Australand Holdings Pty Ltd v Sydney City Council

[2003] NSWLEC 314

>

Land and Environment Court

of New South Wales

CITATION:	Australand Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 314
PARTIES:	APPLICANT Australand Holdings Pty Ltd RESPONDENT Sydney City Council
FILE NUMBER(S):	10411 of 2003
CORAM:	Roseth SC - Tuor C.
KEY ISSUES:	Development Application :- residential flat building Impact on nearby heritage buildings Impact on neighbouring properties Non-compliance with numerical controls in DCP
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1997
CASES CITED:
DATES OF HEARING:	13/08/03-15/08/03 and 18/08/03
DATE OF JUDGMENT:	08/27/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr T Hale instructed by Minter Ellison RESPONDENT Mr D Officer instructed by Maddocks Lawyers

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10411 of 2003

Roseth SC and
Tuor C

27 August 2003

Australand Holdings Pty Ltd

Applicant
v

Sydney City Council

Respondent

Judgment

The appeal

1. This is an appeal against the deemed refusal by Sydney City Council (the council) of a development application to demolish the existing building and erect a ten-storey commercial-residential building on lots 2 and 3 DP 503055, known as 46A Macleay Street; Potts Point.

The site

2. The site has three street frontages: to Macleay Street, Greenknowe Avenue and Crick Avenue and an area of 1,138m2. The existing building on it was built in the 1960s for a telephone exchange and post office. The buildings around the site are a mixture of residential, hotel, serviced apartments, commercial and retail. There are several heritage items in the vicinity, of which the closest three are early 20th century apartment blocks: Kingsclere, Tara and Byron Hall, all of them about 30m in height. Kingsclere is directly to the south of the site at the southern corner of Macleay Street and Greenknowe Avenue. Tara is also on the southern side of Greenknowe Avenue but removed from the corner. Byron Hall is diagonally opposite the site on the western side of Macleay Street.

3. To the south of Kingsclere is the Rex hotel apartment building with a height similar to that of Kingsclere. Beyond this building is a park called Fitzroy Gardens containing the El Alemein Fountain.

4. The development on the eastern side of Macleay Street to the north includes a heritage item Manar at 42 Macleay Street. Between Manar and the site is the De Vere Hotel, a 20m high building. To the north of Manar is a nine-storey serviced apartment building with a height of 28m. Beyond that are two more buildings with heights exceeding 30m. The buildings further to the north have varying heights, mostly between 20m and 30m.

5. On the western side of Macleay Street building heights are more varied. The monumental 16-storey apartment block, Rockwall Apartments, is 70m high. There are also many lower buildings of two to five storeys.

6. To the east the site adjoins No 2 Greenknowe Avenue, a four-storey apartment building. On the northern side of Crick Avenue, to the east of the De Vere Hotel, is a four-storey apartment building.

Relevant planning instrument

7. The two relevant planning instruments are the South Sydney Local Environmental Plan 1998 (the LEP), which zones the site Zone No 10 – Mixed Uses Zone, and places it within the Elizabeth Bay Heritage Conservation Area, and Development Control Plan 1997 (the DCP).

8. The Strategy for a Sustainable City of South Sydney was adopted in 1994. The Strategy states a preference for tall buildings to be on ridges. The subject site is on a ridge.

The proposal and its history

9. The applicant proposes to demolish the existing building on the site and to construct a mixed-use building that rises to ten storeys at the Macleay Street end. The eastern part of the building is six storeys and its roof is be used as a recreation area. The building is built to the site boundaries. The Floor Space Ratio (FSR) is 6.1:1 if it includes the area of parking in excess of council’s requirements (as required by the definition of FSR). It is 5.4:1 without this area. The height to the uppermost ceiling is 30.93m, and the maximum height of the building is about 35m.

10. The applicant lodged the application with South Sydney City Council in October 2002. Following notification, that council received 80 letters of objections. The officers of the South Sydney City Council reported to the Planning and Development Committee recommending that the proposal be approved, subject to a deferred commencement condition requiring the applicant to pay the council a contribution of about $2.7 million (see below). On 9 April 2003 the South Sydney City Council considered the recommendation without accepting it. Instead it deferred the determination of the application “pending a revised design that complies in full with the prescription of DCP 1997. Further, that a more detailed Heritage Impact Statement be provided which addresses the impact on all buildings affected in the surrounding Heritage Conservation area.”

11. The Potts Point area was transferred to the City of Sydney on 8 May 2003, and with it this application. The Sydney City Council has not determined the application. The applicant lodged the appeal against the deemed refusal in June 2003.

12. The 15 issues in the council’s Statement of Issues were discussed during the hearing. The following emerged as the salient issues:

• Are the proposal’s height, bulk and scale acceptable in the urban context?
• Is the proposal’s impact on the heritage significance of nearby heritage items acceptable?
• Is the impact on the solar access to and views from adjacent buildings acceptable?
• Does the proposal provide too much parking?
• Does the proposal comply with the DCP?
• Is the upholding of numerical standards in the public interest?

The nature of the DCP

13. In order to deal with the issues it is necessary to understand the nature of the DCP. The DCP’s numerical control for FSR for this site is 3:1. The numerical control for height is 18m. Because this proposal does not comply with the above numerical (or prescriptive) controls, much turns on the weight given to numerical controls in the assessment of the application.

14. The applicant’s advocate, Mr T Hale SC, submitted that the DCP was unlike other planning documents in that its numerical standards were of secondary importance to objectives and performance standards. In support of this submission, he took us to p3 of the DCP where it says:

This Urban Design Plan is an integrated resource document based on a set of design elements. It adopts a performance-based system of control that focuses on matters to be addressed called performance criteria, to achieve desired outcomes. This approach allows flexibility and innovation by not restricting design solution to a particular prescriptive standards (except for health and safety reasons).

The emphasis of the Plan is on the assessment of applications on merit to achieve the best possible balance between the diverse and sometimes conflicting issues that affect development sites.

The controls complement the performance criteria and are examples of ways to achieve the performance criteria. They are not an alternative prescriptive form of regulation nor do they preclude other ways.

15. The council’s advocate, Mr D Officer QC, submitted that the DCP requires applications to be assessed in the light of objectives, performance criteria as well as numerical controls.

16. To resolve this issue, we turn to the relevant parts of the DCP. Under Urban Design Principles the DCP says that development should be "sympathetic to the prevailing height, bulk, scale design and external appearance of adjacent building" (p 14). On p 72 the DCP deals with FSR and height.

Floor Space and height controls in this DCP are intended to allow development that will enhance the character and built form of the City, particularly in well-established areas. These controls have been set to generally reflect:
• the intensity of land use with respect o proximity to transport and infrastructure;
• site specific constraints such as urban conservation areas and areas of high environmental amenity; and
• the desired scale and form of development in relation to the structure of the City overall.

The FSR and Height Maps identify the potential maximum limits of development. However, maximum limits may not be achievable in all instances. Environmental conditions set out in performance criteria will determine these.

Where a site is seen as capable of taking an FSR or height above the limit, and still satisfy environmental and amenity considerations, the onus is on the applicant to demonstrate to Council, by way of a detailed assessment of the urban context, that the site is capable of taking such increase.

17. The DCP states that the objective of FSR control is to ensure new development "respects and reflects the overall built form and does not detrimentally affect the amenity of the area".

18. Under Performance Criteria for FSR the DCP states that

The maximum FSR a site can achieve is determined by the environmental constraints of the site, in particular:
• overshadowing and privacy
• streetscape
• parking and landscape requirements
• visual impact and views
• capacity of the community infrastructure and the road network to support the development.

19. With regard to controls for FSR, the DCP states that the FSR may be increased by a bonus of 0.25:1 if the development provides one or more of a number of features considered to be beneficial to the public. The DCP then adds:

However, in instances where it can be justified on environmental and amenity grounds and council considers it suitable to exceed the maximum FSR provisions contained in Section 3.2 Elements of the Urban Framework: Built form, that any floor space proposed above the maximum identified on the FSR map will be calculated as bonus floor space in all cases, and will require public domain improvements above those generated by the floor space bonus indicated on the FSR map.

20. The FSR Control Map shows the FSR along both sides of Macleay Street, with the exception of the section between Manning Street and Rockwall Crescent, as 3:1.

21. With regard to height and scale control, the DCP identifies three objectives, namely to ensure that buildings:

• are appropriate in scale, compatible and complementary with areas of townscape significance, the site and its context;
• do not dominate and overshadow the public domain;
• achieve high environmental amenity.

22. The DCP gives the following performance criteria for the height control:

• adopts the predominant height and scale of adjoining buildings and has a similar bulk and mass to the neighbours takes into consideration the topography and shape of the site, and taller buildings are located on the high parts of the site.
• together with the bulk is distributed on the site so as to ensure there is no significant loss of amenity to adjacent buildings and public streets and spaces.
• maximises solar access in the public domain and areas of private open space.

Building height for infill development maintains appropriate proportions in relation to street width.

To reinforce street corners, corner buildings may be higher than adjoining buildings only where additional height will not be detrimental to the streetscape.

23. Under the heading Height Controls, the DCP states that the building height should be no greater than the height specified in the Height Control Map not including an attic. The remaining paragraphs of this section deal with ‘infill’ sites and are not relevant to this proposal.

24. The Height Control Map shows the height for this site, the two sites along Macleay Street to the north and the sites towards the east along Greenknowe Avenue as 18m. The remaining sites along the eastern side of Macleay Street have a height limit of 24m. Most of the sites along the western side of Macleay Street have a height limit of 12m. The exceptions are the site between Manning Street and Rockwall Crescent (70m) and to the south of Hughes Street (21m).

25. A further piece of information relevant to the interpretation of the DCP is that the height limit along Macleay Street before 1998, under the previous planning instrument Local Environmental Plan 101, was 24m on both sides of the street. The height reduction to 18m on this site and sites to the north and the reduction to 12m on most of the western side of Macleay Street occurred in 1997 when the DCP was introduced.

26. A full reading of the DCP suggests to us that the numerical controls of the FSR Control Map and the Height Control Map should be given equal weight to the objectives and performance criteria. It would have been open to the authors of the DCP to dispense with numerical controls and rely entirely on objectives and performance criteria. They did not opt for the purely qualitative approach. Moreover, in 1997 the authors of the DCP reduced the height limit then applying to the subject site from 24 to 18m. While we do not know what the reason was for the change, we assume that there was a reason and the authors considered it important that a building on this site should be lower than on other sites along the eastern side of Macleay Street.

27. We accept that the DCP advocates flexibility and allows the consent authority to vary the numerical controls. However, the DCP states that numerical controls should be varied only where environmental and amenity constraints are satisfied. It is unavoidable that the impact of a numerically complying proposal will be used as the benchmark for assessing the impact of a proposal that exceeds the numerical controls.

28. When the planning staff of South Sydney City Council assessed the proposal, one of the council’s planners, Mr N Horiotopolus, wrote a two page handwritten assessment, of which the two last paragraphs read as follows:

From a streetscape point of view the design will complement the character of Macleay Street. The architecture proposed is classical in form with well-proportioned fenestration patterns and rhythm consistent with the bold masonry facades of the Edward Apartments on Macleay Street.

The design works well in context, however the issue of exceedence of the floor space needs to be considered on statutory planning level. From an urban design point of view the development will still be appropriate if the height of the building was reduced by 1 or 2 levels. Otherwise the proposal from an urban design point of view is considered acceptable.

29. It appears from the above that Mr Horiotopolus, who was not a witness in the proceedings, considered the proposal acceptable in the urban context, though he felt some unease about the fact that it exceeded the numerical FSR controls of the DCP.

30. The Court heard the evidence of two architects and experts on urban design, Mr D Chesterman for the applicant, and Professor P Droege for the council. The essence of their disagreement may be summarised thus: Mr Chesterman advocated a uniform building height of 30m on both sides of Macleay Street, while Professor Droege thought that a lower building height on this and adjoining sites, as well as on the western side of the street, was preferable.

31. In Mr Chesterman’s opinion, the site requires a 30m high building. A lower building would result in the buildings lining Macleay Street not having a uniform height. A ‘higgledy-piggledy’ (our word, not Mr Chesterman’s) building height would produce a less desirable urban environment than a uniform line. Mr Chesterman thought that the DCP should be amended so that the height limit along both sides of Macleay Street becomes 30m. In Professor Droege’s view, a lower building height around Crick and Greenknowe Avenues would allow more light to enter Macleay Street, would give more dominance to existing buildings and was more consistent with the character of the street.

32. The opinions of Mr Chesterman and Professor Droege represent two different approaches to urban design. One prefers uniformity, the other variation. The DCP clearly shows a preference for a variation of building height along Macleay Street. The DCP changed the previous uniform height control in LEP 101 to five different controls, namely 12m, 18m, 21m, 24m and 70m. It would be wrong for us to base our opinion, as Mr Chesterman did, on the assumption that the DCP is wrong.

33. We accept Professor Droege’s evidence that the 30m height of the proposal is inconsistent with the DCP and inappropriate in the streetscape and urban context.

34. Clause 24 of the LEP requires the consent authority to consider an assessment of the impact the proposed development will have on the heritage significance of heritage items in the vicinity. When the planning staff of South Sydney City Council assessed the proposal, the council’s heritage architect, Ms Chery Kemp, wrote the following comment:

The proposed new building, while it exceeds the FSR and height controls, appears to have been carefully designed with regard to its context. The manner in which the building steps down to six storeys at the rear (east) respects the four-storey scale of the adjacent building to the east on Greenknowe Avenue. The ten-storey scale to Macleay Street is in keeping with buildings to the south (Kingsclere and Tara on Greenknowe Avenue). The design of the building is also considered to respect the conservation area context, as it has vertical window proportions, variation to the facades, and achieves a solid appearance.

35. It is clear from the above that Ms Kemp, who was not a witness in the proceedings, thought that the height and scale of the proposal did not have an adverse impact on nearby heritage items.

36. The Court heard the evidence of two architect-heritage experts, Mr R Staas for the applicant, and Professor J Weirick for the council. Professor Weirick and Mr Staas agreed that the two important items on which the proposal is most likely to impact were Kingsclere and Byron Hall, referred to as the grand apartment buildings. A further matter to be considered was the heritage significance of the Elizabeth Bay Heritage Conservation Area.

37. Reduced to its simplest (perhaps simplistic) terms, the issue of heritage impact comes down to this question: does the proposed building, which has a similar height to Kingsclere and Bryon Hall and a slightly larger footprint, reduce the significance of these two heritage items? Professor Weirick said that a building of similar height and bulk on the subject site would diminish the significance of the grand apartment buildings, because it would compete with them and obscure views of them from public places. Mr Staas took issue, saying that “the proposed building will reinforce the grouping of higher apartment buildings and their prominence on the high point in Macleay Street in an appropriate manner that complements the historic significance of the area”.

38. It seems to us that the real issue is how people strolling or driving in Macleay Street would perceive the proposal’s impact. We do not accept Mr Staas’ opinion that another 30m-high building in the vicinity will reinforce the dominance of the existing heritage items. The proposed building will obscure more public and private views of Kingsclere and Byron Hall than would a lower building. It will also cast more shadow on Kingsclere. It will take away attention from Kingsclere and Byron Hall. In our opinion, this amounts to an adverse impact on their heritage significance.

Impact on solar access

39. The proposal overshadows the lower four levels of Kingsclere, which lies to its south. Mr T Moore, a council planner who gave evidence. summarised the impact in a table that became Exhibit 11. Level 1 is not in residential use, so the shadow impact is not of significance. Level 2 now receives 5 hours of sunlight at mid-winter; after the development it would receive 1.5 to 2.5 hours. Level 3 now receives 6 hours of sunlight; after the development it would receive 2.5 to 3 hours. Level 4 now receives 6 hours of sunlight; after development it would receive 4 to 5.5 hours. The loss of sunlight on levels 2 and 3 would be between 50 and 70%. Only one apartment on the eastern side of Level 2 would receive less than 2 hours of sunlight.

40. Mr G Zylber, a consultant planner who gave evidence in the applicant’s case, agreed broadly with Mr Moore’s assessment, though he did not agree that any apartment would receive less than two hours. However, Mr Zylber considered a window to be in sunlight if only a sliver of sunlight enters it. We do not accept that this is the correct way to measure solar access. We consider Mr Moore’s assessment to be correct.

41. Mr S Lee, who lives in a third floor apartment in Kingsclere, told the Court that his main concern was the loss of sunlight. Exhibit 11 showed that Mr Lee’s living area now receives sunlight for 6 hours at mid-winter. Following development it would receive 2.5 hours of sunlight (from 9.00 to 11.00 and from 2.30 to 3.00), a loss of 60%.

42. The DCP deals with the issue of solar access under Energy efficient site layout and building design. It lists four objectives, of which the third is relevant, namely

to ensure a reasonable level of solar and daylight access to the principal living areas and private open space if dwellings.

43. The performance criteria for solar and daylight access are:

New buildings and alterations and additions do not overshadow:
public parks and civic spaces; and
maintain a reasonable level of solar access to principal living areas of adjacent buildings.

44. Under controls for solar and daylight access two paragraphs of the DCP are relevant:

Solar access reaching principal living area windows and to a minimum of 50% of the private open space is maintained for at least two hours, between 9am and 3pm at the winter solstice (21 June).

New development does not create any additional overshadowing where solar access is less than two hours between 9am and 3pm at the winter solstice. This control does not apply to windows on a side boundary or only separated from a side boundary by a passageway.

45. As Mr Zylber thought (in our opinion erroneously) that all apartments would retain 2 hours of sunlight, he considered the overshadowing impact to be acceptable and consistent with the DCP. Mr Moore took issue, partly on the basis that he found one apartment that received less than two hours of sunlight, and partly because he did not think that a significant reduction in sunlight was either acceptable or sanctioned by the DCP, even if the remaining sunlight was more than two hours.

46. In our opinion, the solar access controls of the DCP must be interpreted in the context of its controls on bulk, scale and height. Where a proposal is within these controls, it should not reduce the sunlight received by a neighbouring building to below two hours. Nothing in the DCP suggests that, where a proposal exceeds the numerical controls, it is acceptable to take away all the existing sunlight above two hours.

47. In our opinion Mr Lee’s objection to the loss of sunlight is justified. We accept Mr Moore’s evidence that the overshadowing impact of the proposal on Kingsclere is unacceptable.

Impact on views

48. It is common ground that the proposal would have an impact on views from the upper levels of Byron Hall and Kingsclere. The impact is almost entirely due to the component that is above 18m.

49. Mrs I Kenny, who lives on the 10th floor of Byron Hall said that her main concern was the loss of views, though she was also concerned about too many cars associated with the proposal. Mr M Buggy, who also lives in Byron Hall objected to the loss of views, sunlight and ventilation, overlooking, increased traffic and the loss of his building’s prominence. Ms L Rawnsley, who lives on the 5th floor of Kingsclere, said that her concern was that the proposal would ”intimidate” her building. Mr K McConnell, who lives on the 8th floor of Kingsclere, said that his main concern was the loss of views and aspect. Mr D Crompton. who lives on the 7th floor of Kingsclere, had similar concerns. Finally, Mr T Lanny, who lives in the penthouse of 2 Greenknowe Avenue, said that he was afraid that the amenity of his outdoor area would diminish.

50. Mr Moore’s evidence included photographs of existing views from Levels 8 and 10 in Byron Hall, and Level 8 in Kingsclere. Superimposed on the photographs was the amount of view that would be lost as a result of the proposal. In Mr Moore’s opinion, the view loss is significant and unacceptable. In his written report Mr Zylber had described the view loss from Kingsclere and Byron Hall as moderate. In cross-examination he agreed that a resident of these buildings is likely to be devastated by the loss of views. Despite this he considered that, on balance, the view impact was justified.

51. Mr Moore’s photomontages convince us that the loss of views is significant. For some apartments, what is now a stunning harbour view would become a harbour glimpse after development. While we are aware that there is no legal right to views, we think that this amount of view loss is unacceptable. We note that one of the benefits of the 31m height of the proposed building would be the expansive harbour views its own apartments would enjoy. We do not think that the gaining of views at the expense of the building behind is consistent with sound planning principles, the notion of view sharing, or indeed with principles of fairness.

Carparking

52. The proposal provides more carparking than required by the Council. According to Mr Moore, this is a negative feature, since it encourages higher car ownership and more vehicular trips. Mr R West, a traffic engineer who gave evidence in the applicant’s case, said that the number of trips generated was not related to the number of parking spaces.

53. We note that Mr Moore considered this a minor issue. In view of the other more serious issues, it is not necessary for us to reach a finding on carparking.

Compliance with the DCP

54. It is common ground that the proposal does not comply with the numerical controls for FSR and height of the DCP. In the applicant’s submission, the proposal nevertheless complies with the DCP as a whole, because it meets its objectives and performance criteria. In the council’s submission, the proposal meets neither the objectives, nor the performance criteria, nor the numerical standards of the DCP.

55. We prefer the council’s submission for the following reasons.

• The proposal does not meet the objective of the FSR control, in that it does not respect and reflect the overall built form. It impacts adversely on the amenity of the area.
• The proposal does not meet the relevant objective of height control, in that it is not appropriate in scale, compatible and complementary with areas of townscape significance, the site and its context.
• The proposal does not meet the performance criteria for FSR, in that it does not satisfy environmental constraints related to overshadowing, visual impact and views.
• The proposal does not meet the performance criteria for height, in that it is not of similar bulk to its neighbours to its east, north and west, and causes significant loss of amenity to adjacent buildings.

56. In our opinion, the proposal does not comply with the DCP.

The public interest

57. According to Mr Moore, there is a public interest element in upholding the numerical controls of the DCP, particularly the height controls. This is because a person who purchased an apartment in a nearby building since 1997 may have made an enquiry of the council about the height to which the subject site could be developed.

58. In Mr Zylber’s view, the public interest does not require the strict application of numerical controls. As the DCP is based on objectives and performance criteria as well as numerical controls, a prospective purchaser making an enquiry would be told that the maximum height shown on the Height Control Map might be varied.

59. We prefer Mr Moore’s approach to the DCP. Where a planning instrument includes a maximum FSR and building height, it is unavoidable that members of the public will assume that the FSR and height controls will be upheld. Those few who read the full 89 pages of the DCP would understand that the controls may be exceeded, but only if the exceedence does not lead to adverse environmental impact.

60. We agree with Mr Moore that the approval of this application would not serve the public benefit.

Consistency of decisions

61. Mr Hale submitted that consistency of decision-making by a public body was important. We accept that this is so. However, we do not think that the applicant has demonstrated a consistent approach to the height of buildings in Macleay Street.

62. We note that there have been no recent applications for sites with an 18m height limit. There has been only one approval under the DCP. This was at 14 Macleay Street, where a 30m high building was given consent. We note that the FSR was 4.2:1. There were two approvals around 1997, but under LEP 101. One was at 18-18A Macleay Street, where a 27.5m high building was given consent. This was infill development and the adjoining buildings were of similar height. We note that the FSR was 3.82:1. The second approval was for the Dorchester at 36-38 Macleay Street, which is a 32m high building. We note that the FSR was 3:1.

63. We have also taken into consideration that the planning staff of South Sydney City Council appeared to like the proposal and recommended its approval. We note that the assessment of view loss from Byron Hall and Kingsclere did not include a visit to the affected apartments and taking photographs of existing views. Moreover, the council appears to have had doubts about the recommendation, since it resolved to request a revised design that complied in full with the prescription of the DCP. The usual meaning of "prescription", when applied to a planning instrument, is numerical standards.

Payment for floor space bonus

64. The draft conditions submitted by the council include a condition requiring the applicant to pay $2,715,790 as a floor space bonus contribution. The amount is additional to contributions under s94 of the Environmental Planning and Assessment Act 1979. While the draft condition was submitted by the Sydney City Council, it is based on South Sydney City Council’s Policy - Developing Public Domain Improvements.

65. In response to a question by the Court, Mr Hale submitted that the condition was not lawful, since the only basis for contributions is s 94. Though instructed to press the condition, Mr Officer did not make a contrary submission. If the proposal were otherwise worthy of approval, we would not impose the condition.

66. In our opinion, the proposed building has

• excessive height and bulk in the streetscape and urban context,
• unacceptable impact on two nearby heritage items, Kingsclere and Byron Hall,
• unacceptable impact on the views from the upper levels of Kingsclere and Byron Hall, and
• unacceptable impact on solar access to Levels 2 and 3 of Kingsclere.

67. The application is therefore refused.

1. The appeal is dismissed.
2. Development application to demolish the existing building and erect a ten-storey commercial-residential building on lots 2 and 3 DP 503055, known as 46A Macleay Street; Potts Point is determined by refusal.
3. The exhibits are returned.

____________________ _____________________

Dr J Roseth Annelise Tuor

Senior Commissioner Commissioner