O'Connor S and M v Strathfield MC - [2005] NSWLEC 96

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
O'Connor S & M v Strathfield MC [2005] NSWLEC 96

PARTIES:
APPLICANT
Sean O'Connor & Marie O'Connor
RESPONDENT
Strathfield Municipal Council

FILE NUMBER(S):
11169 of 2004

CORAM:
Hoffman C

KEY ISSUES:
Appeal :- two storey alterations and additions to a single storey Queen Anne/Federation house - heritage conservation area - streetscape - bulk and scale - height - privacy - design - materials - detailing - floor space ratio.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Strathfield Planning Scheme Ordinance
Draft Strathfield Local Environmental Plan 2003
Strathfield Development Control Plan No. 21

DATES OF HEARING: 15/12/2004 and 18/02/2005

EX TEMPORE JUDGMENT DATE:
02/18/2005

LEGAL REPRESENTATIVES:
APPLICANT
Ms B Warry, solicitor
of Abbott Tout
RESPONDENT
Mr T O'Connor, solicitor
of Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

18 February 2005

11169 of 2004 Sean O’Connor & Marie O’Connor v Strathfield Municipal Council
JUDGMENT

1 This was a class 1 appeal, No. 11169 of 2004 between Sean and Marie O’Connor and Strathfield Municipal Council in regard to the deemed refusal of consent to two storey alternations and additions to a single storey, Queen Anne/Federation style house at No. 57 Churchill Avenue, Strathfield.

2 The land rose slightly along its length to Ardittos Lane at the rear. On the other side of the lane were three storey apartments above ground level parking.

3 The site was a slightly larger lot than some others in the street. It had a 20 m frontage and 47.6 m depth and was oriented with the street on the south and the lane at the north.

4 There was to be a two storey garage at the rear with vehicles entering from the laneway. The loft above the garage was ‘rooms in the roof’ style. The roof was at 35 degrees pitch with gables facing north and south.

5 The house had been used as a boarding house for a period and there were old partly demolished single storey flat roof additions at the rear dating from about the 1950s.

6 The proposed two storey extension was at the rear, partly above this old rear extension. The house extension was an attached two storey block behind the original Federation part of the house. The extension had a 15 degrees pitch corrugated iron roof, hipped towards the street and gabled towards the rear. There was a balcony at the upper storey that also created a covered terrace at the ground floor rear giving access to the back yard.

7 Part of the extension was single storey at the ground floor and projected to the east into what had been a driveway from Churchill Avenue. There was a skillion roof over this single storey section and a parapet wall facing the street.

8 The second storey was to contain four bedrooms and a bathroom plus the balcony at the rear. The ground floor was a kitchen, dining and lounge area with a fireplace and a study and a laundry and the covered terrace at the rear. A swim pool was proposed in the backyard.

9 The existing tiled 35 degrees pitched roof of the Federation section was to be replaced with slate and the facades and interiors of this whole section were to be refurbished in the Federation style. The old section would contain the entry, formal lounge, a sitting room and master bedroom and en suite. An attic was to be in the roof of the old section, accessed from the new second storey. A connection was proposed by a hipped roof from the second storey into the rear of the existing roof.

10 The existing uncharacteristic brick front fence was to be replaced with a picket fence typical of the Federation period and the row of conifers along the street boundary were to be removed and a typical Federation garden re-established.

11 Churchill Avenue was a conservation area under the Strathfield Planning Scheme Ordinance and the Draft Strathfield Local Environmental Plan 2003. An extract from the Churchill Avenue precinct statement of heritage significance said:

“Churchill Avenue was originally an unusable section of land due to a water course. It was reclaimed and in 1903 was offered for sale within the railway station estate. Originally called The Avenue it was renamed Churchill Avenue after World War Two. Churchill Avenue is of local significance for its high retention of form, scale and architectural detail. Mature street planning and period-style fences provide a unified streetscape. The housing stock is comprised of Federation and bungalow-styled residences. Representative examples of intact housing can be seen at No.s 50, 54 and 71. Elements that give the precinct its character include Marseille tile and slate roofs, brick construction, single storey, timber detailing and well maintained gardens”.

12 Numbers 42, 50, 54, 71 and 73 Churchill Avenue were heritage items under the statute.

13 The issues in the Appeal were:

Reasons.

Issue 1

Issue 2:

a) the bulk and scale of the proposed works is out of keeping with the other exponents of the conservation area.

b) the manner, shape and form of the proposed works may negatively detract from the significance of the house.

c) the height of the proposed additions may reduce the significance of the house.

e) the proposed works may negatively impact upon the streetscape values contained within the conservation area

f) the materials and finishes selected for the proposed additions may be incompatible with those of the existing house.

g) the proposed alterations to the internal fabric may reduce the interpretive potential of the house.

14 Reasons for Issue 3 was also deleted during the hearing.

15 The on-site hearing was attended by for the Respondent:

Mr O’Connor of Houston, Dearn, O’Connor solicitors,
Mr K Stratton, Senior Development officer for the Council,
Mr P Rappoport, Heritage architect,
Mr F and Mrs C Burriss objectors of No. 78 Churchill Avenue,
Mr E and Mrs A Ashton objectors of No. 59 Churchill Avenue,
Mrs C Curtis objector of No. 61 Churchill Avenue,
Mr J Stanton objector of No. 84 Churchill Avenue,
Ms K Martinez objector of No. 66 Churchill Avenue,
Miss R Miller objector of No. 70 Churchill Avenue,
Mr M and Mrs J Inglis objectors of No. 74 Churchill Avenue,
Ms C Watts objector of No. 80 Churchill Avenue.

16 Attending for the Applicant was:

Mr J Cole of Abbott Tout Solicitors,
Mrs M O’Connor Applicant and
Mr G Patch Heritage architect.

17 The applicant noted that of 108 houses and flats notified of the proposal there was only one formal objection from No. 59 Churchill Avenue on the west side of the proposal. No. 59 had under construction single storey extensions to the rear of its Federation style house.

18 The applicant noted the subject proposal extended to the rear, no further towards the back fence than No. 59 and the privacy of the neighbour had been maintained by the proposal.

19 One letter of support had been received from No. 55 Churchill Avenue, the neighbour on the east of the proposal.

20 The respondent discounted the lack of formal objections since many of the notified persons were in the flats to the north and heritage matters would be of little concern to them. The objectors present at the hearing were all residents of Churchill Avenue, most of whom had not been notified about the proposal.

21 Mrs Curtis at No. 61 said the two storey new section at the rear of the house would appear massive compared to the old part of the house. Foliage would not obscure it from the street, the little windows on the upper storey of the extension did not have the verticality to make them sympathetic to the Federation style, and going two storeys in a one storey conservation area was an unmerited precedent.

22 Mr Burriss of No. 78 Churchill said he had not been notified of the proposal. He had lived there for 26 years. In renovations to his own house council had been very strict that the Federation style be used including materials appropriate to that period. He said the proposal’s two storey section was unacceptable.

23 Mr Stanton of No. 84 Churchill said he had not been notified of the proposal. He had lived there since 1975, others of his family since the 1960s. The strict controls on Churchill Avenue had commenced in the 1950s he believed, when there was pressure to knock down the houses and build flats. That was resisted successfully and avoided the fate of other streets in Strathfield where grand houses were lost. There were some poorly designed alterations and additions to houses in Churchill Avenue before the new controls. However, they were few, and the current quality of the houses and streetscape attested to the success of the strict planning controls. Alterations and additions must be done in a sympathetic way, and he said the proposal was not.

24 Mrs Ashton of No. 59 Churchill said her alterations and additions were one storey at the rear, only a small portion could be seen from the street and once a designated tree and shrubs were planted, even that portion would be screened and only the Federation part of her house and garden would be seen in the streetscape. She presented written objections from 23 of the houses in Churchill Avenue and said that was 80% of the property owners.

25 She noted the plans in exhibit ‘A’ showed the two storey garage in the northeast corner of the lot, the exhibited plans had it in the northwest corner of the block adjacent her backyard. The new position was better for her but it was now near a large tree in No. 55 and she was concerned it may die as a result. The mature trees along Ardittos Lane at the rear boundary formed an important screen between the conservation area and the three storey flats, as well as giving the houses privacy in their backyards from people in the apartments.

26 Mrs Ashton said the subject house merited special attention as it was the home for many years of Professor Hugo Alpin a noted musician and lecturer who also wrote the current music syllabus for New South Wales schools.

27 Mrs Ashton said the second storey was so large it must be three times bigger than other extensions in the street and it must be seen from the street and its roof and proportions and windows were not sympathetic to Federation style. She noted that the photo montages showing screen vegetation to hide the second storey on the west side would be on her property.

28 She had seen the application for No. 57 and the estimate of $400,000 cost of the alterations and additions, including the renovations to the old house and the garage, pool and landscaping. Knowing the cost of her own extensions she had the opinion either the $400,000 was a huge under estimate or the materials and quality of the proposal could not meet the standards required for Federation style.

29 The applicant noted the screen vegetation shown on the montage was a requirement of Mrs Ashton’s consent for her alterations and additions. Mrs Ashton agreed she had not measured the proposal, or any other house extensions in Churchill Avenue, to confirm the assumption of three times bigger.

30 Mrs Inglis had lived at No. 55 Churchill Avenue since 1955. She objected to the proposal as being unsympathetic to and out of character with Federation, and would be seen from several places in the streetscape. She liked the restoration of the original house and the new picket front fence, but said they would not compensate for the large two storey section at the rear. She urged compromise.

31 Mrs Miller of No. 70 opposite the site had lived there since 1981. She had bought due to the house and conservation streetscape. During the period No. 57 was used as a boarding house, she said it had awful amenity impact. She was pleased it would become a family home once again. She was sure the second storey would be plainly seen behind the old house and it would break the character of single storey in the street and encourage others to do the same. When that occurred the streetscape character would be lost over time.

32 She also disliked the skillion roof and parapet wall section of the single storey extension that projected out into the driveway. It just reused the external wall of the unfortunate 1950s extension.

33 She realised the cost of keeping alterations and additions sympathetic to Federation in her own house extension. She had great trouble and expense finding a builder who could do the work with materials and craftsmanship of the period, but it was worth it in the end, she said. She asked rhetorically, why cannot the proposal be designed in the Federation style instead of the way it is.

34 Mrs Watts of No. 80 had bought in 2002 because of the house and the conservation streetscape. She said the rooflines of the extensions to No. 57 were clearly out of character with Federation. They would detract from the loveliness of the old house.

35 Mr Ashton of No. 59 said in applying for his own house extensions council staff made it quite clear that two storeys was unacceptable in the one storey conservation area. He abided by that advice.

36 He said, the Churchill Avenue community was very strong on the conservation issues because there were only a few streets remaining in Strathfield with high quality streetscapes. Most other heritage streets had been ruined by ‘MacMansion’ style new homes, makeovers or alterations and additions. Churchill Avenue was an intact Federation streetscape that should be sensitively conserved, and the proposal was not good enough for that.

37 Mr Inglis of No. 74 said his wife’s family had been here since the 1950s and he had moved here happily because of the house and the streetscape character. He enjoyed the community of Churchill Avenue with its strong ideals of conservation. It was good to see No. 57 become a family home once again and he thought people who wanted to live in Churchill Avenue must appreciate its qualities and ought to build in sympathy.

38 Mr Rappoport was a Heritage architect with 26 years experience. He noted that not all houses in Churchill Avenue were one storey. No. 65 was quite an old extension and it was ‘rooms in the roof’ style but there were no windows facing the street, so the tiled roof read to the passer by, as a high roof of Federation or Californian bungalow proportions above a single storey.

39 No. 75 was also two storey and it was ‘rooms in the roof’ style also but the high roof was original as seen in exhibit ‘15’ before the rooms were put in. Windows were simply inserted into the existing gable ends.

40 A school and church at the west end of the street were two storey or more but it was expected to be larger scale than houses and being at the end of the street it did not impact upon the Federation streetscape character elsewhere. The design style of the school was the first or second quarter of the 1900s and so it was of a period closer to Federation style than say the apartments and high rises visible nearby.

41 Mr Rappoport agreed the applicable Strathfield Development Control Plan No 21 allowed two storey but that was a maximum only depending on all the other requirements of the Development Control Plan. Being in a conservation area activated many essential constraints on development laid out in the Development Control Plan. Part of the predominant character of Churchill Avenue was one storey houses, even the statement of heritage significance of the street enunciated that. He noted that Mr Patch had not dealt with that characteristic in his reports.

42 Asked why it was necessary to design additions in a sympathetic style Mr Rappoport said that the Development Control Plan including its sketches on p 57, illustrated why. Designing in sympathy emphasised the Federation features, designing out of sympathy detracted from them. The illustration on p 57 showed a sympathetic second storey addition to a Federation house. The roofs of Federation were noted for their various features that could be described as playful. It provided scope for creative designs that was not evident in the proposal.

43 It was put to Mr Rappoport that Mr Patch had gone for a design principle of keeping the original house legible by making the extension different. Mr Rappoport said No. 59’s extension did that by physically separating the original house from the extension with just a glass corridor connecting them and by making the extension single storey with a low roof that could be screened from view easily with trees and shrubs.

44 Mr Rappoport said the proposal at No. 57 was directly connected into the existing roof at ground level and at the second storey, and at the roof level so the Federation style was directly connected to an unsympathetic style.

45 Mr Patch saw the design as keeping the old house legible whilst adding a new layer of development. Mr Patch said that the extensions were slab on ground to keep the total wall height down. It had enabled the existing side wall height to be maintained on the ground floor of the extensions.

46 The design put an eyebrow or skirt eaves on the wall to extend the existing eave line of the old house through to the back. That kept the continuity of the old structure he said.

47 This eyebrow or skirt eave covered part of the wall on the second storey so that there was only 1.4 m of new wall between the eyebrow or skirt eave and the main roof of the second storey. That reduced the visible impact of the second storey and was why the second storey windows were small. Added to that, the roof of the second storey was hipped at the street end, and with a pitch of only 15 degrees, it would have low visual impact Mr Patch said.

48 He believed the extension could only be seen from small sections of the street near the site. The connection to the roof of the old house was recessed behind the original roof and he doubted the link would be seen at all from the street. The other houses and the street trees and the garden vegetation would quickly cut out any view of the second storey as one moved away from No. 57.

49 Asked why he did not go for a ‘rooms in the roof’, design in the Federation style he said the client family needed four bedrooms upstairs. He could not achieve adequate room sizes with rooms in the roof and he could not get a corridor through to the proposed first floor balcony at the rear. It would have needed dormer windows in the roof and he did not want to make the roof more complex. If he tried to incorporate part of the existing Federation roof he thought it would have ruined its appearance.

50 Mr Rappoport thought the extension could have been excavated a little to ensure the roof of the extension was down to the eave of the old roof. Mr Patch said the slab on ground construction brought the ground floor living room at the rear down to ground level. To bring the roof of the proposal down to eave level would mean 2 m of excavation, that was unreasonable and would mean steps up from the ground floor to get to the backyard. Also it would mean the Federation proportions of the ground floor western windows could not be retained.

51 It was noted the windows on the second storey on the west and the extension’s windows on the east were not Federation proportions. Mr Patch saw no great issue there. The extension could be read in 50 years time as a 2004 construction while the original house would clearly read as a 1906 construction.

52 Mr Rappoport said cl 41B(b) and cl 59(b), 59(c) and 59(d) of the Strathfield Planning Scheme Ordinance and cls 2.3 and 2.4 of the Strathfield Development Control Plan No. 21 did not give that scope. They exclude the “legibility of different ages” approach to design in conservation areas and in the design of alterations and additions.

53 Mr Rappoport agreed the proposal complied with the numerical requirements of the Statute and the Controls and in fact, the floor space ratio was well below the maximum but he said that did not overcome the need to comply with the performance and design criteria.

54 Mr Patch, did not think the controls meant the old designs had to be repeated, and on total height of the proposed second storey, he said it was 700 mm lower than the Federation roof of No. 59 and only 100 mm higher than No. 55. Mr Patch said that made its height and mass compatible in the streetscape. The parapet to the skillion roof of the east side extension was a detail used in parts of Federation design but not dominant parts of houses. The eave detail with corbelled bricks was also a Federation detail.

55 Mr Rappoport agreed a number of details in the design were positive design features, for example the slate roof, the timber detailing to the old house, the picket front fence. The protection of the tree in No. 55 from the new garage foundations could be conditioned by using pier footings, he said. The position of the extensions at the rear was appropriate and, not extending further back than the neighbours was good because it kept the backyards open to the sky. This was a feature of Federation sub-division and detached houses. Removing the conifers at the street front was good.

56 The negatives were:

The extension being higher than the eave of the old house, the mass that was above eave level detracting from the key feature of Federation being the dominant 35 degrees pitch roof.
The main roof of the second storey further detracting from the Federation roof by being at a 15 degrees pitch and seen against the profile of the 35 degrees older roof as seen in the photo montages in exhibit ‘B’.
The roof material of the second storey was corrugated iron and it also detracted from the style because in Californian bungalow and Federation houses that material was seldom used on main roofs.
The main roofs were usually Marseilles pattern, orange or red terracotta tiles or slate. Corrugated iron was used only on minor skillion roofs at the rear of Federation or Californian bungalow houses and usually only small parts of such roofs could be glimpsed from the street.

57 Mr Rappoport noted that in the walk during the Hearing, along Churchill Avenue, this last aspect could be observed as well as the other main characteristic of the Churchill Avenue Conservation Area that the vast majority of houses were single storey.

58 In coming to a conclusion on this appeal, I had regard to the relevant parts of the specific clauses applicable from the Statute and the Controls. Namely from the Planning Scheme Ordinance:

59 Cl 41B:

a) any proposed buildings will be compatible with other development that is proposed or likely to be carried out in the vicinity and

60 Cl 59C(1):

“A person shall not, in respect of a Heritage Conservation Area:

(e) erect a building on or sub-divide land within the Area except with the consent of Council.

(2) The Council shall not grant a consent referred to in sub-clause 1 unless it is taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the Heritage Conservation Area.

a) the pitch and form of the roof

b) the style, size, proportion and position of the openings for windows and doors and

Strathfield Development Control Plan No. 21,

61 Cl. 2.3 Alterations and additions:

“Objective. To ensure that in areas where one period or type of architecture predominates, alterations and/or additions to a dwelling house or ancillary structure must reflect the main stylistic features of that architecture such as roof pitch, materials, the proportion of windows to walls, setbacks et cetera.

Guidelines. 1. Alterations and additions to existing dwellings or new or altered ancillary structures are to respect the architectural qualities of the existing dwelling and where applicable the adjoining dwellings.

Guidelines 2. The design of the proposed works that could be seen from a street that adjoins the side of those works must take into consideration the principles contained in Appendix ‘B’. Appendix ‘B’ provides examples of sympathetic additions to various housing styles. Whilst not every building style is illustrated in Appendix ‘B’ all applicants must take into consideration the style of the existing dwelling and design changes that reflect that style. The principles contained in Appendix ‘B’ apply to all housing styles.

62 Cl. 2.4 Heritage Items and Heritage Conservation Areas.

“Objectives. a) To preserve and enhance the visual and environmental amenity of all historically significant buildings and areas within the Strathfield Municipality.

b) To ensure that alterations and additions to heritage buildings are compatible in scale, form and character with the building and surrounding area.

Strathfield Planning Scheme Ordinance

a) Demonstrating that consideration has been given to the heritage significance and the conservation of the building work or land to which the application relates and

b) Setting out any steps to be taken to mitigate any impact of the development on the heritage significance of that building work or land and

63 A copy of Appendix ‘B’ for Federation House extensions is reproduced hereunder.

64 It is clear the crux of this dispute and the evidence in the appeal is about the second storey addition at the rear so the decision in this appeal concentrates on that. In that regard Mr Patch’s conclusion on heritage impacts in his report, goes through the details of the design, and then says:

Strathfield Development Control Plan No. 21

65 In his statement of environmental effects Mr Patch says:

“It is considered that the proposal will be legible as a compatible element within the conservation area. This is a matter of the total development proposal being considered in terms of a quid pro quo, a balance between the positive benefits of the proposed works to the portion of the house to be retained and the adaptive works to the rear”.

66 It is this approach to the design that Mr Rappoport disagrees with. In his report in regard to the second storey and Mr Patch’s report he says:

“The statement of heritage impact appears to rely on the presence of the bulk and built form of the block of units directly to the rear across Ardittos Lane as a justification for the proposed upper level. I’m of the opinion that the justification is weak because the bulk of the proposed rear two storey addition is much closer to Churchill Avenue than the four storey block of units located on the other side of Ardittos Lane behind the subject development site and therefore will be seen from the street. Further, the subject proposal constitutes new work within the conservation area whereas the four storey block of flats at the rear does not. The statement that the effect of the proposed new work on the views from the street will have minimal impacts on the ability to understand the nature of the house as originally built and is of a size and presentation that should not give rise to undue impacts from the street is in my view unsubstantiated because it is clear that the additional bulk will cause visual disturbance to the street setting of the house and the new work is not characteristic of the general development within Churchill Avenue precinct conservation area. A statement is required to describe the characteristics of the conservation area but such a description is lacking. It should deal with the issue of minimising impact but it merely relies upon existing development outside the conservation area to justify the new work which is in any case at variance with the essential characteristics of the conservation area”.

67 Mr Rappoport goes on to say:

Planning Scheme Ordinance

The roof over the proposed additional component is to be Colorbond metal sheet roofing at a pitch far shallower than the majority of exponents within the conservation area.

Planning Scheme Ordinance

Development Control Plan No. 21

68 Mr Rappoport also takes account of the future intentions of Council in draft new legislation saying:

Strathfield Draft Local Environmental Plan 2003

a) to nominate those established areas where a predominantly single dwelling detached housing character should be maintained and reinforced and

b) to ensure that all development including alterations and additions is compatible with the scale, density, form, urban design, streetscape and landscape characteristics of the neighbourhood and respects the amenity of residents

69 In summary Mr Rappoport says:

“I am of the opinion that the proposed work is not consistent with the objectives of the Churchill Avenue precinct for the reason that the predominantly single dwelling detached housing character has not been maintained and reinforced. Further it is my opinion that the proposal is not compatible with the scale, form and streetscape of the conservation area and I note that basic conservation principles and standards have not been followed. This is especially manifest in the fact that the new work overpowers the existing dwelling whereas the Burra Charter, the principle guiding document for all conservation work specifically warns against such practice”.

70 In coming to a final decision on this appeal I have recalled the observations during the view of Churchill Avenue and precincts. The street does have the characteristics attributed to it by Mr Rappoport and acknowledged by Mr Patch. The apartment buildings on Ardittos Lane and the high rise apartments at the Strathfield town centre are visible through the considerable number of trees in the street and on the private properties. This setting gives Churchill Avenue an additional character of being an oasis of Queen Anne/Federation style in the midst of late 1900s and early 2000s high density. Using the apartments outside the conservation area to justify a nondescript second storey addition to No. 57 Churchill Avenue is not consistent with the objectives or the controls in the Statute and development control plans.

71 The extension will be visible from Churchill Avenue, Ardittos Lane and adjoining and adjacent properties. The Court does not entirely discount the possibility of another design, in sympathy with the Queen Anne/Federation style being acceptable in a two storey configuration, but that would be up to the skill of the designer and its acceptability to the Strathfield Council. The design, which is the subject of this appeal has been shown to be fatally flawed. Those parts of Mr Rappoport’s evidence referred to in this judgment are accepted as determinative.

72 Therefore the orders of the Court are:

1) The appeal is dismissed.

____________________________

K G Hoffman

Commissioner of the Court

ljr

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O'Connor S and M v Strathfield MC [2005] NSWLEC 96

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CITATION:	O'Connor S & M v Strathfield MC [2005] NSWLEC 96
PARTIES:	APPLICANT Sean O'Connor & Marie O'Connor RESPONDENT Strathfield Municipal Council
FILE NUMBER(S):	11169 of 2004
CORAM:	Hoffman C
KEY ISSUES:	Appeal :- two storey alterations and additions to a single storey Queen Anne/Federation house - heritage conservation area - streetscape - bulk and scale - height - privacy - design - materials - detailing - floor space ratio.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Strathfield Planning Scheme Ordinance Draft Strathfield Local Environmental Plan 2003 Strathfield Development Control Plan No. 21
DATES OF HEARING:	15/12/2004 and 18/02/2005
EX TEMPORE JUDGMENT DATE:	02/18/2005
LEGAL REPRESENTATIVES:	APPLICANT Ms B Warry, solicitor of Abbott Tout RESPONDENT Mr T O'Connor, solicitor of Houston Dearn O'Connor