed demolition of two houses being contributory items and the erection of 10 townhouses - whether houses can be demolished - appearance in the streetscape of the townhouses - privacy and amenity of adjoining residential flat buildings - amenity of single dwelling houses at the rear in a 2A zone including a heritage item - protection of one of the largest lilly pilly - adverse impact on the lilly pilly from three of the units which should be deleted

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 97
Hunters Hill Local Environmental Plan No. 1
Development Control Plan No. 15

DATES OF HEARING:

5 August, 6 and 7 September 2005

 
DATE OF JUDGMENT: 

10/11/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mrs Mary-Lynn Taylor, solicitor
SOLICITORS
Norman Waterhouse

RESPONDENT
Mr J Cole, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Nott C

11 October 2005

10281 of 2005: Joseph Abboud v Hunters Hill Municipal Council [2005] NSWLEC 556

JUDGMENT

1 This is an appeal against the council’s refusal of a development application to demolish two houses at 63-65 Ryde Road, Hunters Hill, and to erect 10 townhouses.

2 The main issues were: whether the two dwellings may be demolished as they are contributory buildings under the Hunters Hill Local Environmental Plan No. 1; whether the proposed replacement townhouses are of a suitable design; the privacy and amenity of adjoining dwellings; and whether the proposed development should be refused because of its impact on one of the largest lilly pilly trees in Hunters Hill (this last issue was the most important issue in the hearing). The issues are more fully set out in a filed statement of issues dated 24 June 2005.

3 I adopt the Statement of Basic Facts which describes the site and locality, the relevant statutory controls in the LEP and in DCP No. 15, and gives a history of the development application up to 14 June 2005, when council refused the application.

4 At the hearing, I heard evidence for the council from 9 local residents, Mr G Patch (chartered architect and heritage consultant), Mr P Sutton (parks-landscape co-ordinator). Evidence for the applicant included reports or oral evidence from Mr M Hartley (arborist), Mr M Jeffery (consulting engineer), Mr R Staas (architect and heritage consultant) and from the applicant himself. I also received evidence from a Court-appointed town-planning expert, Mr J Vesico. Several of the resident objectors engaged the services of Mr K Hill, a practising and consulting arborist, from whom I also heard evidence. I have taken into account all the other evidence presented at the hearing and have been aided by a view of the site and locality.

5 For the reasons given below, I am of the opinion that it would be appropriate to grant development consent for the demolition of the existing houses and their replacement by seven of the proposed townhouses. Three townhouses, units 7, 8 and 9, will be deleted because of their likely impact on the large lilly pilly. The deletion of units 8 and 9 will also incidentally overcome certain other objections from the neighbours whose properties adjoin the rear boundary of the site.

6 The proposed development can be seen in more detail in the amended plans prepared by Joseph Abboud Design Co in conjunction with Kennedy Associates, namely:

• 0314 A02J amended 6-Sep-05 (ex S)
• 0314 A03J amended 6-Sep-05 (ex S)
• 0314 A04J amended 6-Sep-05 (ex S)
• 0314 A05I amended 18-Aug-05 (ex O)
• 0314 A06J amended 6-Sep-05 (ex S)
• 0314 AO7J amended 6-Sep-05 (ex S)

7 Mr R Staas originally carried out a heritage assessment of the two houses on the subject land in May 1998. Subsequently, for the purposes of the present appeal he prepared a report dated July 2005, which included an attached statement of heritage impact of the same date. For the council, Mr Patch prepared a quite detailed 26-page report in which he argued that the applicant had not established a sufficient case for the removal of the contributory buildings (ex 2).

8 In their joint statement, Messrs Patch and Staas agreed on the following:

1. The cottages to the subject properties are identified as “Contributory Buildings” at Schedule 7 of the Hunters Hill LEP [HHLEP].

2. Schedule 7 “Contributory Buildings” are not included in the definition of “Items of Environmental Heritage” in the HHLEP.

3. The subject cottages are typical though relatively modest examples of the Interwar Bungalow style of residential architecture, located on an “alternative traffic route” road, albeit the major thoroughfare through this portion of Hunters Hill.

4. The boundary of Hunters Hill Conservation Area No. 1 (“The Peninsula”) runs along Ryde Road opposite the sites, and to the rear boundary of the subject properties, and specifically excludes them, hence their “Contributory Building” listing as buildings outside of a Conservation area.

5. There is one Heritage Item listed at Schedule 6 of the HHLEP, “Daybreak” at 2 James St, that shares a common boundary with the subject site. A Moreton Bay fig tree in the grounds of “Daybreak” is also listed at Schedule 6 in the HHLEP.

6. There are a number of Schedule 6 “Heritage Items” in the surrounding area, including 2 Martin Street, Nos 24, 69,73,75,77 and 79 Ryde Road.

7. There are a number of Schedule 7 “Contributory Items” along Ryde Road, including the subject properties, Nos 72,74,78,81,83, and others further to the north west.

8. While there have been some internal and external modifications made to the subject cottages and their settings, they appear to be in sound structural condition and substantially intact.

9. The experts agree that the properties are located within an area zoned Residential 2(c) under the HHLEP, which allows the erection of residential flat buildings.

10. The experts agree that the area has been the subject of a number of waves of development, with the late 19th century, and early twentieth century being represented by the heritage items and contributory buildings respectively, and post WW2 development of blocks of flats to the properties either side of the subject site, and intermittently along Ryde Road. Late 20th century and more recent developments are also represented in the vicinity on the opposite side of Ryde Road.

9 Having agreed upon the above matters, Messrs Patch and Staas identified the heritage issues and then stated their points of disagreement:

Heritage issues:
The primary heritage issue in the case is the permissibility of the demolition of the existing buildings to allow for new development in accordance with the zoning.

The secondary heritage issues relate to the compatibility of the infill design to the surrounding context and any impact on heritage items in the vicinity.

The Experts Disagree on the Following:
The Experts continue to disagree on a number of key issues discussed in their Statements of Evidence:

1. Mr Staas is of the opinion that the subject cottages are of insufficient contributory value to warrant their retention, and describes them as having “somewhat basic representative character as examples of Inter War development in the Hunters Hill District”. Mr Staas considers that in the context of the adjoining Post WW2 flats that appropriate infill development is acceptable and that alternative proposals are largely irrelevant to the proceedings.

Mr. Patch maintains that the cottages have been listed as “Contributory Buildings” because of the fact that they are identifiably of the Interwar period, are substantially intact, and represent, together with other “Contributory Buildings” along Ryde Road, the “third wave” of development of the area. Their retention on the list of “Contributory Buildings” has been confirmed in a recent review of Schedule 7 items undertaken by Paul Davies and Associates. They are in apparently sound structural condition, and the need for demolition has not been demonstrated through the investigation of alternative proposals that allow their retention.
2. Mr Staas is of the opinion that the proposed residential building is an appropriate “infill” development in the context of the area, and will have limited impact on the various listed heritage items. He considers the design is a reasonable response to the DCP controls and to issues relating to maintaining significant landscape features as well as avoiding privacy and shadowing issues to adjoining properties.
Mr Patch maintains that the proposal is of a form that is alien to the character of the area. This is a function of the proposed disposition of buildings on the site, the presentation of an uncharacteristically long two storey façade to the conservation area at the rear and also to the heritage item at 2 James Street, the nature of the basement carparking access ramp, the massive masonry walls to Ryde Road, and aspects of the proposal in terms of its architectural expression.


3 The experts disagree on the existing character of the area. While both agree that there are “...mixed development types including three storey walk up flats and double and single storey residences...”, Mr Staas maintains that the three storey walk up flats predominate in the immediate context, while Mr Patch contends that they are the exception rather than the rule and the area exhibits a complexity of development phases that is typical of Hunters Hill with the maintenance of this evidence being one of the primary objectives of the HHLEP.


4 The experts disagree on the impact on the wider community of the loss of the “Contributory Buildings” and the proposed development. Mr Staas believes that there will be no notable impact arising from the proposed demolition on the area. Mr Patch maintains that there has been a clear expression of potential loss by residents in the vicinity. Residents have also expressed genuine concerns as to loss of amenity arising from the proposed development. While amenity considerations are not explicit heritage concerns, the reduction in amenity of a heritage item has the potential to compromise longer-term desirability and hence conservation of a heritage item. Mr Staas does not consider that there are any significant adverse amenity impacts on any heritage item in the immediate context.

10 Even assuming that the existing houses on the subject site have a contributory value that is as high as that indicated by Mr Patch, nevertheless there are limited areas zoned 2(c) in Hunters Hill. In the subject locality, the 2(c) zone embraces only the two residential flat buildings either side of the subject properties, the subject properties themselves, a dwelling house at No. 69 and residential flat buildings at No. 71. The 2(c) zone recognises that, subject to development consent, a higher form of density than dwelling-houses may be appropriate at the subject site. Because of the disposition of the existing houses on the subject site and the constraint of the large lilly pilly tree at the rear, the realisation of a medium density development on the subject land would be difficult to achieve if the two houses are kept as well as the tree and if new dwellings were added including provision for on-site parking.

11 Having regard to the whole of the evidence relating to the planning controls, I have concluded that the two subject houses may be demolished provided that a suitably presented new development has been approved. The two existing houses on the subject land, although adjoining a conservation area at their rear, make no significant contribution to that area and do not sufficiently form part of a significant setting of any nearby heritage item. As mentioned above (par 8, points 6 and 7), there are heritage items as well as other contributory buildings located towards the northwest in Ryde Road. The houses on the subject site do not have the added status of heritage items. If they had the status of heritage items, there would be a stronger case for their retention. It seems to me that the demolition of the subject houses will not adversely impact upon the other contributory buildings outside the 2(c) zone or set an unacceptable precedent.

12 The original plans were unsatisfactory as regards the appearance of the proposed development in the streetscape of Ryde Road, according to the evidence of Mr Patch given on the first hearing day. During the on-site hearing, various recommendations were made by Mr Patch and these recommendations were adopted with amended plans that were produced following an adjournment of the proceedings. (This adjournment had to occur in any event because the time allotted for the hearing was inadequate having regard to the extent of the evidence to be given.)

13 Looking at the street elevation of the proposal in the context of the adjoining buildings (plan AO7J, ex S), I am of the opinion that the appearance of the proposed townhouses is quite satisfactory. However, on reflection, the proposed cover over the entrance (shown on some plans and not on others) should be deleted (condition 117). The appearance of the development will also be compatible with the single dwelling houses further to the north-west, including the closest at No. 69. In the amended plans before the Court, the fencing and the facade treatment of the proposal have been improved. Although there is an entrance for the underground carparking on the south-eastern side of the subject site, the existing driveway on the north-western side will be eliminated. As well, a better landscaping treatment will be provided than originally proposed. The setback of the proposed building from the road alignment complies with the DCP, the width of the main frontage of the townhouses is approximately 12.6 m, whereas of the width of the whole site is 30.4 m. Although unit 10 can be seen on the south-eastern side in the elevation plan, nevertheless in reality that unit will not be immediately apparent from the street because it is set back 26 m from the street alignment, and it will be substantially screened by a tree proposed at about 21 m from the street frontage located in front of townhouse 10 and by the landscaping required along the south-eastern side boundary.

14 The original proposal would have resulted in excavation in the south-eastern corner of the subject land which would have affected a Jacaranda tree on the immediately adjoining property close to the side boundary. To overcome this problem the garbage-bin storage area has been moved to a suitable location and the levels of the subject land in the south-eastern corner will not be altered. In front of the main presentation of the townhouses to the streetscape, that is in front of townhouse 1, there will be landscaping along the street boundary as well as two trees. Landscaping that grows above fence height for the private courtyards on the north-western side of townhouses 1-6 will also screen to some extent a view from the street between the existing residential flat building at No. 67 and the proposed townhouses.

15 In the light of the amendments that have been made and the further changes that will be required to the rear of the proposed development, I am of the opinion that the proposal is consistent with the objectives of the planning controls referred to in Issue 1.

16 I expressed some concern about whether vehicles could safely turn out from the side into Ryde Road during peak hour. However, I accept the evidence that was subsequently given by Mr C Hazell, consultant traffic engineer, and conditions that he recommended will be imposed.

17 As regards privacy and amenity for the neighbouring flats, those flats to the south-east will not be adversely affected because of the general setback of the proposed units and the landscaping strip between the common boundary with that property and the proposed driveway.

18 The neighbours to the north-west in the residential flat building at No. 67 expressed major concerns about the probable loss or substantial truncation of the large lilly pilly (which will be considered later in this judgment) and about privacy issues.

19 In relation to privacy, it has to be recognised that the subject land is zoned to permit townhouses. The residential flat building at No. 67 is set back only 3 m from the north-western boundary of the subject site. However, the proposed upper levels of townhouses 2-6 are set back 7.3 m from the common boundary and the upper level of the proposal contains bedrooms, which normally have curtains and which are not ordinarily used during the day. Proposed unit 1 is a little closer to the common boundary, but still has a reasonable setback and is not directly opposite a balcony of No.67. It is understandable from the viewpoint of the objectors that with the approval of the proposed development, there will be a change in their amenity compared with the existing situation. One recognised way of mitigating impacts on privacy (although not necessarily totally eliminating those impacts) is by having an appropriate distance separating the buildings. The view expressed by the Court-appointed town planner was that there is a sufficient separation between the building at No.67 and the proposed building having regard to the zoning of the properties, is a view that is not unreasonable. The proposal provides for external slatted screens at the upper level to reduce overlooking. The screens should be angled so as to prevent overlooking downwards but at the same time to enable sunlight penetration (see condition 116). I do not agree with the Court-appointed expert’s opinion that the impacts in relation to privacy would be negligible, but I am of the opinion having regard to the zoning that the proposal should not be refused on grounds of privacy and amenity.

20 Along the north-western boundary, there will be a 1.8 m high fence to the proposed courtyards on the boundary and a landscaping border next to the fence. The landscaping should contain advanced species growing to a height of at least 3 m. The height of the landscaping will in time reduce the overlooking from the first floor of No. 67 into the private courtyards of the proposed units but will not completely prevent overlooking. The ground floor of the proposed units themselves is set back from the side boundary by about 8.6 m for units 2-6 and 7.3 m for unit 1. Again, I consider that the separation distance between the existing residential flat building and the proposed units is satisfactory.

21 The proposed units 1-6 will be overshadowed to varying degrees during part of the day by the building at No. 67 and by the internal dividing fences. The amount of sunlight received by the courtyards as originally proposed would not comply with the council’s DCP for a townhouse development. However, the Court-appointed expert was of the opinion that the degree of solar access would be equivalent to what is required for low-rise multi-unit housing that is permissible on the site. He also noted that there was compliance with AMCORD except in respect of units 6 and 7.

22 In my opinion, the amount of solar access for proposed courtyards will be acceptable even though the degree of sunlight does not comply with the DCP. Because the Court will require unit 7 to be deleted, the courtyard of unit 6 will now receive sunlight in midwinter. Moreover, since units 7, 8 and 9 at the rear will be deleted, the common open space (available for all residents on the site) will be much larger, and this open space will receive ample sunlight.

23 In the original design of the stormwater system, an open grassed detention area was proposed at the front of the site extending into the courtyard of unit 1. A condition of consent will exclude unit 1’s courtyard from the detention area.

24 Having regard to the number of units that will be approved, which is three less than the ten originally proposed, the proposed number of carparking spaces in the basement will be more than ordinarily required. Should be applicant wish to reduce the number of carparking spaces having regard to the number of approved units, a modification application may be made to the council. Following several design changes to the basement carpark including the gradients of the ramp, the carparking design would appear to be acceptable subject to compliance with the conditions of consent.

25 I come now to the major issue relating to the retention of the large lilly pilly tree located towards the rear of the subject land. In considering all the evidence relating to this issue, I have noted in particular that its retention played a prominent part in the evidence of resident objectors. Indeed, because some of the residents were dissatisfied about the conflicting evidence of Mr Hartley and Mr Sutton, several residents engaged another arborist, Mr K Hill to report and give evidence.

26 Some residents also submitted that another lilly pilly on the site should also be retained. This lilly pilly is in good condition and is 30 years old. Its removal would require an area of the proposed carpark to be left unexcavated and the loss or rearrangement of units in the vicinity of proposed units 5 and 6. Having regard to the fact that the applicant will be required to keep the large lilly pilly and to delete three units to achieve this, a requirement will not be made that the smaller lilly pilly should also be retained. New trees will be planted at the front of the proposed development.

27 The survey plan dated May 2002 indicates that the large lilly pilly has a diameter of 0.9 m, a span of 14 m and a height of 14 m. However, other evidence indicates that the span is at least 17 m. The tree is prominent as viewed from many of the units in the residential flat buildings at Nos. 61 and 67 adjoining the subject site. The tree is visible from the houses in the conservation area immediately to the rear of the site. From Ryde Road, the tree can also be seen in a view corridor between the two existing houses on the site as well as from other places in Ryde Road because of its height. Although Mr Sutton is not formally qualified as an arborist, he has horticultural qualifications and has had considerable experience with the council in tree preservation. I was impressed with the evidence he gave at the site, and where there is a difference of opinion between the experts, I have generally preferred his views to those of Mr Hartley. The Court-appointed expert Mr Vescio, who is a town planner, also expressed an opinion concerning the impact of the proposed development on the tree. Although I have taken Mr Vesico’s opinion into account, he is not a Court-appointed specialist in relation to trees, and it is the task of the Court to make its own independent assessment having regard to all the evidence. Prior to the appeal, the council's landscape adviser (who was not Mr Sutton) referred to an earlier email of 30 August 2004 (it is not clear what this email dealt with) and stated that he had now received an arborist report which specifically addressed the viability of retaining and protecting the lilly pilly. The landscape adviser recommended that the specifications provided in that report should be made conditions of consent. However, as Mr J Cole (solicitor for the council) submitted at the on-site hearing, some important recommendations from that report were simply not capable of being implemented by conditions.

28 The problem is that the large lilly pilly would be enclosed within a relatively small four-sided polygon formed by surrounding units, namely, unit 6 (to the southwest of the tree), unit 7 (to the northwest), units 8 and 9 (to the east) and unit 10 (to the southeast). As scaled from plan A30J along a straight line from the circumference of the trunk perpendicularly to the face of the wall of proposed unit 7, the distance is 3.5 m; between the trunk and unit 9, the distance is 3.6 m; from the trunk to the closest corner of unit 8, it is 4 m; and from the trunk to unit 6, the shortest distance is 5.2 m. The best separation is 7.6 m between the trunk and the closest corner of unit 10, although its courtyard wall is closer.

29 As I mentioned, the span of the tree is about 17 m and significant pruning would have to take place to confine the branches of the lilly pilly within the quadrangle (where those branches are below roof height) and to remove at least some branches passing over the roof in order to allow an appropriate clearance between the roof and the overhanging branches. It also appears undesirable from a safety point of view to have branches extending for more than a short distance over a roof.

30 I accept the following opinion expressed in Mr Sutton’s report (ex 3):

This large and mature tree is located in the rear garden of 63 Ryde Road, adjacent to the boundary of No. 65. The tree was very likely planted in the 1920s or 1930s as part of the original garden, making the tree seventy or eighty years old.

The tree is in good/excellent health with no evidence of dieback or adverse insect activity. The crown of the tree is full. There is no doubt the large undisturbed area around the base of the tree at 63 and 65 is a very significant factor in the health of this tree.

The condition of the tree is also displaying a typical shape for this species, i.e.; a broad spreading dome. There are little or no defects in the superstructure however there is a large inclusion in the trunk where it divides and there is a risk this could fail. The defect could however be overcome with appropriate tree surgery techniques. This species however generally rarely exhibits any structural problems of consequence anyway.

31 Mr Sutton observed five surface roots that he described in his report (he also included colour photographs of these roots):

• Root 1 was measured at 6.7 m from the trunk with a diameter of 50 mm.
• Root 2 was measured at 7.2 m from the trunk with a diameter of 50 mm.
• Root 3 was measured at 5.3 m from the trunk with a diameter of 55 mm.
• Root 4 was measured at 11.3 m from the trunk with a diameter of 40 mm.

• Another root was measured at 10.1 m from the trunk with a diameter of 35 mm.

32 Mr Sutton expressed the following conclusion in respect of the proposed development of ten townhouses:

With excavation on three sides of the tree and partly on a fourth for footings and slab the roots which are mostly contained within the top part of the soil profile would be severely damaged leading to dieback of the tree, lack of drought tolerance and short and long term decline. Additional adverse impacts will likely result from pathway access to four units and landscaping garden beds, planting proposed and possible level changes.

Although a contrary opinion was expressed by Mr Hartley, the views expressed by Mr Sutton about the decline of the tree appear to be the more likely outcome.

33 In my opinion it is not a sufficiently satisfactory answer to say that the roots could still perform their functions adequately underneath the proposed townhouses. That might be acceptable in respect of part of the root system under perhaps one of the units. However, what is proposed here is to have units close to the trunk on three sides as mentioned above. In Mr Sutton’s experience, he has found that earth under a building is usually dry.

34 Many of the resident-objectors considered that ten townhouses would be an overdevelopment of the site. The view of the residents conforms with the expert evidence that I have accepted that the units surrounding the lilly pilly are likely to have a serious impact on the life of the tree and lead to its decline.

35 Because of the likely impact of the development on the tree as presently proposed, I am of the opinion that the development should be refused or, alternatively, units 7, 8 and 9 be deleted. It is open to the Court to grant a development consent for part of a proposed development. The result of the deletion of these units will mean that a large percentage of the roots will be left undisturbed in their natural state, uncovered by buildings. There will be no restriction on roots travelling towards the north-western side boundary or towards the rear boundary. The courtyard at unit 10 is shown as having a solid wall on its north-western side. This wall should be replaced with a light-weight structure such as a brushwood fence, so that any roots travelling towards the south-eastern side will generally be unimpeded. Likewise, there should be a light weight courtyard fence provided for unit 6 in the place where the solid sidewall of unit 7 was previously proposed. Another result of the opening up of the area around the lilly pilly will be better views towards it from many units on each side of the subject site and from dwelling houses towards the rear. The amenity of the dwellings to the rear will be improved by the deletion of the two double-storey units 8 and 9 having a combined length of walling of about 24 m.

36 I accept that the fault occurring in the tree from the inclusion referred to by Mr Sutton may be overcome and the tree rendered structurally stable by bracing. I am not inclined to accept the opinion Mr Hill that no development at all should occur under or near the tree and that the tree should be left in its natural condition without any bracing. I think that Mr Hill agreed that without such bracing the tree could eventually fail.

37 Of course, if the proposed development does not go ahead, the owners of the two lots that form the subject site could not be compelled to carry out remedial work to make the tree structurally sound. However, having regard to the importance of the tree, I am not convinced that the council itself would agree to its removal merely because the owners did not undertake the necessary bracing work. As a condition of approval of the proposed development, the bracing of the tree must take place before the demolition of the buildings on the site and before any other site works occur.

38 In the light of my findings, some of the draft conditions will no longer be appropriate and I have framed altered or new conditions. Some conditions of the draft have already been complied with in the amended plans (e.g. specified setbacks). Without intending to deal with all the alterations (which are generally self-explanatory) I make the following comments.

39 Condition 4 will be deleted. It provided that the concept should lapse if the development was not substantially commenced within two years after the date of consent. A sufficient case was not made out in the present appeal to alter the ordinary statutory period for the commencement of a development. However, condition 1 will be retained, because it is desirable for a site next to a conservation area and exposed to passing traffic on Ryde Road not to be left in an uncompleted state for a lengthy period of time. The condition will be altered to provide that the whole development shall be completed within three years of the commencement on the site of demolition or construction work approved by this consent.

40 A has a matter of general principle, the Court will generally not impose a bond for the protection of landscaping and trees on private property. This is because there are adequate enforcement procedures, such as prosecution proceedings or civil action in Class 4 of the Court's jurisdiction. The deletion of condition 130 does not make the need to comply with the conditions of consent any less important or reduce the liability of an applicant to criminal proceedings for any breach of the tree preservation order.

41 Because of the various amendments in the course of the hearing to the architectural plans, an amended landscape plan will be required, taking into account the approved architectural plans and the various conditions relating to landscaping.

42 An amended stormwater plan will be required having regard to the deleted units and bearing in mind the “tree-preservation area” referred to in the conditions.

43 For the above reasons, the orders of the Court are:

1. The appeal is upheld.

2. Development consent is granted for the demolition of the existing buildings at 63-65 Ryde Road, Hunters Hill, and for the erection thereon of seven townhouses (units 1-6 and 10) subject to the conditions in Annexure A hereto. {The conditions are not published in this internet version. They may be inspected at the council.}

3. The exhibits other than the exhibits D, F, G, O, M, Q, S and 3 may be returned.
__________
A J Nott
Commissioner of the Court
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