Australis Construction Company v Leichhardt Municipal Council - [2006] NSWLEC 38

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Australis Construction Company v Leichhardt Municipal Council [2006] NSWLEC 38

PARTIES:
APPLICANT
Australis Construction Company

RESPONDENT
Leichhardt Municipal Council

CASE NUMBER: 11268 of 2004

CATCH WORDS: Development Application

LEGISLATION CITED:
Leichhardt Local Environmental Plan 2000
Leichhardt Development Control Plan 2000
State Environmental Planning Policy No. 1

CORAM: Hoffman C

DATES OF HEARING: 23/11/2005

DECISION DATE: 03/02/2006

LEGAL REPRESENTATIVES

APPLICANT
Mr P Clay, barrister
Instructed by: Mr P Moloney, solicitor
Of: Moloney Lawyers
RESPONDENT
Mr G Green, solicitor
With: Ms E Rankin, solicitor
Of: Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hoffman C
3 February 2006
11268 of 2004 Australis Construction Company v
Leichhardt Municipal Council

JUDGMENT

This is a class one appeal No. 11268 of 2004 between Australis Construction Company and Leichhardt Municipal Council in regard to the refusal of the proposal to demolish an existing single storey weatherboard cottage and erect two semi-detached dwellings that are two storeys high at No. 58 Cecily Street, Lilyfield.

The existing house is across two narrow lots being Lots 5 and 6 DP 1474. Each lot is rectangular having frontage of about 4.9 m and a depth of 32.5 m.

There is a rear lane called Foucart Lane and it is proposed to have a single car garage on each lot with a garden courtyard between each garage and its residence.

The land slopes down about 3 m from Cecily Street to the lane. The ground floor living rooms face north-east into the garden court of each townhouse. The floor level of the living room is set about two steps above the courtyard and as a result the dwellings are excavated between 1 to 1.5 m at the street front.

There is a cross fall also on the allotments from No. 56 and 56A Cecily Street on the northern side down to No. 60 Cecily Street on the southern side of the proposal.

Numbers 56 and 56A are on the corner of Cecily Street and Brockley Street. It is a relatively recent semi-detached development approved in about 1995 under a former statute and control plan to the current ones.
Number 60 is an older single storey weatherboard cottage with a more recent large two storey studio and garage building facing the rear lane. The studio has a verandah facing the yard between it and the house.

There is a development application for No. 60 under appeal at the present time to do major alterations and additions to the cottage involving the creation of a lower level living and kitchen area with direct access to the backyard. The current ground level becomes just bedrooms and bathrooms. The roof is to be raised to a steeper pitch to enable a room in the roof style master bedroom and en-suite. The exterior of No. 60 will change little as seen from Cecily Street except for the roof having a steeper pitch and being a little higher. The studio/garage at the rear is to remain.

The respondent said the current plans for No. 60 are amended from the original application and now retain the cottage appearance in the streetscape.

The subject proposal at No. 58 Cecily Street has a contemporary design that is said by the applicant to take its design cues from the cottage style of the older houses and the adjacent semi-detached development in the neighbourhood. Number 56 and 56A is also a contemporary design said by the applicant to have similar design cues.
Opposite the site is a child-day care centre housed in a flat roof 1960 style commercial looking building. It has a large play area fronting Cecily Street with trees.

Uphill from the site on Cecily Street, most of the other properties are detached single storey older cottages with some two storey or room in the roof style. That uphill part of Cecily Street is quite narrow having only about half width carriageway compared to the other section of Cecily Street downhill of the subject site and beyond the next intersection which is O’Neill Street.

There is a neighbourhood general store on the intersection with O’Neill Street and beyond that to the south Cecily Street goes uphill again where there are newer town houses on the low side of the street and older detached and attached houses on the high side of the street.

That southern part of the locality is the Nanny Goat Hill Conservation Area. Its boundary is on the opposite side of Cecily Street at the subject site and then runs down hill on O’Neill Street and includes the houses in the southern section of Cecily Street. The subject site is therefore outside the conservation area which is generally to the south west of the subject property.

There is a heritage item being an old broom factory in Foucart Lane on the corner with O’Neill Street. The experts agreed the proposal had no impact on its significance.
Amended plans of the proposal had been prepared. The main change is the lowering of the original design by about 900 mm.

The amended Statement of Issues in Exhibit 6 ran to 9 pages in length. I include it below for completeness.

The parties agreed the key issues were:
1.Streetscape;
2.The fit of the proposal within the character of the locality;
3.Architectural expression of the design and
4.The exceedance of the statutory floor space ratio.
The Issues were:
FSR
1.The proposal significantly exceeds the FSR standard under Clause 19(2) of Leichhardt LEP 2000 and the SEPP 1 objection does not demonstrate, in the circumstances of the case, that strict compliance would be unreasonable or unnecessary.
Particulars
(a)Clause 19(2) - Floor Space provides "Except where the development is carried out in accordance with clause 23(1), consent must not be granted to the carrying out of residential development on land within a density area if it will result in the floor space ratio exceeding the ratio shown for the density area" as follows: - 0.5:1.
(b)The proposal would result in floor space ratio (FSR) of 0.6:1 (applicant’s calculation). This exceeds the 0.5:1 development standard by. 20%.
(c)The objectives of the FSR standard are set out in Clause 17(a) of LEP 2000 viz "To provide development standards to ensure that the density and landscaped areas of new housing reflect are complementary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and take into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve the desired future character'. Generally, an FSR control (in a residential environment} is concerned with the control of bulk and scale, and amenity impacts associated with the scale of development.
(d)The proposal substantially fails to respect the built form requirements of Part B1.2 of DCP 2000 and will be inconsistent with the existing and desired future character of the Nanny Goat Hill Distinctive Neighbourhood. It does not, therefore, meet the fundamental requirement: 'take into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve the desired future character'.
(e)The applicant has not demonstrated why, in the circumstances of the case, the proposal should not comply with the standard, nor that a better planning outcome would be achieved by non compliance (having regard to the draft Amendment 1 to SEPP 1). In this case, the proposal presents a built form directly contrary to the desired future character established under the DCP, using a significant non compliance with the FSR standard to achieve this.
(f)While the SEPP 1 relies on the fact that there are other buildings exceeding the FSR standard in the vicinity, these include buildings approved prior to the introduction of the standard, in LEP 2000.
(g)There is no reason as to why a building of single storey scale or low two storey/room in the roof style development presenting to Cecily Street could not be provided on this site, consistent with the FSR development standard (LEP) and building envelope control (DCP), and the desired future character of this locality.
Out of Character
2.The built form and character of the proposed dwellings is 'inconsistent with the existing and desired future character of the Nanny Goat Hill Distinctive Neighbourhood and Eastern Residential Sector and will contribute to the erosion of the character through cumulative impact in a manner specifically contrary to the intent of the DCP.
Particulars
(a) The Nanny Goat Hill Precinct is described as follows in Leichhardt DCP 2000:
'The dominant built form in Nanny Goat Hill is single storey detached cottages on similar sized allotments. There is a variety of architectural styles evident, reflecting the various stages of settlement including Victorian, Federation, inter- war and post war dwelling forms. Most of the subdivision and development in the Neighbourhood appears to have occurred in the late nineteenth and early twentieth century. Despite this predominant single storey character, two storey developments are evident and are the result of landowners competing for views on elevated streets and upper slopes. The cumulative impact of this competition for views would be a total change in the built form character of the area. This issue is not supported by Council and is addressed by General, Neighbourhood and Additional Controls.' (emphasis added).
(b)Notwithstanding the reduction in height in the amended plans, the proposal remains directly contrary to the built form promoted as desirable by the DCP because it is of a full two storey height, of distinctive two storey form, non compliant with the building envelope control, and it does not respect the dominant cottage character sought for this locality. Approval of this development would add to the cumulative impact of unsympathetic developments, leading to the change in character of the locality that the DCP specifically seeks to avoid. The excavation of development below the existing ground levels does not result in this two storey development taking on the desired single storey cottage form.
Building Envelope Control
3. The proposal does not comply with the building envelope control of Part B1.2 of DCP 2000 and nor does it respect the underlying intent of this control.
Particulars
(a)DCP 2000, Part B1.2 provides for a 3.6 metre building envelope in the Nanny Goat Hill Distinctive Neighbourhood.
(b)Part B1.2 of DCP 2000 describes this envelope as appropriate to 'single storey, or low 2 storey dwelling utilising the roof space'. The envelope would require a front wall height of 3.6 metres, with the remainder of the volume of the building contained within a 45 degree plane projected from that height.

(c)By lowering the building into the ground, the applicant has achieved general but not full compliance with the building height plane. however the design still does not respect the underlying intent of this provision to achieve a 'single storey, or low 2 storey dwelling utilising the roof space'. This is an issue of 'form' not simply of 'height'. The design is not compatible with a cottage form and relies in terms of architectural references, on a building (56 and 56A) approved under a different planning regime.

Side Setbacks
4. The proposal does not comply with the side setback requirements under Part B1.2 of DCP 2000 and it does not satisfactorily address the performance criteria that should be met to permit a variation to this requirement.

Particulars
(a) For the main building (containing the dwellings) the proposal provides a nil setback to the side boundary at ground floor and a 1.1 metre setback at first floor.
(b)A setback of 900 mm would be required for ground floor (allowing for side access) and of up to 2.7 metres would be required for the first floor under Part B1.2 of the DCP.
(c)Accordingly the development requires merit assessment under the performance criteria set out under Section B1.2 of the DCP.
(d)In relation to the performance criteria Section B1.2 of the DCP:
i)         The 'pattern of development' is compromised by this proposal, because the nil setbacks at ground floor do not respect the detached cottage character evident in the locality and specifically, on the subject site and adjoining sites to the south;
ii)        Higher portions of the building are set back, but are not in accordance with the control and result in amenity impacts;
iii)       The applicant has made no attempt to minimize the bulk and scale of development by reduced floor to ceiling heights. The floor to ceiling height of the living area is some 2.5 - 3.1 metres which is excessive under the circumstances and could be reduced by a stepping of the first floor plan. As the site slopes down from front to rear there is opportunity to minimize the impacts of the non complying side setback through stepping the building height down to the rear and this has not been proposed in this case;
iv)       The proposal adversely affects the amenity of adjoining properties by reason of its excessive bulk, overshadowing of 60 Cecily Street and privacy impacts to both properties. These impacts would in each case be reduced in severity if the proposed building had respected the performance criteria set out under Section B1.2, particularly by stepping down at the rear.

Elevation and Materials
5. The elevation and materials are inconsistent with the character of the area.

Particulars
(a)Principles for treatment of elevation and use of materials are set out in Part B1.5 of the DCP and also in the Desired Future Character Statement of the DCP for the Nanny Goat Hill Distinctive Neighbourhood. In this regard, Council's concern is that the architectural treatment adopts an overtly modern appearance that makes no reference to the buildings that are complementary and contributory to the character of the locality in terms of form (including roof form), height, proportion, detail or materials.

Conservation
6. The existing cottage meets the description of a small detached cottage and should be conserved as a contributory element to the character of the area, in accordance with Part B4.2 of DCP 2000.

Particulars
(a)Part B4.2 of the DCP sets out principles relating to the objective to 'prevent the demolition of or unsympathetic alterations to small houses that contribute to the heritage streetscapes and diversity that characterise Leichhardt's residential areas'.
(b)The existing cottage is consistent with the description of a 'small detached house',
(c)Council is not satisfied that the applicant's heritage assessment and information submitted on the condition of the cottage have adequately assessed the significance of the cottage, nor demonstrated that the cottage is structurally unsound and not worthy of retention. The applicant's submission also does not explore any avenues by which the existing cottage could be retained.

Amenity
7.Amenity impacts on neighbours,

Particulars
(a) The proposal is significantly at variance with development controls in Leichhardt LEP 2000 (FSR) and DCP 2000 (setbacks and building envelope). Its height, bulk and scale, being elements of those non compliances, have unnecessary adverse impacts on the amenity of 56 and 60 Cecily Street, by reason of bulk, overshadowing and privacy.

8. Issues raised by residents.
Particulars
(a)Loss of small detached house.
(b)Streetscape bulk and scale.
(c)Non-compliance with the 3.6 metre building envelope control.
(d)Non-compliance with clause 14 Urban Design Principles (note: now deleted from LEP 2000).
(e)Over development of the site relative to the majority of dwellings in this part of Cecily Street,
(f)Use of materials and design not in keeping with either the spirit or letter of the Leichhardt DCP.
(g)More traffic will be generated in an area that is already traffic stressed.
(h)Reasons for demolition are spurious and should not be accepted as valid arguments for the loss of another Lilyfield precinct cottage. Foundation non- compliance with BCA and drainage are not reasons for demolition. The existing structures on site should be re-worked to achieve the desired living spaces on site rather than demolition of all structures. Many renovations in Cecily Street have gained additional space through use of the roof space which does not have the same impact as the proposal.
(i)The proposal is completely out of character with all residences in the vicinity of the site.
(j)Lack of parking in this section of Cecily Street.
(k)The proposed roof lines do not step gradually down the hill and is not in accordance with the desired future character of the Eastern Residential Sector of the DCP.
(l)Bulk and scale impacts to adjacent property at 60 Cecily Street.
(m)Drawings submitted misrepresent the height of the building relative to No 60 Cecily Street. The existing ground level is up to 2 metres lower than that drawn.
(n)Loss of privacy resulting from both the rear balconies at first floor level and the rear terraces at ground floor level.
(o)Overshadowing of adjacent property at No 60 Cecily Street.
(p)Privacy impacts from first floor windows looking into the living area of 56A Cecily Street through the glazed roof.
(q)The excavation required to the proposed development may undermine the dwelling at 56A Cecily Street and have potential to do major structural damage.
(r)Rear lane to be used for parking access will make an already over used laneway even harder to access,
(s)Proposed tree planting may impact on the on-site detention tank located at the rear of 56A Cecily Street. The tree has potential for an aggressive root system that could cause major damage.
(t)Non-compliance with floor space ratio control of LEP 2000.
(u)Concern in relation to the proposed construction of the northern side boundary wall in close proximity to 56A Cecily Street in relation to fire and sound separation,
(v)Parking areas of existing approved similar residential developments are not used for parking. They are instead used for additional living areas.
(w)Inconvenience during construction period of development.
(x)The proposal would result in the block of Cecily Street between O'Neill Street and Brockley Street consisting of two original cottages and four modern townhouses which would drastically alter the character of the area in breach of Council's DCP 2000.

The respondent’s evidence was heard from:
Ms Villanova, resident and objector of No. 54 Cecily Street
Mr Naish, resident objector of No. 56A Cecily Street, the northern neighbour of the proposal;
Ms D Laidlaw, consultant town planner gave evidence for the council in Exhibit 10.
The evidence for the applicant was heard from:
Mr G Patch, chartered architect and heritage expert, who prepared a statement of heritage impact in Exhibit B;
Mr R Chambers, consultant town planner, who prepared an assessment report in Exhibit F and the State Environmental Planning Policy No. 1 objection to the statutory floor space ratio limit.
Mr R Staas, consultant architect and heritage expert had been agreed by the parties to be appointed by the Court to give evidence on heritage and conservation and urban design in Exhibits A and 9.
Ms Villanova said she had originally supported the contemporary design of Nos. 56 and 56A Cecily Street, because on the plans it looked like a modern interpretation of the old terrace house style. But she was very disappointed with the building as it turned out and the proposal was so similar it would also be unsympathetic to the streetscape.

Mr Naish’s house had zero side setback on the ground floor level as did the proposal. At the first floor level Mr Naish’s house had about 900 mm setback. The proposal had about 1.1 m side boundary setback at the first floor level.
Mr Naish had a particular concern that his living room had a long clear glass skylight to his living room and dining room that abutted the side boundary to the proposal at ground floor level. The skylight was about 15 m long and was located in the space created by 900 mm setback of the upper storey. The proposal having its upper storey wall 1.1 m setback from the boundary meant the skylight would look up to a wall instead of sky as now.
Mr Naish feared the daylight would be much reduced as well as the visual amenity. It would produce a much more enclosed or boxed in feeling to his living room and dining room. Since the skylight was on the south side of Mr Naish’s house, the skylight got little direct sunlight but did get ample daylight at the moment.
There had been 18 objectors to the original plans and three letters of objection to the amended plans. The general objections were to the alleged lack of fit into the detached cottage character of area, and the additional carparking generated in an area where a lack of on-site parking in most older houses created a high level of on-street parking.
The three objections to the amended plans plus Ms Villanova maintained similar objections saying the changes did not achieve satisfactory character to fit into the area.
Although they did not give evidence, the owners of the southern neighbouring property at No. 60 Cecily Street had objected to the original development on the basis of lack of fit into the character of the area, and the height of the proposal, and its impact of shadows on the house and backyard at No. 60 and the privacy impacts of overlooking the backyard and the studio and its verandah.
The amended plans which lowered the proposal were said by the applicant to reduce these impacts to acceptable levels.
Number 60 had not lodged a further objection to the amended plans, but Ms Laidlaw said the amenity impacts were not reduced to the levels required in the applicable statutes and controls. Because of that and the other non-compliances with the contextual character, the envelope and side setback controls, there should be no concession given to the State Environmental Planning Policy No. 1 objection to the FSR (floor space ratio). It was essentially those matters which caused the impacts that did not meet even the minimum requirements of the statute and controls. The objectives of the FSR are there to minimise building bulk and being 20% bigger than permitted, the extra bulk contributed to the amenity impacts.
Ms Laidlaw went on to assess the character of the locality and the fit of the proposal into it and the streetscape. She had met with Mr Chambers and they had produced a joint report in Exhibit 11.
In commenting on the floor space ratio exceedance, Ms Laidlaw said the desired future character statement for the Eastern Residential Sector of the Nanny Goat Hill Distinctive Neighbourhood under the Development Control Plan says to preserve and enhance the particular streetscape character unique to the eastern residential sector. The existing character statement says the area is predominantly single storey detached cottages of the late 19th and early 20th centuries. There is a mix of building materials with predominantly hipped and gabled roofs. A typical streetscape feature is the gradual stepping of cottages down the hill. There is a need to retain and enhance its unique built character.
The Conservation Area previously described does not cover the whole of the distinctive neighbourhood. The boundary of the distinctive neighbourhood with its neighbour of Easton Park Distinctive Neighbourhood is through Foucart Lane. As a result the subject site is on the boundary between two distinctive neighbourhoods and just outside a Conservation Area. Mr Chambers said the intermediate location of the site meant that the usual controls in the Conservation Area did not necessarily apply to the subject proposal although the general controls for the Eastern Residential Neighbourhood did. Bearing this in mind, Mr Chambers said the lowering of the building retains the stepping down of the hill character which is part of this section of Cecily Street. The proposal is now lower than Nos. 56, 56A and a little higher than No. 60. It is only about 600 mm higher than the existing cottage on the subject site, that is proposed for demolition.
The lowering also makes the house appear only 1½ storeys to Cecily Street which maintains the single storey, or low two storey character sought by the controls.
The side setback of the upper storey he said gives the detached cottage look of the street by having space between the proposal and No. 56A at the upper level.
Mr Chambers felt it did not undermine the objectives of the floor space ratio standard which had to be extracted from other parts of the statutes because there was no express statement attached to the 0.5 to 1 limit. The proposal is about 0.6 to 1.
The objectives of the Local Environmental Plan in summary are:
To provide standards such as the floor space ratio to ensure density, landscaped area, and new housing are complimentary to and compatible with the style, orientation and pattern of surrounding buildings.
Designs must take into account the suite of controls in the statute in the control plan to achieve the desired future character.
Under desired future character the controls are intended inter alia to preserve low scale cottage character and
To preserve the consistent rhythm of residential streetscapes created by regular allotment sizes, detached dwellings, hipped and gabled roofs, and stepping of houses down sloping streets.
Mr Chambers felt the style of the building and its mix materials and its form was compatible with all these objectives and therefore the floor space ratio exceedance was not the cause of any impacts that would prevent its approval. During the hearing after carefully examining the shadow impacts on No. 60, he agreed they occurred, but maintained any building on the north side and uphill of No. 60 would have difficulty in complying with the solar access control. Extra fencing or screening to prevent overlooking only added to the shadow impacts.
Mr Staas had looked at the same elements as Ms Laidlaw and Mr Chambers on streetscape and local character. His conclusions were in summary:
The objective of the council’s control plan and statement of desired future character is primarily aimed at addressing cumulative changes to the character that are not compatible with the desired retention and enhancement of the cottage form.
Mr Staas’ inspection of Cecily Street confirmed to him the single storey cottage character being predominant in the street. In looking at the proposed design he said the form and architectural expression of the proposed new buildings are alien to the context and would detract from the established small scale historic character created by the remaining late 19th and early 20th century housing that surrounds the site.
The street presentation and roof form of the proposal are particularly out of keeping with the desired future character as expressed in the Development Control Plan and would tend to be visually dominant detracting from the cohesive character of the street.

The architectural treatment of the design adopts an overly modern appearance that does not make references to the buildings that are complementary and contributory to the character of the locality in terms of form, height, proportion, detail and materials. The proposal relies on the design of Nos. 56 and 56A for most of its “compatibility” and that building was approved under former statutes and controls and is not considered to complement the existing character either.

The roof form of the proposal is particularly intrusive in this respect because it does not reflect traditional roof forms dominant in the area. Mr Staas said he was not opposed to contemporary design as such, but the proposal did not have compatible contemporary interpretation sympathetic to traditional forms.

In examining the existing cottage on the site Mr Staas had come to the conclusion that it is a sympathetic building to the existing character. There is a possibility it could be adapted with additions to enable the development of two dwellings on the subject site.
Mr Patch had prepared an investigation of the existing cottage which indicated it was not of sufficient quality to warrant being listed as a heritage item. However, it did contribute to the streetscape. Nevertheless Mr Patch had examined it and determined that it had deteriorated to such an extent, and already had changes to materials and finishes such that it was not worthy of retention and could be demolished.

Mr Staas agreed with Mr Patch insofar as the house was not worthy of listing as a heritage item. However, he had not been able to obtain access to the site until the hearing commenced. Having done so he did not agree that the interior of the original house had been changed to the extent that it was no longer authentic. He also noted that the vinyl weatherboards now on the outside of it had simply been attached over the original weatherboards. Further the house was quite sound structurally and would be suitable to an appropriate design for alteration and extension.

Mr Staas bore in mind the provision of the Development Control Plan seeking to prevent the demolition of or the construction of unsympathetic alterations to small houses that do contribute to the streetscape that characterises Leichhardt. He had come to the conclusion that the existing house should not be demolished on the basis of this proposal. He took the position should a more appropriate design be proposed it may be demolition could be agreed to.

Overall, I have come to the conclusion that the floor space ratio issue and the character and form of the proposal and its fit into the neighbourhood are the key issues. There are peripheral issues such as the overlooking and overshadowing of No. 60 Cecily Street which another design may be able to eliminate.
In being taken through the locality, I was able to see the detached cottage character of Cecily Street for myself, and was able to understand that the neighbouring property at Nos. 56 and 56A Cecily Street would be unlikely to be approved under the current statute and controls. It did have gables in the front elevation with modern interpretation of a Victorian roofed balcony at the upper storey level that revealed some attempt at simulating, in a modern design, some of the contextual details of the locality. However, the overall mass of the building with zero side setbacks was clearly not sympathetic to the cottage style of the locality. In particular most cottages had wider frontages such as the existing one where the building either had a wider lot or was situated on two narrow lots.

The subject proposal as a general description comprised in the streetscape elevation the two storey building with square projecting balconies protruding from the first floor towards the street with skillion roofs above them. It would be even less sympathetic to the detached cottage character than Nos. 56 and 56A. Like Nos. 56 and 56A, the proposal would be perceived as a full two storey building rather than single storey or single with rooms in the roof above. The lowering of the whole building by excavation into the ground in the similar way to Nos. 56 and 56A would not change this perception.

Overall I have concluded that Issue 1 and Issue 2 are determinative in this appeal and that the proposal exceeds the floor space ratio (FSR) and does not achieve an appropriate design with a character conforming with the applicable statutes and controls. The non-complying impacts are in part a result of the FSR excedance and therefore the SEPP No. 1 objection to the standard is not upheld.

The parties sought to make submissions on the question of costs following the publication of a judgment in this appeal. That opportunity can be granted if the parties so wish. However, I feel it is appropriate at this stage to make a decision that each party should pay its own costs subject to the parties having leave within fourteen (14) days to appear at callover to seek a further date for submissions.

Therefore the orders of the Court are:

1.     The appeal is dismissed.
2.     The exhibits are returned to the parties except Exhibits D, 4, 6, 7, 9, 11, and A.
3.     No order as to costs.
4.     Order 3 is stayed for a period of fourteen (14) days during which time if either of the parties so choose they may approach the Registrar at callover to have the matter re-listed for submissions on costs.

___________________
K G Hoffman
Commissioner of the Court

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