B & H Constructions v Parramatta City Council

[2006] NSWLEC 204

Land and Environment Court

of New South Wales

CITATION:	B & H Constructions v Parramatta City Council [2006] NSWLEC 204
PARTIES:	APPLICANT B & H Constructions RESPONDENT Parramatta City Council
FILE NUMBER(S):	11181 of 2005
CORAM:	Tuor C
KEY ISSUES:	Development Consent :- s96 Application to modify consent for multi unit housing works already constructed whether substantially the same whether attic a storey and impact on streetscape
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan 2001 State Environmental Planning Polcy No 1
CASES CITED:	Windy Dropdown Pty Ltd v Warringah Council (2000) NSWLEC 240 Lido Real Estate Pty Ltd & Anor v Woollahra Council NSWLEC118 Schroders Australia Property Management Ltd v Shoalhaven City Council and Anor [1999] NSWLEC 251 ; Moto Projects No. 2 Pty Limited v North Sydney Council (1999) 106 LGERA 298; 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685
DATES OF HEARING:	02/02/2006 and 21/04/2006
DATE OF JUDGMENT:	04/24/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr J Strati, solicitor Solicitors Avendra Singh Strati & Kam RESPONDENT Mr A Galasso, barrister Solicitors Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

24 April 2006

11181 of 2005 B & H Constructions v Parramatta City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the deemed refusal by Parramatta City Council (the council) of an application under s96 of the Environmental Planning and Assessment Act (EPA Act) to modify development consent 923/2002 at 718-722 Victoria Road, Ermington (the site).

2 Council approved the development application on 31 December 2002 to demolish the existing three dwellings and construct a multi unit housing development containing 22 dwellings above basement car parking.

3 The s96 application seeks to modify the consent to incorporate amended drawings. The main change, and the one in dispute between the parties, is the changes to the upper level (third floor storey).

4 The works proposed in the s96 application have been constructed, including the third storey. In accordance with the decision of Talbot J in Windy Dropdown Pty Ltd v Warringah Council (2000) NSWLEC 240 a s96 application which relates to development that has been already carried out can be considered on its merits.

The site and its context

5 The site is on the northern side of Victoria Road at its intersection with Fitzgerald Road, Ermington. It is generally rectangular in shape with an area of 3726sqm, a frontage to Victoria Road of 61.09m and 57.07m to Fitzgerald Road. The site has a steep slope from the north to the south (Victoria Road). The multi unit housing development over basement car parking is constructed on the site but is un-occupied as no occupation certificate has been issued for the development.

6 Surrounding development includes a mix of housing styles and forms. Immediately to the north of the site are single storey weatherboard houses. Further to the north are detached one and two storey houses. Immediately to the west are single storey houses. Bartlett Park is located opposite the site to the south, across Victoria Road. To the east on the opposite side of Fitzgerald Road is a single storey house.

Planning Framework

7 The site is zoned Residential 2(b) under Parramatta Local Environmental Plan 2001 (LEP 2001). The proposal is permissible within the zone. The site is at the edge of the 2(b) zone adjoining a Residential 2(a) zone to the west. Multi unit housing is not permissible in the 2(a) zone. Residential Flat buildings are not permitted in either the 2(a) or 2(b) zone.

8 Multi unit housing is defined as:

Multi unit housing means three or more dwellings on the same parcel of land where each dwelling has an individual entrance and direct private access to private open space at natural ground level for the exclusive use of the occupants of the dwelling, but (in the table to clause 16) does not include any other form of dwellings elsewhere specifically defined in this plan.

9 The objectives of the 2(b) zone relevantly include:

(a) to enhance the amenity and characteristics of the established residential area, and
(b) to encourage redevelopment of low density housing forms, including dual occupancies and multiunit housing, where such redevelopment does not compromise the amenity of the surrounding residential areas or the natural and cultural heritage of the area, and
(c) to ensure that building form, including that of alterations and additions, is in character with the surrounding built environment,
……

10 Clause 16(3) provides:

Consent must not be granted to the carrying out of development on land to which the plan applies, unless the consent authority is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

11 Clause 39 of LEP 2001 provides:

(1) consent shall not be granted to the erection of a building, if the height exceeds:
(a) two storeys above ground level for dwellings, dual occupancies and multiunit housing, or
(b) three storeys above ground level for residential flat buildings,
……

12 Storey is defined as:

Storey means the space within a building between one floor level and the floor level next above or, if there is not floor level next above, the ceiling or roof above, but does not include:
……
(b) attic space that is part of the dwelling unit immediately below and is incapable of being used as a separate dwelling unit.

13 The term attic space is not defined but I accept Mr Galasso’s submission, for the council, that the term is synonymous with attic room which is defined as:

Attic room means a room within the main roof space of a one or two-storey building no greater than 25 square metres in area, having a roof slope of not more than 35 degrees pitched from the ceiling level of the uppermost floor and may include dormer windows that:
(a) are not higher than the height of the main roof of the building, and
(b) are not more than 1.5 metres in width, and
(c) do not incorporate or access a balcony.

14 Prior to 17 June 2005 attic room was defined under LEP 2001 as:

Attic room means a room within the roof space of a one or two-storey building, having a roof slope of not less than 35 degrees and not more than 45 degrees pitched from the ceiling level of the uppermost floor.

15 Clause 40 of LEP 2001 permits a floor space ratio (FSR) for multi unit housing of 0.6:1. Attic rooms are excluded from the calculation of FSR. The development as approved complied with the FSR requirements of LEP 2001. If the attic rooms as built are considered to be a storey the proposal would exceed the requirement. The changes have also increased the size of these rooms by about 2sqm per dwelling which exceeds the control.

16 Section 96(3) of the EPA Act provides:

In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.

17 Section 79C (1)(a) refers to the provisions of any environmental planning instrument. Both parties agreed that the relevant provisions of LEP 2001 should be taken into consideration in the merit assessment of the application.

18 Section 96(4) of the EPA Act provides:

The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

19 The effect of s 96(4) is to make it clear that when considering the section 96 application the consent authority is not granting development consent.

20 The parties agreed that for the reasons set out in Lido Real Estate Pty Ltd & Anor v Woollahra Council NSWLEC118 and because of the operation of s 96(4) of the EPA Act that an objection under State Environmental Planning Policy No 1 is not required to vary the provisions of LEP 2001.

21 Parramatta Development Control Plan 2001 (DCP2001) was in force at the time the original application was assessed and determined and when the s96 application was lodged. Of relevance to the application are the design element guidelines, access for people with disabilities, landscaping/soft soil and private open space provisions.

22 Parramatta Development Control Plan 2005 (DCP2005) came into effect on 14 December 2005 after the s96 application was lodged. DCP 2005 replaced DCP 2001 but was not raised by the parties as a relevant matter for consideration.

The history of the proposal

23 A detailed history of the application is contained in the Statement of Basic Facts and the Statement of Evidence of Ms K Lafferty, council’s planning expert. In summary, the facts of relevance to the application are:

· Development application 923/2002 was lodged on 19 April 2002 to demolish the existing three dwellings and construct a multi unit housing development containing 22 dwellings above basement car parking. The application comprised 18 x 3 bedroom and 4 x 2 bedroom (plus study) dwellings with basement car parking for 42 cars, including 6 visitor spaces.

· The application was approved subject to conditions on 31 December 2002. The approval stated that the “development application including stamped plans has been granted consent subject to the following conditions.” The stamped plans refer to Drawing Nos: 0202 - 1C, 2D, 3E, 4C, 5C, 6C and 7D prepared by Arttech Design and Construction dated 29 March 2002 and the landscape plan 02.716 LSK 01 prepared by Greenplan dated 16.09.02 (exhibit 6). The application included a typical colour scheme and photomontages, but these are not stamped as part of the approval.

· On 27 April 2004 a private certifier issued the Construction Certificate (C-03-279).

· A development application (1339/2002) for strata subdivision of the development into 22 lots was approved under delegated authority on 28 January 2005.

· A s96 application (923/2002/A) was lodged on 27 September 2004 seeking to amend the approved development. The modifications included deletion of the lift, deletion of the party wall in the roof between dwellings, relocation of the basement stair, the raising of the finished floor level over the basement access ramp by 500mm and the addition of a caretakers toilet in the basement. The works for which approval was sought had been constructed. The s96 application was refused under delegated authority on 18 February 2005.

· The current s96 application (923/2002/B) was lodged on 13 May 2005. The application sought “alterations and amendments to the approved plans” as detailed in an attached letter by Mr K Burrell, the applicant’s town planning expert. The works included those for which approval had been sought under the earlier s96 application as well as additional works that had been constructed including an increase in the floor area of attic bedroom in townhouses 1-7, 9-15 and 20-22 and changes to the roof and elevations of these dwellings. The s96 application proposed that a new condition be added to the consent which referred to the amended drawings which incorporated the proposed changes. At the time of the hearing, Council had not determined the application.

· The applicant lodged a Class 1 appeal against the deemed refusal of the s96 application on 7 October 2005. The list of proposed modifications was amended to reflect the proposal as built and the experts agreed on the extent of amendments (exhibit E) shown in the “work as executed” plans being Drawing Nos 0202 - 1E, 2F, 3G, 4E, 5E, 6E, 7E and 8E prepared by Arttech Design and Construction (exhibit D).

· Council commenced Class 4 proceedings on 4 November 2005.

· The Class 1 appeal was heard on 2 February 2006. On the day, I provided preliminary findings on a number of the proposed changes, some of which required further changes to the proposed drawings. The appeal was adjourned to enable these changes to be made and for traffic evidence to be obtained in relation to compliance of the basement ramp with AS2890.1.

· At a telephone mention on 17 February 2006 I indicated that while the majority of the changes sought under the s96 application had an acceptable impact and could be approved, the third storey increased the bulk of the proposal and was unacceptable in its current form. The applicant requested the opportunity to investigate amendments to the third storey. Council did not oppose this course of action. The council and the applicant were unable to reach agreement on changes and no plans were submitted which proposed changes to the third storey.

· The applicant then sought leave to amend the s96 application to seek approval for the items which I had indicated could be approved. Council did not oppose this course of action. Talbot J directed the plans for which approval was sought be filed and served by 7 April 2006. A further hearing was held on 21 April 2006. Council indicated that there were still inconsistencies in the plans and that the proposed changes and approved plans could not operate as one approval. The applicant then sought approval for the plans which were originally submitted as part of the s96 application (exhibit D).

The issues

24 The Statement of Issues before the Court originally contained nine issues, however, as the hearing evolved a number of issues raised by council were resolved by the experts or by further amendments. The significant issue in the proceedings related to whether the change to the upper level would have an acceptable streetscape impact.

The Evidence

25 Mr K Burrell, for the applicant and Ms K Lafferty for the council provided town planning evidence. Mr L Marshall, for the applicant and Mr R Searle, for the council provided traffic evidence on the basement access ramp. Mr Skinner, of 1 Fitzgerald Road gave evidence on site. His main concern was the privacy impact on his back garden from the balconies which were not part of the original approval.

Substantially the same development

26 Section 96(2)(a) of the EPA Act states:

A consent authority may, on application being made by the applicant or any other person entitled to act on the consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the development which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)

27 Pearlman J in Schroders Australia Property Management Ltd v Shoalhaven City Council and Anor [1999] NSWLEC 251 states the appropriate test to determine this issue as being:

90.The question then is whether, on the facts, the changes made in the issue B and issue C plans so substantially or significantly changed the development that it can be said that in effect a new development application has been made. In my opinion, the appropriate test for determining that issue is to be found in Vacik Pty Ltd v Penrith City Council (Stein J, 24 February 1992, unreported) which dealt with s 102(a) of the unamended EP&A Act. That section permits modification of a development consent if “… the development to which the consent as modified relates is substantially the same development”. Stein J at p 3 stated the test in the following terms:

… ‘substantially’ when used in the section means essentially or materially or having the same essence”.

91. That formulation of the test was expressly approved by Mason P in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433 at 440.

28 To determine whether the development is “essentially or materially or having the same essence” Bignold J in Moto Projects No. 2 Pty Limited v North Sydney Council (1999) 106 LGERA 298 at 309, states:

The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development.

The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is “essentially or materially”” the same as the (currently) approved development.

The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).

29 Mr Burrell in his letter supporting the s96 application stated that:

….the proposed amendments would result in the development remaining substantially the same. In terms of quantity, the number of dwellings in the proposal is unchanged. The height of the building has not changed. The building envelope remains substantially the same.

In terms of quality, the development remains multi-unit housing by definition. The external appearance of the building has altered at first and second floor level but the building remains substantially the same. Although the appearance of the building has altered, a high standard colour scheme should improve the appearance of the development as well as restore the appearance of separate dwellings in it.

30 Council did not raise the issue of whether the development as proposed to be modified is substantially the same as that for which consent was granted. Not withstanding this was not in dispute between the parties, it is a matter that does have some merit, considering the extent of changes and the altered appearance of the development from the street. However, the issue was not ventilated in the hearing and as the application fails on its merits it is therefore not necessary for me to finally determine this question.

Changes to the upper level

31 The key difference in opinion of the experts was whether the changes to the upper floor result in the development appearing as a three storey building rather than the approved two storey with attic rooms in the roof. The experts disagreed on the impact that this change would have on the streetscape.

32 Mr Burrell stated that:

…even if the amended attics constitute a storey, any consequential breach of the height control in clause 39 of the LEP does not warrant refusal of the application for the following reasons:

· There is no additional manifest external impacts such as overshadowing or visual scale and bulk arising from the constructed attics.

· The height of the development from natural ground level to ridge remains unchanged from the approved

· The appearance of the third floor attic level remains compatible with the building

· The non-compliance is a purely technical one and arises from an unfortunate situation with respect to the approved plans and the realities of construction.

33 Mr Burrell also considered that if the attic rooms were considered to be a storey this would result in a technical non compliance with the FSR control that was justified for the same reasons as the height control non compliance.

34 In relation to the last dot point, Mr Burrell stated that there were “errors in the design of the building in the DA plans which were repeated in the construction certificate plans and not detected by either the Council, the applicant or the principle certifying authority.” He noted that the applicant had bought the site with the development consent and then obtained a construction certificate. In his opinion these “errors” created uncertainty as to how to construct the building and that the as built development reflected the applicant’s attempt to make sense of the “inconsistencies and contradictions” in the approved plans.

35 Mr Strati, for the applicant, submitted that the inconsistencies in the approved plans were such that it could be interpreted that the loft floor plan proposed vertical walls, similar to that which had been constructed.

36 Mr Burrell concluded that

the modifications to the building do not detrimentally alter the appearance of the development and will not adversely impact upon the visual amenity for the future occupants of the site, neighbouring properties and the local area.

37 Ms Lafferty did not consider that the inconsistencies in the plans justified the construction of what has been built. She considered that if there was uncertainty this should have been ratified through an amended application prior to construction. She stated that:

At the time of the assessment of the original application, the uppermost level, as indicated on the stamped approved plans, was considered to be an attic, based upon the interpretation of the day. However since the upper level was not constructed in accordance with stamped approved plans, as the dormers have been replaced with continuous walls and the internal floor space increased in size, the previously approved “attic” now may be considered as a “storey”. The subject application therefore represents a 3 storey development, which exceeds Council’s development standards for height. This additional storey results in significant streetscape impacts as the height is uncharacteristic of the built form of the existing surrounding area, as well as the likely future development of the area.

38 Ms Lafferty concluded that “The modifications proposed in the subject application completely change the appearance of the development”. She referred to the comments of the Parramatta Design Review Panel which commented inter alia:

…these changes have diminished the amenity and quality of the development….the development as built lacks streetscape quality in terms of top floor…design. The top floor is poorly articulated….

39 While I accept that there are inconsistencies between the plans and elevations in the approved plans I do not accept that these are sufficient to interpret that the third floor has been built in accordance with the plans or to justify the construction of the third floor in its current form.

40 The approved elevations and photomontages, which accompanied the application, clearly indicate that the appearance of the building as two storeys with dormer windows within the steeply sloping tiled roof. The dormers are large and accentuated by the balconies which open off them, however, the roof is still the dominant form.

41 The changes, which reflect the as built development, change the attic roof form into an additional storey as defined under LEP 2001 and also in the appearance of the building. The changes create a continuos wall which appears as an additional storey with substantial balcony structures. The pitched roof is largely obscured by this level and is not the dominant element. The impression of the roof form that extends from the ridge to the eaves line is clearly lost.

42 This change in appearance of itself is not a reason to refuse the application, but the question is whether the extra storey has an appropriate impact considering the planning controls.

43 The parties agreed that the third storey did not result in unacceptable overshadowing, privacy or amenity impacts on adjoining residential development. The main concern of council was the impact of the change on the streetscape and its inconsistency with what is envisaged by the planning controls.

44 I accept that this is a valid concern and one that warrants refusal of the application. While the overall height of the development has not increased, it is bulkier than the approved development. The lack of separation and the removal of the sloping roof form between what were the dormer windows, the removal of the blade walls between the dwellings, the gable ends of the building and the gable detail of the second floor balconies result in the clear impression of a three storey building which is also of bulky appearance and poorly resolved in architectural terms.

45 The bulk of the proposal is not consistent with the objectives of the 2(b) zone. The objectives seek to “ enhance the...characteristics of the established residential area” achieve “low density housing forms” and “ensure that built form is in character with the surrounding built environment.

46 The surrounding built environment is largely detached single storey houses. While the area is one which the planning controls provide incentive for redevelopment and is likely to change, to date this has not occurred. It is reasonable to expect that the change that will occur over time is one that is envisaged by the planning controls. This form of development is two storeys with attic rooms in the roof and an FSR of 0.6:1. Such a form of development would be compatible with the established character of the area and the adjoining 2(a) zone. The development proposed in the s96 application is not a form anticipated by the planning controls. It is of a height, bulk and scale that does not comply with the provisions of LEP 2001 and does not meet the objectives of the zone. On this basis the application must fail.

Other changes

47 The other changes sought by the s96 application are generally acceptable either as proposed or with amendments. Despite Mr Galasso’s submission that in accordance with the decision of McClellan CJ in 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685, it is possible to approve those parts of the s96 which are acceptable and amend or condition those parts which are not, I find that these changes and the changes to the upper level are interlinked. The logistics of such a course of action in this case is impracticable and does not address the principle issue of the changes to the upper level. The changes to the upper level are so significant that they cannot be excluded from the modifications sought. If the changes to the lower levels were to be approved and the upper level remain as the approved development the plans would be inconsistent. The upper level would not “sit” above the amended lower levels and as there is already inconsistencies in the approved plans a part approval, even if legally feasible would only add to the confusion.

48 The applicant was given the opportunity to amend the upper level or to submit an amended application which sought approval for those parts of the proposal which could be approved as discrete elements. Neither of these alternatives were achieved and approval of the original application is sought. However, as the upper level changes fail on their merits the other changes cannot be approved. To assist the parties I will briefly address the other changes in contention between the parties.

49 Access ramp: the access ramp does not comply with AS2890.1. Expert evidence was provided by Mr Marshall (filed on 17 February 2006) as to whether the non compliance of the access ramp was acceptable for vehicle movements and safety. Mr Marshall has made a series of recommendations to meet the intent of the standard. Mr Searle has reviewed Mr Marshall’s report and added the additional requirement that the wall to the north of the driveway should be lowered to 600mm above the driveway level, or the natural ground level of the adjoining property.

50 In addition, due to the steepness of the ramp and the removal of the lift, Mr Marshall recommended that the body corporate arrange for the garbage bins to be taken and collected from the basement to Fitzgerald Road. This would need to be incorporated as a condition in any approval of a s96 application. Subject to these changes the access ramp, although non compliant, is acceptable.

51 Disabled Lift: the approved development included a lift from the basement car park to the ground floor pedestrian entrance lobby to provide disabled access. All the townhouses have stair access from the basement car park to their dwellings. There is also a communal stair access from the basement car park to the ground level.

52 The development has been constructed without the lift and replaced on the basement level with a meter room and caretaker’s toilet.

53 Mr Burrell considered that the lift was unnecessary because, as approved, the lift provides disabled access only to the ground level lobby. From this point no disabled access within the development is available to any of the dwellings and no dwellings have been identified as accessible units. The dwellings are three storeys accessed by stairs with only living areas at ground level and are unsuitable for use by people with a disability.

54 Ms Lafferty recognised that no direct access can be achieved from the lift to the main entrance of any dwelling through the development but she considered that the lift should not be deleted as access can be achieved to:

· the front entry of dwellings 14 and 15 via the footpath.

· The front entry of dwellings 11 via the footpath and the rear courtyard gate

· The rear courtyard gates of dwellings 1 to 7.

55 The proposal as approved does not comply with the requirements of DCP 2001. I accept Mr Burrell’s evidence that the development as approved is unsuitable for use by people with a disability. Occupants are likely to access their dwellings via the staircase from the basement. The lift is therefore likely to be used only by visitors and as it provides access only to the ground level is of little benefit and can be deleted.

56 Balconies to dwellings 16-19: Mr Burrell considered that the approved plans were inconsistent as the balconies are not shown on the plans or elevations but are shown on the section to dwelling 17. In his opinion it is therefore not clear as to whether the balconies are approved or not. If not approved he considered that they were a sufficient distance from the adjoining property, 1 Fitzgerald Road, to have no adverse privacy impact and did not add to the bulk of the building.

57 Ms Lafferty held the contrary opinion, however, she accepted that the provision of planter boxes on the balconies of units 16 and 17 would reduce the overlooking impact to an acceptable level. The balconies of dwellings 18 and 19 are sufficient distance to have an acceptable impact. Mr Lafferty maintained her concern about the additional bulk of the development.

58 I accept that the balconies with the planter box will not have an adverse privacy impact on the adjoining property and do not add sufficiently to the bulk of the building as approved to warrant refusal.

59 Roof of Townhouse 15 converted to a balcony: Mr Burrell and Ms Lafferty held different opinions as to whether the conversion of the roof to a balcony was acceptable. Ms Lafferty considered it added to the bulk of the building and would have adverse privacy impacts. Mr Burrell held the contrary view. I accept Mr Burrell’s evidence that the terrace will not result in privacy impacts or an increase in bulk sufficient to warrant its refusal.

60 Open space to townhouse 8: the approved development included open space which faces Victoria Road. The s96 application proposes that part of this be used to accommodate the relocated basement stair and an Energy Australia substation. Mr Burrell considered the change to be acceptable as the area to be utilised is not directly accessible from the living areas of townhouse 8 being at footpath level facing Victoria Road and as such is unlikely to be used as private open space. The remaining landscaping provides sufficient amenity for the dwelling. I accept Mr Burrell’s evidence that as approved the area was unlikely to be used as private open space and while the change represents a reduction in the area it is not sufficient to warrant refusal of the application.

61 Rear dormer windows: the approved plans proposed dormer windows to the rear of townhouses 1-14 and 20-22. The development as built retains the external form of the dormers but does not include openable windows, rather the dormers are solid to provide storage areas. The experts agreed that this change had an adverse impact on the appearance of the building and prevented cross flow ventilation in the upper floor. I agreed that the windows should be openable, as approved.

Orders

62 For the above reasons the Orders of the Court are:

1. The appeal is dismissed.

2. The s96 application to modify development consent 923/2002 to construct a multi unit housing development at 718-722 Victoria Road, Ermington is refused.

3. The exhibits may be returned.

__________________
Annelise Tuor
Commissioner of the Court