Foneg Pty Limited

[2004] NSWLEC 26

Land and Environment Court

of New South Wales

CITATION:

Foneg Pty Limited [2004] NSWLEC 26

PARTIES:

APPLICANT
Foneg Pty Limited

RESPONDENT
Auburn Council

FILE NUMBER(S):

10925 of 2003

CORAM:

Watts C

KEY ISSUES:

Development Application :- Multiple dwellings
Whether or not the proposal would be compatible with the existing and likely future character of the area and the amenity of nearby properties in terms of scale - bulk - height - siting - landscaping - and car parking
Whether or not all car parking should have been located underground in a basement
Whether or not the minimum rear-building setback should have been 20m.

LEGISLATION CITED:

Auburn Local Environmental Plan 2000, (ALEP2000)
Auburn Development Control Plans 2000 - General Requirements, (DCPGR)
Auburn Development Control Plans 2000 - Multiple Dwellings, (DCPMD)
Environmental Planning and Assessment Act 1979, ss79C and 97

CASES CITED:

DATES OF HEARING:

28, 29/01/04 and 1/2/04

DATE OF JUDGMENT:

02/10/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr D J Galpin, barrister, instructed by
Mr R Creighton, agent

RESPONDENT
Ms C A Schofield, solicitor
of Pike Pike and Fenwick

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10925 of 2003

Watts C

10 February 2004

Foneg Pty Limited

Applicant

v

Auburn Council

Respondent

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Auburn Council (the council) of a development application to demolish an existing dwelling house and to erect seven (7) two-storey dwellings with at-grade car parking and open space and to strata subdivide at Lot 1, DP 8546 and Lot B, DP 103601 being No 16 Burke Avenue, Berala.

2 I visited the land in company with the parties on the morning of the first day of proceedings and heard evidence of local residents concerning the proposal.

3 I have concluded that that the application should fail as it would not meet the objectives of the development control plan for multiple dwellings, the car parking is not underground and the rear building is not setback is not at least 20m from the street alignment, leaving at least a 7m gap, and adverse environmental impacts would flow.

The land

4 The land is situated on the western side of Burke Avenue and is ‘L’ shaped with a frontage of 15.685m, a rear boundary of 31.67m, a depth of 64.645m along its northern boundary and along the southern boundary the front portion of the land has a depth of 40.245m and the rear portion a depth of 24.385m, giving an area of 1,409m2.

5 The land is generally level in the east west direction and has a slight cross fall from south to north. Erected on the land is an older style fibro and timber dwelling situated towards the street frontage. The rear is undeveloped. A sewer main passes through the land in a north south direction and is located near the rear of the front part of the land, just behind the existing dwelling and has an invert level around 1.5m below the natural ground level. This main is significant as it places a constraint on underground car parking that is required by the development control plan that applies to the land. However, evidence suggests that only the position of any ramp leading to a basement car park would be so constrained and in the widened rear part of the land it would be possible to locate a basement car park with ramp access over the sewer line.

6 The area is characterised by older-style single-storey fibro dwelling houses some of which have been refurbished, brick veneered or replaced with new dwelling houses.

7 A single storey brick and tile dwelling house is erected on the adjoining property to the south. A driveway abuts the subject land and a shed is located in the rear yard of that property adjoining the southern and eastern boundaries of the subject land. It would appear that in the past the rear of this property has been subdivided and consolidated with the subject.

8 The adjoining property to the north is triangular in shape and occupied by a single -storey fibro and tile dwelling house with carport. To the rear are other residential allotments developed with both single-storey and two-storey dwelling houses.

9 Diagonally opposite the subject land and to the north is a small retail and commercial centre. Further to the north is located the Berala Railway Station about 50m distant.

10 Burke Avenue is a fully constructed local road with bitumen carriageway, concrete kerb and gutter and foot paving. A number of mature trees are located within the road reserve.

Relevant planning controls
Auburn Local Environmental Plan 2000, (ALEP2000)

11 Under the provisions of the ALEP2000, which came into operation on 19th October 2000, the land is zoned 2(b) Residential (Medium Density), and the proposal is permissible with consent.

12 Part 2 cl 8 of the ALEP2000 contains its aims and specific objectives:

8. Specific Objectives: The specific objectives of this plan in relation to the environment are as follows;
(a) ...
(b) to ensure that the natural environment is duly considered in the decision making process,
(c) to encourage an efficient means of disposing of storm water that reduces the potential for flooding without reducing the ability to rehabilitate Auburn's waterways.

13 The specific objectives of this plan in relation to social development are:

(a) ...
(b) ...
(c) to increase the housing choices available within the LGA while improving residential amenity,
(d) ...
(e) to ensure that social issues and needs are adequately addressed in the Council's decision marking process.

14 The specific objectives of the ALEP2000 in relation to the character and amenity of the LGA are:

(a) to recognise the special character and function of individual areas within the LGA,
(b) to ensure that development improves the environmental character and quality of streetscapes in the LGA,
(c) …
(d) to ensure that redevelopment improves streetscapes and is in keeping with the character with the LGA.

15 Clause 9(5) of Part 3 of the ALEP2000 contains the general zoning controls provide:

The consent authority must not grant consent to the carrying out of development on land to which this 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.

16 Clause 12 of the ALEP2000 provides that the objectives for this 2(b) zone are:

(a) to permit multiple dwelling residential development on appropriate sites,
(b) to permit residents to work at home where there is no adverse impact on the amenity of the area,
(c) to permit appropriate uses in the zone that complement the residential nature and functioning of the zone.

17 Under the provisions of the Residential 2(b) zone ‘multiple dwellings’ are permissible with consent and defined in Schedule 1 of the ALEP2000 as:

…two or more dwellings, whether or not attached, on one allotment of land, each with private open space at or near ground level, consisting of development commonly referred to as medium density residential development and includes development such as dual occupancies, villas, and townhouses but does not include residential flat buildings.

18 Clause 14 of the ALEP2000 relates to general restrictions on development in residential zones and provides:

Consent may be granted for development on land within Zone No. 2(a), 2(b) or 2(c) only if, in the opinion of the consent authority, it is compatible with the existing and likely future character and amenity of nearby properties in terms of;
(a) its scale, bulk, height, siting and landscaping, and
(b) its operation, and
(c) traffic generation and car parking, and
(d) noise, dust, light and odour nuisance, and
(e) privacy and
(f) stormwater drainage, and
(g) hours of operation, and
(h) overshadowing.

19 Clause 48 of the ALEP2000 relates to surrounding lots and provides:

The consent authority must not consent to the development in Zone No 2(a), 2(b), 2(c), 3(a), 3(b), 4(a), 4(b), 4(c) or 4(d) if it considers that the development will prevent the surrounding lots from being developed in accordance with this plan.

Auburn Development Control Plans 2000-General Requirements, (DCPGR)

20 Part A of the DCPGR introduces the development control plans, outlines their legal basis, why they were prepared, where they apply, their relationship to the approval process and other legislation. The objectives of the plans, the meaning of terms used, the structure of the plans and a description of the localities and strategic planning intentions for Auburn are also provided in this part. The council’s requirements for achieving an appropriate urban character, landscaping, ecologically sustainable development, (ESD), and pollution control are described.

21 Clauses 10.2 and 10.3 of DCPGR are:

• a set of objectives
• performance criteria, and
• development standards.
The Objectivesspecified for each design element represent the outcomes that Council wishes to achieve.
The Performance Criteriarepresent a means of assessing whether the desired outcomes will be achieved. Council will consider how well each of these criteria (where relevant) have been addressed by the applicant or designer when determining an application under this Plan.
The Development Standardsare possible ways of achieving the outcomes. While these solutions may satisfy the performance criteria, other solutions can also be adopted.

10.3 It is essential that all developments satisfy the performance criteriato meet the objectives of that criteria, and in some cases, development standards may not be the best solution. The aim is to suit the approach to the site while satisfying customers' requirements and enable proponents to develop a variety of design responses.

22 Clause 11 of DCPGR sets out planning intentions for the Auburn/ Berala residential area and states:

This locality extends from the Auburn Town Centre (ie. Beatrice Street) south towards the south western railway line which runs from Lidcombe South - west to Liverpool. Auburn Hospital is located within this locality and is positioned on a small ridgetop and hence, is a visual focal point. Medium density housing in the form of townhouses surrounds the hospital and extends from Beatrice Street in the north to Water Street. The predominant form of housing changes to detached dwellings from Water Street to about 200 metres west of the railway line.
Traditional two and three storey residential flat buildings surround the Berala commercial area and railway station. The Berala commercial area centre is a neighbourhood shopping centre, located adjacent to the Berala Railway Station with buildings being of one and two storey scale. Multiple dwelling housing in this locality would be well serviced by public transport facilities and in close proximity to other community services and the commercial centre of Auburn.
Intent
New multiple dwelling housing should be designed to maximise compatibility with existing established housing, particularly at the edges of sites.

23 DCPMD, which came into effect on 24th September 2003, applies to the land. DCPMD relates to multiple dwellings as defined under the ALEP2000, and contains a statement of intent and provisions relating to:

• Built form,
• Energy efficient design and water conservation,
• Privacy and security,
• Access and carparking,
• Open space and landscaping,
• Subdivision,
• Ancillary site facilities,
• Adaptable housing.

24 Each section of DCPMD contains objectives, performance criteria and development standards. Importantly various building envelopes graphically explain the physical form that multiple-dwellings might take. Two aspects described in these building envelopes that the council considers important is underground car parking, and a gap of 7m behind the first row of houses facing the street. By encouraging applicants to provide underground car parking the council is seeking to free up the design and to improve the design of multiple dwelling. The gap is to provide a break in the bulk of buildings and to provide outlook between buildings.

The proposal and its history

25 Development application No 027/03 was lodged with the respondent council on 22 January 2003 to demolish an existing dwelling house and to erect seven (7) two-storey dwellings with at grade car parking, open space and to strata subdivide the land.

26 The proposal is described in plans prepared by Excell Design Consultants: marked Job No 02051, Drawing Nos. DA-01/A-05/A. The plans were amended prior to the hearing to reduce the number of bedrooms. In some of the presently proposed 2-bedroom dwellings the bedrooms had been changed to sitting rooms. As amended, there would be three x 3-bedroom dwellings and four x 2-bedroom dwellings. Each dwelling would comprise in addition to the bedrooms, a lounge room, dining room, kitchen, laundry and bathrooms.

27 Each dwelling would be provided with either a single or double garage providing ten (10) at grade car parking spaces and a car wash bay. This would meet the council’s car parking requirements, provided that there are no more than three x 3-bedroom dwellings, which require 2 car parking spaces each. The applicant was willing to submit to a condition to ensure that the sitting room was not used as a bedroom.

28 Each dwelling would also be provided with a courtyard of at least 35m2 in area.

29 Pedestrian and vehicular access to the development would be obtained from a driveway adjacent to the southern boundary of the land.

30 Landscaping is proposed however, because of the tightness of the design no landscaping would be provided along the side of the proposed driveway adjacent to No 14 Burke Avenue, Berala.

31 The application was notified between 23 April 2003 and 7 May 2003, to nearby owners and occupants and the council received thirty-six (36) letters (including 32 pro-forma letters) and a petition containing fifty-four (54) signatures objecting to the development. Objections included:

• Opposition to medium density housing in the area as it is not in character with existing single dwellings;
• Inadequate infrastructure is available to cater for medium density housing in the area;
• The development will attract undesirable types and result in a less clean and tidy area with more crime and noise;
• The development site has inadequate width and size;
• Inadequate open space;
• Inadequate access and traffic safety;
• Inadequate onsite parking;
• Privacy impacts;
• Shadow impacts; and
• Too many rubbish bins on street.

32 When the appeal was filed, the council had not formally considered the application, however, on 23 September 2003 the council refused it for four reasons:

1. The design is not in conformity with the provisions of Council's Residential Areas Development Control Plan particularly in relation to the width of the site, off-street parking requirements and the building height plane.
2. The building form, scale and design are such that it would create an undesirable precedent in this recently zoned area which has not had any medium density development approved to date.
3. The driveway width at less than 3.5 metres is inadequate and no landscaping strip has been provided adjacent to the southern side boundary which contains the driveway is considered unsatisfactory.
4. The development is in breach of the building line for this type of proposed structure in its setting.

The hearing

33 The appeal was filed on 8 August 2004 and was a deemed refusal.

34 At the hearing the court heard evidence on behalf of the respondent council from:

• Mr Binh Tran, resident of No 22 Burke Avenue, Berala, when standing on the footpath;
• Mr C Espina, resident of No 20 Burke Avenue, Berala, when standing in front of No 16 Burke Avenue and in his backyard;
• Mr P Jurcevic, resident of No 14 Burke Avenue, Berala when standing in front of No 16 Burke Avenue and on No 14 Burke Avenue;
• Mr Quan Loi, resident of No 12 Burke Avenue, Berala, when standing on No 14 and also see his letter in Exhibit 3, p 31;
• Mr Jurcevic Senior, resident of No 14 Burke Avenue, Berala, standing in the front yard of that property;
• Ms E J McCredie, urban designer and architect of Auburn Council, [Note: Exhibit 9 Statement of evidence];
• Mr K J Smith, town planner of Auburn Council, [Note: Exhibit 10 Statement of evidence].

35 On behalf of the applicant evidence was given by:

• Mr P C North, consultant architect, [Note: Exhibit B Statement of evidence];
• Mr L S Winnacott, town planner, [Note: Exhibit A Statement of evidence].

36 On behalf of the applicant, Ms Marshall-McClelland, hydraulic engineer, and Mr T Beardsmore, access consultant, prepared written evidence and they were not required to give oral evidence.

37 On 7 October 2003, the council filed a statement of issues.

1. Whether the proposed development meets the specific objectives of Clause 8 of Auburn Local Environmental Plan 2000 ("LEP 2000') and, in particular, objectives 4(a), (b) and (d).
2. Whether the proposed development is consistent with the objectives for the Residential 2(b) zone as specified in Clause 12 of LEP 2000.
3. Whether the proposed development should be approved given the provisions of Clause 14 of LEP 2000 and the incompatibility of the proposed development with the existing and likely future character and amenity of nearby properties in terms of scale, bulk, height, siting, landscaping, carparking and stormwater drainage.
4. Whether the proposed development is inconsistent with Clause D 1.2 of Auburn Development Control Plan 2000 - Multiple Dwellings as effective 24 September 2003 ("the DCP') and whether the proposed development will produce multiple dwellings that are pleasurable to live in and that create enjoyable urban places, have a high level of amenity, contribute to the overall street locality and minimise the impact on the environment.
5. Whether the proposed development meets the built form objectives at D 2.0 of the DCP and in particular "a", "b"; "c"; "d" and "f'.
6. Whether the proposed development complies with Clause D 2.1 of the DCP and in particular whether it meets the site area development standards of 18 metres minimum width. Further, whether the subject site is deemed a "battleaxe allotment" which is not suitable for multiple dwellings.
7. Whether the proposed development should be approved given the non compliance with Clause D 2.3.1 of the DCP and in particular the intrusion of the upper level balcony on the front elevation 600mm beyond the 4m building line.
8. Whether the proposed development should be approved given the failure to provide a minimum rear-building setback of 20m contrary to Clause D 2.3.3 of the DCP.
9. Whether the proposed development should be approved given the failure to provide off street parking of two spaces per three-bedroom dwelling plus one communal car washing area contrary to Clause D 5.1 of the DCP.
10. Whether the proposed development should be approved given that all carparking has not been located underground in a basement carpark contrary to Clause D 5.2 of the DCP.
11. Whether the proposed development should be approved given the failure, to provide private rear courtyards for each dwelling with minimum dimensions of 5m contrary to Clause D 6.5 of the DCP.
12. Whether the proposed development should be approved given the failure to provide 8 cubic metres of storage space per dwelling forming part of a garage or lockable unit at the side of the garage contrary to Clause D 8.3 of the DCP.
13. Whether the proposed development should be approved given that the proposed driveway is less than 3.5m contrary to Clause D 5.3 of the DCP.
14. Whether the proposed development includes a minimum of one adaptable dwelling unit for long term accessibility purposes as required by Clause D 9.1 of the DCP.

15. Whether an easement for drainage would be provided for drainage at the rear of the site by gravity to the street as the land is low lying and falls away to the rear.
16. Issues raised by local residents/objectors.
17. Circumstances of the case and the public interest.

38 The following emerged as the salient issues:

• Whether or not the proposal would be compatible with the existing and likely future character of the area and the amenity of nearby properties in terms of scale, bulk, height, siting, landscaping, and car parking;
• Whether or not all car parking should have been located underground in a basement;
• Whether or not the minimum rear-building setback should be 20m.

The evidence and findings
Whether or not the proposal would be compatible with the existing and likely future character of the area and the amenity of nearby properties in terms of scale, bulk, height, siting, landscaping and car parking

39 The existing character is that of a low-density residential area. The parties agreed that the character of the area is likely to change as development takes place under the newly adopted Development Control Plan for Multiple Dwellings, (DCPMD).

40 The parties agreed that the likely future character would be an outcome of the operation of the DCPMD. The DCPGR is also, in the applicant’s submission, to be taken into account. However, Ms Schofield, for the council, submitted that the DCPGR is superseded by the DCPMD. I am persuaded by the submissions of the applicant that the DCPGR still applies as part of the development control plan package for Auburn; however, special regard is to be had for the DCPMD as it applies to multiple dwelling developments on the land.

41 The requirements of the DCPMD have been a ‘focal point’ for my consideration of the environmental impacts of the proposal. [Note: Zhang v Canterbury City Council (2001) 115 LGERA 373 at [74] - [75], per Spigelman CJ, with Meagher and Beazley JJA agreeing].

42 I accept the evidence of Mr Winnacott that under the provisions of the ALEP2000 other uses are permissible in the 2(b) Residential (Medium Density), zone and the likely future character of Berala will be formed in part by development other than multiple dwellings. However, I am satisfied that as this area is predominantly residential in character, and conveniently located near Berala train station, multiple dwellings developed under the requirements of the DCPMD are likely to predominate. Thus I am satisfied it is appropriate to compare the proposal against the type of development shown in the envelope diagrams derived by applying the DCPMD requirements.

43 The parties agreed that the DCPMD couldn’t be interpreted as a prohibition on developing land for multiple dwellings with a frontage less than 18m. Ms McCredie recognised this, when she pointed out that if the land, which has a 15.685m frontage, were developed, only two small frontage dwellings or one large dwelling could be accommodated on Burke Avenue. She also agreed that the reduced frontage made the development "tight". However, assuming that the land can be developed for multiple dwellings, I have compared other aspects of the design with that likely under the envelopes or templates of the DCPMD.

44 I am satisfied that the proposal would have scale, bulk, height slightly different to that, likely to be achieved by applying the templates of the DCPMD. This was graphically displayed yellow outline in Exhibit 19. Ms McCredie added the yellow lines on this exhibit to show the type of development, in plan, that might be likely were the land developed for multiple dwellings under the DCPMD. The proposal is for a straight 58m-length of building in the east west direction and the 18m template would require one or two dwellings fronting and facing the street, a gap of 7m behind the front dwelling/s and the rear dwelling commencing on the far side of the gap about 20m distant from the street. The rear section of the building would be likely to be on a different alignment to the front building, of lesser length, separated from it by open space, and with landscaping within the 7m gap. Ms McCredie was of the opinion that this would result in a development of vast improvement over the proposed continuous building as if would offer relief to neighbours and the front building that would ‘line the street’ would be softened by landscaping to its rear.

45 This landscaped 7m gap would provide visual relief opposite the living room windows of the dwelling at No 14 Burke Avenue. This would improve the outlook from that neighbouring dwelling as was acknowledged by both Messrs Winnacott and North.

46 As the land widens out at the rear a second row of buildings is possible both under the template and as proposed. Apart from at grade car parking, the rear building form of both the proposal and a development under the template, would be similar.

47 From viewpoints in the street the witnesses acknowledged, to greater and lesser degrees, that the gap if landscaped would tend to soften the extent of building. Mr Winnacott said that it would not do much to soften the front section of building but might soften the visual impact of a corner of the rearward section of building. As was suggested by Ms McCredie and Mr Smith the gap would reduce the length of building in the east west direction from the 58m as proposed to something less and improve the streetscape.

48 Under the template, more landscaping would be possible with the car parking in a basement than as proposed. The proposed at-grade garages would limit the land available for open space and landscaping. Despite this, it was agreed that the proposal would provide landscaped open space to meet the numerical standard of the DCPMD of 30% and the proposed courtyards, which do comply in area, would almost comply with the length and width courtyard requirements of the DCPMD.

49 One failing of the proposal is that the driveway abutting the fence line of the neighbouring property at No 14 Burke Avenue could not be landscaped due to insufficient width in the frontage of the land. If the land were developed under the templates of the DCPMD, the driveway might abut the southern side of the front dwelling/s and in the setback to the side boundary with No 14 Burke Avenue there might be some landscaping. This would not preclude the eastern town house retaining its northern aspect living room windows onto the northern side yard, as presently proposed, if it were the only dwelling fronting Burke Avenue.

50 So although the proposal almost meets the landscaping requirements with at-grade car parking a proposal that would more closely conform to the templates of the DCPMD could provide more landscaping that would soften the visual bulk and improve the outlook from neighbouring properties.

51 As a result of placing the car parking below ground and providing more landscaping at ground level, the competent designer might also increase the yield of the proposal and there is a likelihood that more dwellings could be oriented to the north. Dwellings No 6 and 7 are proposed to be oriented to the south as the car turning area is presently proposed to the north of these dwellings. If the car parking were underground the open space and living areas of these two dwellings could be oriented to the north, thereby improving solar access. Placing the car parking in a basement could enable the space between Dwellings No 6 and 7 to be utilised for a additional dwelling. Similarly, another dwelling might be accommodated in the northern building by placing the at-grade car parking in a basement.

52 The adverse environmental impact resulting from non-compliance with the DCPMD is a reason to refuse the present application. The council is attempting to improve the standard of design for multiple dwellings in Auburn through the application of its DCPMD and an increase in the amount of landscaping would enhance development.

Whether or not all car parking should have been located underground in a basement

53 This is the element of the DCPMD that would make the most significant difference in the form of development. By placing all carparking underground as required by the DCPMD, the ground level would be freed for more dwellings, landscaping and open space.

54 Although only 30% of the site area is required as landscaped open space and can be achieved with the present proposal, a greater amount of open space would improve the appearance of multiple dwellings and achieve a high standard of design as is sought by the council in adopting the DCPMD.

55 The evidence suggests that the proposal before the court with its at-grade car parking is ‘tight’. This tightness of the design is manifest in adverse environmental consequences such as a large unrelieved bulk of building stretching from the front building line to 2m from the rear boundary. It has adverse impacts on the streetscape, outlook from neighbouring properties and harsh unrelieved forms with little softening landscaping.

56 Mr Winnacott in cross-examination agreed that the cost of placing car parking underground is not a matter for consideration under s 79C of the Environmental Planning and Assessment Act 1979. There was no evidence as to the extra cost involved in placing the car parking in a basement and I have given no weight to that aspect.

57 The DCPMD and in particular the underground car parking requirement is a focal point in considering the present application. The evidence has identified adverse environmental impacts flowing from not placing the car parking underground. As a result I consider that the present application would not meet the aims and objectives of the DCPMD and I refuse it for this reason.

Whether or not the minimum rear-building setback should have been 20m

58 The gap of 7m that would result in setting back the rear-building 20m from the front alignment would provide landscaped open space between the front building and the rear. Such a gap would provide visual relief from the proposed continuous building bulk and provide an outlook from neighbouring properties. Its absence is a disadvantage of the present proposal and is another reason for the application not meeting the objectives of the DCPMD.

Other matters

59 The stormwater drainage issue has been resolved in discussion between the experts. The solution is to raise the north western corner courtyards by about 600mm so that gravity stormwater lines can be provided to the street gutter in Burke Avenue. Mr Smith assured me on the site inspection, that raising the level at that corner of the land would not be likely to cause any significant adverse privacy impacts, but would resolve the stormwater issue.

60 Ms Schofield submitted that if the Court were to grant consent to the present application it would set an undesirable precedent for other multiple dwelling developments in the same block. The plan in Exhibit 16 shows the number of 15m lots nearby. I have not given great weight to this submission. However, I have made the DCPMD the focal point of my consideration of the application. The council adopted the DCPMD after public exhibition and it represents the council’s planning efforts in seeking to achieve a higher standard of design for multiple dwellings in Auburn. The efforts of the council in this regard should be supported.

61 For the above reasons, the appeal is dismissed.

My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No 027/03 lodged with the respondent council on 22 January 2003, to demolish an existing dwelling house and to erect seven (7) two-storey dwellings with at grade car parking and open space and to strata subdivide at Lot 1, DP 8546 and Lot B, DP 103601 being No 16 Burke Avenue, Berala is refused consent.

3. The exhibits with the exception of Exhibits E, H, 8, 11, 16 and 19 are returned.

S J Watts

sw