Kilburn and ANOR and Western Australian Planning Commission
[2008] WASAT 131
•9 JUNE 2008
KILBURN & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 131
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 131 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:411/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR J ADDERLEY (SENIOR SESSIONAL MEMBER) | 9/06/08 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Decision of the respondent affirmed | ||
| B | |||
| PDF Version |
| Parties: | DARRYL KILBURN JANETTE ESTELLE KILBURN WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Subdivision City of Nedlands Dual code Residential R10/R20 zone Whether subdivision conforms with local planning scheme provisions Density expectation Amenity and character Residential Design Codes of Western Australia (2002) Variation to lot area Frontage requirements Setbacks Streetscape Precedent for further subdivision Whether subdivision conforms with contemporary state policies Whether local scheme is outdated |
Legislation: | City of Nedlands Town Planning Scheme No 2, cl 5.3.1, cl 5.3.2 Planning and Development Act 2005 (WA), s 138(3) Residential Design Codes of Western Australia (2002), Pt 3, Table 1 |
Case References: | Nil |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent made on 29 October 2007 to refuse subdivision approval of No 1 (Lot 206) Mayfair Street, Mount Claremont into two lots is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : KILBURN & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 131 MEMBER : MR J ADDERLEY (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 9 JUNE 2008 FILE NO/S : DR 411 of 2007 BETWEEN : DARRYL KILBURN
- JANETTE ESTELLE KILBURN
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Subdivision City of Nedlands Dual code Residential R10/R20 zone Whether subdivision conforms with local planning scheme provisions Density expectation Amenity and character Residential Design Codes of Western Australia (2002) Variation to lot area Frontage requirements Setbacks Streetscape Precedent for further subdivision Whether subdivision conforms with contemporary state policies Whether local scheme is outdated
(Page 2)
Legislation:
City of Nedlands Town Planning Scheme No 2, cl 5.3.1, cl 5.3.2
Planning and Development Act 2005 (WA), s 138(3)
Residential Design Codes of Western Australia (2002), Pt 3, Table 1
Result:
Application for review dismissed
Decision of the respondent affirmed
Category: B
Representation:
Counsel:
Applicants : N/A
Respondent : N/A
Solicitors:
Applicants : MGA Town Planners (Town Planners)
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 This is a review of the Western Australian Planning Commission's decision to refuse subdivision of a lot in a "dual coded" residential zone situated in the western margins of Mount Claremont, a well established residential suburb of Perth.
2 The respondent argued that the subdivision should not be approved because the proposed lot sizes were well below that allowed under the lower (R10) density code. The resultant development of the land would exceed the expected density of the immediate street block to the detriment of the amenity and character of the area.
3 The respondent also argued that the proposed subdivision would set an undesirable precedent for increased development of the area, conflicting with the intent of the local planning scheme and long-term planning objectives for the area.
4 The applicants set out arguments to the effect that the proposal substantially complied with the requirements of the local planning scheme and was capable of being allowed by the responsible planning authority.
5 The applicants sought to illustrate that the proposed subdivision was consistent with contemporary planning objectives for increased development density in the area as described in state planning policies.
6 The Tribunal accepted the respondent's argument that the subdivision would result in a higher density of development than was anticipated by the local planning scheme, which would have an unanticipated impact on the amenity and character of the area. There was a potential that subdivision of other similarly situated lots could be expected in the event that this application was allowed.
7 The Tribunal questioned the logic and practicality of permitting subdivision of "dual coded" land, creating lots based on compliance with the higher code lot area standards, and acceptance that those lots would then be subject to lower code development controls on setbacks and frontage requirements. This would seem to contradict the logic and practicality of the codes in terms of the proportionality of a building's footprint to its allotted land area.
8 The Tribunal did not accept the applicants' proposition that the subdivision should be allowed because of its claimed consistency with state planning policies. In this regard, the Tribunal noted that the policy quoted in evidence
(Page 4)
- identified that the appropriate means to achieve objectives for increased development density in strategically appropriate areas should be by mechanisms of scheme review and amendment.
9 The Tribunal concluded that the proposed subdivision was contrary to the interest of orderly and proper planning for the area.
10 The application for review was dismissed.
Introduction
11 This is an application for review of the decision of the Western Australian Planning Commission (respondent or Commission) to refuse subdivision of No 1 (Lot 206) Mayfair Street, Mount Claremont (Lot 206) into two residential lots.
12 The application for subdivision was lodged with the respondent by MGA Town Planners on behalf of Mr and Mrs Kilburn (applicants) on 31 July 2007.
13 Following consultation with relevant agencies, including the City of Nedlands (City or Council), the respondent issued its refusal of the subdivision application on 29 October 2007.
14 The applicants lodged an application for review of the respondent's decision with the State Administrative Tribunal (Tribunal) on 28 November 2007.
The proposed subdivision and its context
15 Lot 206 is a residential lot located in the western margins of Mount Claremont, a well established residential suburb of Perth.
16 The immediate locality is characterised by a regular north-south, east-west grid road pattern. Most lots are about 1000 square metres with an east-west orientation. The area is predominantly developed with single dwellings.
17 Lot 206 is a corner lot with an eastern frontage to Mayfair Street, a north side boundary to Haldane Street and a rear, western boundary to Cottesloe Golf Club (golf course).
18 Lot 206 is rectangular in shape with an area of 1255 square metres. The front and rear boundaries each measure 20.12 metres. The north side boundary measures 62.38 metres whilst the southern boundary, common with adjoining Lot 205, measures 62.42 metres.
(Page 5)
19 A brick and iron residence and a backyard swimming pool are built on Lot 206. These structures would be demolished in order to facilitate subdivision.
20 The proposed subdivision of Lot 206 would divide the property into two almost equal area rectangular portions. Proposed Lot 1 of 619 square metres, at the front, would enjoy frontages to Mayfair Street and Haldane Street. The proposed Lot 2 of 618 square metres, at the rear, would be accessed from its frontage with Haldane Street. A standard 18 square metre truncation would be excised from the corner of Mayfair Street and Haldane Street.
Statutory and policy instruments
21 Lot 206 is zoned Residential R10/R20 under the City of Nedlands Town Planning Scheme No 2 (TPS 2 or Scheme).
22 Clause 5.3.1 of TPS2 provides the following relevant guidance in relation to subdivision and development:
"Notwithstanding the provisions of the Residential Planning Codes and notwithstanding that the Use Class 'Dwelling House Grouped' is designated 'AA' in the Residential zone, the coding designations shown on the Scheme Map shall have the following meanings and effects:
(a) ...
(b) Where an area is designated with an R Code R12.5/R20 or R10/R20 no development other than a single dwelling house complying with R12.5 or R10 requirements (as the case may be) is permitted except that the Council may approve a grouped dwelling development containing a maximum of two dwellings subject to R20 requirements if the following conditions are satisfied:
(i) grouped dwellings do not occur at a greater frequency than one lot in five of all lots within an area bounded by four streets or other natural boundary;
- (ii) grouped dwellings are separated from any other grouped dwellings by not less than two single dwellings in the same street frontage; and
(iii) the setback requirements of the first mentioned R Code designation are observed.
- (c) ...
(d) Recognising that the Western Australian Planning Commission determines subdivision applications, in order to protect the amenity of the dual coded areas (R10/R20, R12.5/R20 & R12.5/R40) Council will only support Survey Strata or Green Title subdivision of land in accordance with the lower coding."
23 Clause 5.3.2 of TPS 2 provides that:
"Nothing in the Residential Planning Codes as they are applied in the Scheme operates to preclude the erection of a dwelling house on a lot which was in existence at the date of coming into operation of the Scheme and which is situated within the Residential zone and is smaller in area or in any dimension than the minimum area of dimension set out in the code for that lot."
24 The Residential Design Codesof Western Australia (2002) (Codes) set out, in Table 1, the relevant site requirements for the R10 and R20 codes as follows:
"
|
|
|
|
Av 1000 |
|
|
Av 500 |
|
25 In Pt 3 of the Codes - Design Elements - the objective of the Housing Density Requirements is described as:
"To ensure that residential development occurs in line with community expectations about its type and density."
(Page 7)
26 The Performance Criteria for Housing Density requires that new development should meet the following criteria:
"3.1.1 Site Area Requirements
Development of dwellings of the type and density indicated by the R Code designated in the Scheme."
"The Commission may approve the creation of a lot of a lesser area and the Commission or a Council may approve a minimum site area of a Grouped Dwelling on a site area less than that specified on Table 1 provided that the proposed variation would meet the following criteria:
• be no more than 5 per cent less in area than that specified on Table 1
• …"
28 Performance Criteria 3.1.3 can be met by Acceptable Development Standard A3 which states that:
"Subject to 3.1.2 only, the following variation (amongst others) to the minimum site areas set out in Column 3 of Table 1 may be made:
ii) in the case of a Single House, the area of a lot approved for subdivision by the Commission."
The respondent's decision
29 In determining this application for subdivision, the respondent took into account the recommendation of the City.
30 The City advised to the effect that TPS 2 only supports group dwelling development in dual coded areas in accordance with cl 5.3.1(b)(i).
31 The City further advised that the opportunity to subdivide has already been utilised by other lots in the area. Lot 206 can therefore only be developed to the Residential R10 standards.
(Page 8)
32 The proposal cannot be supported because the proposed lot sizes of 618 square metres and 619 square metres are smaller than the minimum lot size of 1000 square metres required under the R10 density code.
33 The respondent's decision to refuse the proposed subdivision of Lot 206 was expressed in the following terms:
1) The proposed subdivision does not comply with the Commission's Policy DC 2.2, a provision of Statement of Planning Policy No 1 (Variation No 2), by reason of the proposed subdivision not complying with the minimum and average lot size requirement for the R10 density code as specified in Table 1 of the Codes.
2) The proposed subdivision does not comply with the City's TPS 2 by reason of the proposed lot sizes being below the minimum and average lot size requirement under the R10 coding in the City's TPS 2.
3) Approval to the subdivision would set an undesirable precedent for the further subdivision of other lots of a similar size in this locality which would undermine the objectives and provisions of the City's TPS 2 for land coded R10/20.
34 The respondent provided an advisory note to the applicants explaining that:
1) Although the subject land is zoned Residential R10/20 in the City's TPS 2, the provisions of the Scheme only support survey strata or green title subdivision of land in accordance with the lower coding (R10). The respondent assessed the proposal against the lot size requirements of the R10 coding, and is not prepared to approve the application as it is contrary to the requirements of the City's Scheme.
The respondent's argument
35 The respondent argued that the proposed subdivision of Lot 206 is contrary to the provisions of TPS 2 and would, if approved, undermine the City's long-term planning objectives for the area.
(Page 9)
36 Mr A Cook, a qualified and experienced town planner employed by the Department for Planning and Infrastructure (which provides services to the Commission), gave evidence on behalf of the respondent.
37 Mr Cook drew attention to subclause 5.3.1(b) and subclause 5.3.1(d) of TPS 2. These subclauses constitute the relevant provisions of TPS 2 in relation to this subdivision proposal.
38 Mr Cook contended that in the context of dual coding, the relevant subclauses allowed scope for a limited amount of grouped dwelling developments of a specified frequency and type to occur at the higher density level, while still ensuring that the low density residential character of the area was protected.
39 Mr Cook confirmed that within the street block, the full potential for increased density allowed by TPS 2 had already been achieved by way of approved grouped dwelling developments.
40 In order to protect the amenity of dual coded areas, subclause 5.3.1(d) of TPS 2 states that the Council will only support survey strata or green title subdivision of land in accordance with the lower coding.
41 Mr Cook pointed out that the proposed lot sizes of 618 square metres and 619 square metres are 51% smaller than the average lot size for the street block and would therefore not be in keeping with the character and amenity of the area as required by subclause 5.3.1(d) of TPS 2.
42 Mr Cook informed the Tribunal that the respondent has consistently refused applications for subdivision into green title and survey strata lots in dual coded areas affected by subclause 5.3.1(b) and subclause 5.3.1(d) of TPS 2. A previous application to subdivide Lot 206 into two lots was refused in 1997.
43 The City has been reviewing TPS 2 since 2002. The City has identified areas where increased housing density is appropriate and where detail planning, rezonings and subdivision are supported. Mr Cook advised that the Mayfair Street locality was not included in any area identified as suitable for increased density and that the City's long-term planning objective for the locality was to ensure that the low density residential character would be protected.
44 Mr Cook argued that Performance Criteria 3.1.3 of the Codes should be assessed in relation to subclause 5.3.1(b) of TPS 2. Because the application, in this case, is not for a grouped dwelling, the R20 coding is irrelevant to
(Page 10)
- consideration. The lower, R10 coding is applicable for the purpose of applying the Performance Criteria governing the permissible Variation to the Minimum Site Area Required.
45 The lot areas to be created by the proposed subdivision represent a variation of 29% to the minimum lot size and 38% from the average lot size permissible in R10 coded areas. These variations exceed the maximum variation of 5% allowable under Performance Criteria 3.1.3 of the Codes.
46 Mr Cook drew attention to the provisions of the respondent's Policy DC 2.2 - Residential Subdivision - which also provides, at cl 3.2.3 of the Codes, that site area reduction variations should be no more than 5% from the minimum and average lot sizes specified in the Codes.
47 Mr Cook referred to several other policies of the respondent, namely, Policy DC 1.6 - Planning to Support Transit Use and Transit Oriented Development (DC 1.6), Statement of Planning Policy 1 (SPP 1), Statement of Planning Policy 3 (SPP 3), and the draft Statement of Planning Policy - Network City (draft SPP- Network City).
48 In respect of SPP 1, Mr Cook noted that the primary objective of the Policy is "to provide for fair, orderly, economic and sustainable use of land". In this regard, approval of the proposed subdivision in an area not targeted for higher density residential development would represent an ad hoc approach to development inconsistent with the character of the area and the City's long-term objectives. It would therefore be inconsistent with the primary objective of SPP 1.
49 In respect of SPP 3, the policy encourages "giving priority to infill development in established urban areas, particularly through urban regeneration and intensification of development of underutilised urban land, whilst respecting neighbourhood character". Mr Cook contended that the proposed subdivision would give rise to development inconsistent with the character of the area and would therefore be contrary to the intent of SPP 3.
50 Mr Cook noted that Lot 206 is located within an area identified by the respondent's policy as a transit-oriented precinct, but argued that development potential will be variable and requires a place-based approach to precinct planning. Lot 206 is located on the outer margins of the precinct and is beyond 800 metres from a railway station or bus station. It is not located in or close to an "activity centre" or "activity corridor" identified in draft SPP - Network
(Page 11)
- City as an area suitable for accommodating urban growth. Accordingly, the proposed subdivision cannot be supported in the context of DC 1.6 or draft SPP - Network City.
51 Mr Cook described that development resulting from the proposed subdivision, if allowed, would be markedly discernable as of a higher density than surrounding properties and accordingly would look out of place. The spacious atmosphere of the locality would be reduced, with a detrimental impact on the amenity of surrounding properties.
52 There are 322 lots of similar size to Lot 206 in the locality which could have subdivision potential if the proposed subdivision is granted. Mr Cook pointed out that because the majority of existing lots had a 20 metre frontage, they could be subdivided in a configuration to comply with the minimum 10 metre width frontage required by the Codes for R20 code density.
53 In the circumstances, Mr Cook expressed the opinion that the proposed subdivision would constitute an ad hoc approach to development, inconsistent with the character and amenity of surrounding development, and would set an undesirable precedent undermining the principles of orderly and proper planning.
The applicants' argument
54 The applicants argue that the proposed subdivision is permissible under TPS 2.
55 The proposed lot sizes conform with the requirements of the Codes.
56 The Council is not prevented from approving a single dwelling on the proposed lots.
57 The proposed subdivision conforms with the purpose of the respondent's relevant State policies.
58 The proposed subdivision is consistent with orderly and proper planning.
59 Mr P Goff, a qualified and experienced town planning consultant and principal of MGA Town Planners, provided evidence on behalf of the applicants.
60 Mr Goff drew attention to subclause 5.3.1(d) of TPS 2, which clearly allows latitude to the respondent to approve subdivision in accordance with the R20 Code, albeit that the decision will not be supported by the Council.
(Page 12)
61 Mr Goff stated that according to cl 5.3.2 of TPS 2, nothing prevents the Council from approving a Single House on a lot in the R10/20 area if it is less than 875 square metres in area, or less than 20 metre frontage, if the lot was created prior to the gazettal date of TPS 2. Mr Goff added that TPS 2 does not say anything with respect to lots of similar dimension created after the gazettal date.
62 The authority to allow a Single House on a lot, of an area varied from the minimum site area prescribed by Table 1 of the Codes, can be presumed from the Acceptable Development Standard A3(ii), which responds to the Performance Criteria 3.1.3.
63 Acceptable Development Standard A3(ii) infers that the area of any lot approved for subdivision by the Commission, which may be undersized, should not preclude development for a Single House.
64 Mr Goff concluded, therefore, that the respondent was able to approve the subdivision in accordance with the R20 Code, and in that event, the Council can approve a Single House on the new lots in accordance with the R10 Code.
65 Mr Goff addressed the question of precedent raised by the respondent. The proposition that 322 other similar sized lots may be affected was challenged on the basis that Lot 206 is quite unusual because it is a corner lot with two road frontages and backs onto the open space of the golf course.
66 The majority of the 322 lots referred to have only one street frontage and would most likely have to be subdivided in "battleaxe" form. The resultant form would create lot frontages less than the 20 metres minimum required to comply with the R10 Code. This contrasts with the proposed subdivision, which conforms with the 20 metre frontage requirement.
67 Mr Goff contended that the hypothetical "battleaxe" subdivisions with frontages noncompliant with the requirement of the R10 Code would be incapable of being developed in compliance with TPS 2.
68 It is therefore apparent that any precedent created by the approval of the subdivision would only relate to corner lots where the minimum lot frontage requirement of the R10 Code could be achieved.
(Page 13)
69 Mr Goff added that Lot 206 is also unusual in the context of the locality because it backs onto the open spaces of the golf course.
70 Mr Goff argued that because the development of the proposed lots will have to comply with the R10 Code standards for setbacks and open space, the character of the relevant streets will be unchanged.
71 Mr Goff acknowledged that application of the front setback of 9 metres and the rear setback requirement of 6 metres would result in a building on the rear lot of only 5.12 metres depth. However, Performance Criteria 3.3.1 P1 of the Codes would allow sufficient flexibility in applying a practical setback to overcome this anomaly.
72 Mr Goff referred to the applicants' statement of issues, facts and contentions in regard to the relevance of DC 1.6, SPP 1, SPP 3 and draft SPP - Network City. The thrust of these policies, according to Mr Goff, is that densities in core urban areas of the metropolitan region should increase, particularly where the locality is well serviced with infrastructure.
73 Mr Goff drew attention to DC 1.6, which identified Lot 206 as being located within a "transit-oriented precinct". Such a precinct, according to the policy, should be encouraged to accommodate residential development at a minimum density of R25.
74 TPS 2 is 21-years-old and does not address current planning philosophies. The proposed subdivision is consistent with state planning policies and is able to be approved, despite any possible inconsistencies with the local planning scheme, in accordance with s 138(3) of the Planning and Development Act 2005 (WA).
Analysis
75 The question as to whether the proposed subdivision would constitute orderly and proper planning looms as the principal issue in this application for review.
76 The applicants have argued that the proposed subdivision is consistent with all the relevant statutory town planning instruments and policies, other than a minor departure from the local scheme provisions in respect of the number and type of R20 dwellings that might be expected in the street block.
77 Any increase in housing density will be imperceptible because it would be mitigated by the advantageous location of the subdivision on a corner lot backing onto the golf course. In any event, state planning policies support the
(Page 14)
- notion of higher density development in the area, and should be preferred as the guiding standard rather than the local scheme, which is overdue for review.
78 The respondent has argued that the local scheme requirements are quite clear as to the housing type and density expected within the street block.
79 The respondent has argued that the proposed subdivision exceeds those expectations to an extent that it will alter the character and amenity of the immediate street block because of the actual and perceived increase of housing density that would result.
80 Further, the subdivision, if allowed, would set a precedent whereby many other similar sized lots in the immediate locality could be subdivided, causing a substantial change to the housing density and the character of the area contrary to the intent of the local planning scheme.
81 The applicants have argued that the unique locational characteristics of Lot 206 and the inherent constraints on the subdivision of the majority of similar size lots in the area largely negate the problem of precedent.
82 The Tribunal accepts the applicants' argument that subdivision approval is open to the responsible authority.
83 The Tribunal has difficulty, however, with the applicants' proposition that approval of the subdivision and its resultant development will not result in a change of housing density and character of the locality. Compliance with R10 setbacks will maintain the building alignment along the street, but will not limit the visual impact of an additional building.
84 Acknowledging that only one additional dwelling is anticipated in this case, the Tribunal is concerned that there could be a number of other lots in the locality, particularly corner lots, where similar subdivision and development outcomes could be sought. Accordingly, the potential for a significant precedent could be set which would have the effect of exceeding the anticipated residential density and the physical character of the area.
85 The Tribunal also has difficulty with the proposition that subdivision should be allowed to the effect of creating smaller lots of an area compliant with the R20 Code in an area with an expectation of compliance with the minimum frontage and setback requirements of the R10 Code. The likely obligation to apply a discretionary modification of the
(Page 15)
- rear setback in the case of development resultant from this application is an example of the misfit of the different Code requirements.
86 The Tribunal accepts the respondent's argument that allowance of the subdivision manifestly exceeds the expectations for development in the R10/R20 Coded area under TPS 2.
87 The argument put by the applicants that the subdivision should be allowed because it better reflects contemporary planning objectives for higher density development than does the local planning scheme is rejected for two reasons.
88 Firstly, it is apparent from the expression of the policies, notably cl 4.2.2 of DC 1.6, quoted by the applicants, that the Commission would expect to work with local governments in the development of measures to achieve increased densities. This would occur in the process of reviewing town planning schemes and proposed scheme amendments.
89 It is not suggested that implementation of the policy to establish transit-oriented precincts should be effected by incidental ad hoc subdivision in the absence of an appropriate local planning scheme development control mechanism.
90 Secondly, if the applicants' argument was accepted to the effect that implementation of the transit-oriented precinct should occur by means of subdivision in the absence of appropriate local planning scheme controls, then this application should be rejected, as it would not, in fact, achieve the minimum R25 density aspired to by DC 1.6.
91 Thus, approval of the subdivision as proposed, associated with its precedent possibilities, could well have the effect of compromising the intent of DC 1.6.
92 It is therefore apparent that the proposed subdivision, if allowed, would have the effect of compromising the present intent of the local planning scheme and the co-operative process of undertaking long-term planning for the area.
93 Other than the preceding considerations, the Tribunal is also mindful of the history of rejection of applications for smaller lot sizes in the area and the maintenance of lot sizes consistent with the standards of the R10 Code.
(Page 16)
94 Accordingly, the proposed subdivision is considered to be inconsistent with prevailing planning controls and unjustified on sound town planning grounds, and therefore contrary to the interest of orderly and proper planning of the area.
Conclusion
95 Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to refuse subdivision approval of No 1 (Lot 206) Mayfair Street, Mount Claremont should be dismissed.
Order
1. The application for review is dismissed.
2. The decision of the respondent made on 29 October 2007 to refuse subdivision approval of No 1 (Lot 206) Mayfair Street, Mount Claremont into two lots is affirmed.
I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J ADDERLEY, SENIOR SESSIONAL MEMBER
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