Rudd R v Gosford City Council - [2004] NSWLEC 476

Land and Environment Court

of New South Wales

CITATION: Rudd R v Gosford City Council [2004] NSWLEC 476

PARTIES:
APPLICANT
Robert Rudd
RESPONDENT
Gosford City Council

FILE NUMBER(S): 10779 of 2003

CORAM: Murrell C

KEY ISSUES:
Development Application :- subdivision of land into two lots
foreshore building line
precedent
impact on adjoining residence
impact on foreshore

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Gosford Planning Scheme Ordinance
Gosford Development Control Plan No. 155
Gosford Local Environment Plan

CASES CITED: Golden v The Minister for Transport Administering the Ports Corporation and Water Ways Management Act;
BP v Campbelltown Council;
Zhang v Canterbury 2001 NSW CA 167

DATES OF HEARING: 26/11/03 - 28/11/03

EX TEMPORE
JUDGMENT DATE : 11/28/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr R R Dawson, solicitor
SOLICITORS
Conditsis & Associates Lawyers
RESPONDENT
Mr M Fraser, barrister
SOLICITORS
P J Donnellan & Company

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10779 of 2003

Murrell C

28 November 2003

Robert Rudd
Applicant

v

Gosford City Council
Respondent

Judgment

1 . This is an appeal under s 97 of The Environmental Planning and Assessment Act against Gosford City Council’s refusal of a development application for the subdivision of land known as 297 Avoca Drive Greenpoint, being lot 51 in DP 858220.

2 . The subject lot is some 2170 m2. The proposal is to subdivide the land into two lots such that there would be a foreshore lot of 860 m2 known as lot 510 and the existing dwelling house would sit on the proposed lot 511 with an area of 877 m2 .

3 . The area is described as one that is of a low residential density and the Brisbane Water is the foreshore that adjoins the lots in the area. On the point of Greenpoint there is an open space zoning and the land and the vegetation is in public ownership. There are also pockets of public ownership of waterfront land several properties to the north of the subject property.

4 . The existing dwelling house was built in 1977 or thereabouts and it has a large setback to the water. It is of a modern design and has architectural merit. The immediate neighbour’s property is that of Mr and Mrs Young and they are immediately to the south of the subject land and their dwelling house was constructed approximately 1987 and it has a 10 m setback from the foreshore.

5 . The area is one that can be described as very pleasant with not only water views but water facilities in terms of many properties sharing or having their own jetties and wharves within the area. The original subdivision pattern of Avoca Drive was of very large lots. It could be seen from the aerial photograph and from the view that many of these lots have subsequently been re-subdivided with a number of lots created on the Avoca Drive side of the subject area.

6 . The subject land is covered by the Gosford Planning Scheme Ordinance and is zoned 2A. The proposed subdivision is permissible in the zone. The Gosford Planning Scheme Ordinance contains a minimum allotment size of 550 m2, however, there are development control plans which provide for greater guidelines in terms of minimum lot size and subdivision. There is a draft local environmental plan and it is proposed that the minimum allotment size be increased to 550 m2.

7 . The Gosford Planning Scheme also contains cl 37 that allows for foreshore building lines to be fixed by council by way of resolution. It was submitted that this particular clause is not relevant as council has not specifically resolved in terms of cl 37 and it was agreed between the parties that a SEPP 1 objection is not required in terms of the foreshore building line.

8 . The development control plan relating to subdivision is that of 112 and there were matters or provisions contained within this plan that are in issue in the proceedings. The other relevant controls are containedin the scenic quality DCP No. 89. It is noted, and I have considered the provisions of the draft character statements, at this stage they have not been incorporated into a final plan but nonetheless I have considered the documentation submitted to the Court. The foreshore building line is contained in DCP No. 155.

9 . On behalf of the council evidence was given to the Court by Mr Singh who is a senior statutory planner with the Gosford Council and has been so for some 15 years. He is of the view that the land is not large enough for the proposed subdivision because of the sensitive location of the site being on the water front and because of its high visibility. He also considers that the proposed subdivision would detract from the existing dwelling house on the subject land.

10 . He was satisfied with the concept plan of the dwelling house submitted by the applicant that the views of the adjoining neighbours, Mr and Mrs Young, would be reasonably maintained and that it does support view sharing in terms of a planning principle.

11 . He, on cross-examination, indicated that he was concerned about what may be built on the subject land and that there would be reasonable expectations of future owners that may purchase such an allotment of land in a prestige area. He is concerned about any future development of the land that it would fit and integrate with the existing landscape and preserve the scenic quality.

12 . Mr and Mrs Young. Evidence was heard from Mr and Mrs Young on the site inspection that was carried out with the parties on the first morning of the case. Their concerns relate to the fact that their view currently enjoyed over the Rudd land, this foreshore section of land where the proposed dwelling would be located, would be interrupted by a dwelling house being located on this area land which in their opinion should be maintained as an open area. They also expressed concern about the rules or regulations of council not being complied with and in that regard they considered that the subject proposal was inappropriate. It is noted in council’s bundle that they also made a written objection to the subject development and their major concerns with the proposal include: the building alignment is not in line with Gosford Council’s regulation; it is below the minimum allotment size; it would devalue the price of their property; excavation adjacent to their land; and the aesthetics of the coastline. They also indicated that the setback of 6 m on a single storey dwelling is currently council’s regulations. The dwelling in question is planned as a tri-level home and council regulations require a minimum of 10 m setback.

13 . The Court had the opportunity of viewing the proposed site and also the opportunity of seeing what the impact would be on the views and outlook from the Young’s residence. I also had the benefit of the concept plan provided by the applicant to be able to ascertain the view loss that may occur.

14 . There were other objections in terms of the use of the right of way not being wide enough and the maintenance of the right of way. While these were not matters pressed by the council, suffice to say that the driveway is one that is of adequate width and that the increased traffic in the Court’s assessment also would not warrant refusal of the application.

15 . Mr Connelly, a consultant town planner, gave evidence on behalf of the applicant. He was of the opinion that the proposed land was capable of subdivision and that there would be nil or minimal impact. He considered that a dwelling house could be erected on the subject land as shown in the concept plan and the impact on the adjoining residents, that is in particular the Young’s property, is such that it would not warrant refusal of the applicant and in his opinion it was an acceptable and satisfactory proposal.

16 . In council’s refusal of 18 July 2002, council raised as reasons for refusal non compliance with its residential DCP and the foreshore building line. It also raised the issue that the proposal does not provide for maximum opportunities for future building design having regard to privacy and amenity considerations and it did not consider it to be a proper and orderly development of the land.

17 . The issues in the proceedings were particularised and reflect the reasons for council’s refusal although the particulars do provide the actual provisions of the instruments which the council relies upon in terms of the proposed development not being satisfactory.

18 . In summary, the issue with the residential subdivision DCP is that it would require a 900 m minimum size whereas the proposed development is some 4½ % or 40 m2 short of the minimum identified in the DCP. The other issues relate to the foreshore building line and the public interest and certainty and expectations of adjoining persons.

19 . The Court has in the last three days been able to consider at length the proposal before it. It has had the assistance of the submissions of both the applicant and the respondent and all the evidence to the Court. The provisions of the Development Control Plan No. 155 in terms of the foreshore building line are also relevent. First of all, the objectives of this development control plan are:

22 . As I stated there was considerable discussion about the foreshore building line. At the end of the day the Court was presented with numerous options. Council was of the opinion that the foreshore building line should be set at the point drawn between the two adjoining properties, that is the dwellings erected on those properties. Council conceded that the original line depicted on Exhibit 3 could in fact be varied such that it would create a greater area for a building but nonetheless the council maintains its position that the land is not suitable for the subdivision.

23 . Mr Connelly on one hand looked at other alternatives. I was not persuaded that one could look at the lots further afield to arrive at some academic 4 m building line that is dismissed by the Court.

24 . Secondary legislation which would be an LEP, must be interpreted in a commonsense way. Similarly DCPs and other policies must also be interpreted this way. In hindsight we all could have the advantage of writing clauses more clearly and with greater precision. The role of the Court in this matter is to assess what is a commonsense interpretation for this foreshore building line.

25 . The foreshore building line in the Court’s assessment, taking a commonsense look at the various provisions, is one that must be 6 m as a minimum from the foreshore and where a building of two storeys is proposed it must be set back some 10 m. The reason why we have planning schemes, development control plans, is to have a strategic look at planning for a locality. It would not make sense to merely look at where buildings encroach to allow them to come forward of such a line, this would not be a strategic approach to planning. There was some difficulty about whether one just takes the immediately adjoining buildings to determine the setback. However, in terms of the controls and a holistic reading of the DCP and looking at the objectives for setbacks the purpose is clearly to standardise building lines and to provide a consistent view and openness in terms of the land and water interface.

26 . I have interpreted the foreshore building line to a minimum of 6m, or 10 m in the case of two storey buildings, and even if I am wrong I must also assess the merits of this application before me. Also of importance in the assessment as to whether the subdivision proposed is acceptable the Court must turn its mind to what are the reasonable expectations of building a dwelling on the subject land and the application of the foreshore building line is important.

27 . I have determined that in terms of the objectives of the foreshore building line that in this location it is satisfactory to be 6 m for a single storey and 10 m for a two storey and in terms of the proposed development that is currently before the Court in terms of the concept dwelling I am satisfied that on a merits assessment of all the factors that I must have regard to that the proposed subdivision is satisfactory. However, I do say that the proposed subdivision is only satisfactory having regard to the building envelope that must be imposed on the proposed subdivision to provide certainty in the planning process. And the reason why we have rules and regulations is that it is to provide certainty in the planning process. The objectives or the underlying objectives of the foreshore building line must be met and I am satisfied that the objectives are met by the 6 and 10 m building line in the context of this site having regard to all the circumstances.

28 . The subject site being a waterfront property is clearly more sensitive than many sites within the local government area but in the Court’s assessment the site can accommodate an additional dwelling house as demonstrated by the concept dwelling house proposed. Yes, a dwelling house will be visible and in parts its driveway will be visible but in my assessment, even having regard to the sensitive nature of the site and the setbacks proposed and the different relative levels between the existing dwelling house and that of the Young residents I am satisfied that a dwelling could be appropriately sited such that it would not have unreasonable impacts. In saying this I consider: it would not have unreasonable impacts in terms of the Young’s property; it would not have unreasonable impacts in terms of the existing dwelling house; and it would not have unreasonable impacts on the foreshore. Clearly, the foreshore viewed from the water way is a most important consideration in the Court’s assessment and I am satisfied that the subject site could accommodate a dwelling house in a sensitive manner.

29 . The proposed envelope control is to ensure that the bulk of the building is such that it would be appropriate for the subject site. The council would be the determining authority in terms of a future dwelling on the subject land as development consent is required. The applicant proffered a deferred commencement for the subdivision in terms of constraining the future building to relative levels which would be 10.4 and 9.1 respectively for different parts of the dwelling and containing any future dwelling within the footprint of what is shown for the concept dwelling.

30 . It is not the role of the Court to specifically require adherence to the concept plan because a future dwelling must go through the proper assessment process in terms of the suite of controls that council has for dwelling houses and the appeal before the Court is for subdivision.

31 . In terms of a merits assessment under s 79C of the Act I am satisfied that the site is suitable for the proposed subdivision subject to the deferred commencement.

32 . From these proceedings it became clear that the provisions of the foreshore building line, that is of the DCP, need to be clearly written and to avoid ambiguity in the future it may be appropriate, given that council is currently in the process of a draft instrument, that a foreshore building line be adopted in its LEP to provide certainty in the planning process.

33 . In my consideration of the subject development application I have carefully considered the views of the Young’s and in this regard for certainty in the planning process a deferred commencement is appropriate. It appears from the Young’s letter, that they had an unreasonable expectation that no dwelling could be erected in the extensive setback area of the subject land and that they would always be able to look over an open space- parkland area from the common side boundary and it is noted this is not the only view and in this regard I agree with Mr Singh it certainly satisfies the concept of view sharing. The Young’s enjoy extensive views to the west and south west and they will still enjoy views of the water to the north over the subject site with a dwelling set at the RL proposed. In my assessment the proposal is consistent with the concept of view sharing and it does not unreasonably interfere with the amenity of the Young’s property.

Goldin v The Minister for Transport Administering the Ports Corporation and Water Ways Management Act 2002 NSW LEC 75.

35 . And the decision of the Court in the matter of BP v Campbelltown Council held that it is a valid consideration when the risk of establishing a precedent is readily invocable by prospective developers of other land in the vicinity.

36 . The issue of precedent whether in fact the development in itself is objectionable or on a cumulative basis is a matter for the Court to take into consideration and in this application I have considered the issue of precedent but it is not one that would warrant refusal of this application because the proposal is one that will be satisfactory in terms of providing an appropriate setback to the waterfront and a dwelling that can be accommodated in the landscape and as such it will not create an undesirable precedent because of the merits of the application.

37 . The issue of the amenity impact on the existing residence of architectural merit on the subject land is a matter for consideration. In my assessment while the setting of the existing dwelling will be affected by the extensive parkland like lawns to the water not being retained this would not warrant refusal of the application. I have also given careful consideration to the views enjoyed from the existing residence and whilst there will be some impact on the view from the lounge room area the views to the north will still clearly be obtained from the subject property and I am satisfied that the amenity of the existing dwelling is one that is reasonably maintained and would not warrant refusal of the application.

38 . However I do consider that it is appropriate for an 88 instrument to be placed over the proposed lot with the existing dwelling so that there is no reduction in the soft landscape or permeable area of that dwelling and in that regard the experts provided an assessment to the Court of the areas of soft and impermeable surfaces.

39 . In terms of the Development Control Plans I have given careful consideration to these. The Development Control Plan in terms of Scenic Quality No. 89 does provide for a description of the area and for the Greenpoint /Saratoga area the maintenance of the diversity of landscapes within the area is important in terms of scenic conservation issues. And the absorption capacity is seen as moderate to high and the visual sensitivity is generally low but higher on areas of the waterfront. It is also noted that there are a number of development objectives including the opportunity for increases in density not subject to visibility constraints or other physical constraints and visually constrained land does include waterfront areas and in that regard I have given due consideration to the proposal before me and in particular I am conscious of the fact this is a more sensitive site given its visibility from the foreshore. All waterfront land is sensitive in that regard, however, I am satisfied the proposal is appropriate when assessed under this DCP.

40 . The subject lot is not on the promontory of Greenpoint, and it has the back drop when viewed from the water to the north of Greenpoint behind it. It also has the row of Casuarina trees on the waterfront of the property that will provide some filtering to the proposed waterfront lot. And I am advised that council’s TPO does in fact protect the stand of Casuarinas found on the site.

41 . As I stated, I have considered the relevant DCPs and guidelines. I have given them real genuine and proper consideration in terms of the Court of Appeal Judgment of Zhang v Canterbury 2001 NSW CA 167 and they have been a focal point in my consideration, as discussed above.

42 . On balance I am satisfied that the proposed subdivision development warrants approval. However, relative heights and a building envelope should be imposed on the proposed waterfront lot for the reasons of not only being viewed from: the waterway but the Young’s property; and the existing dwelling house on the subject land.

43 . With respect to the conditions, the conditions are as generally agreed to between the parties in Ex. 7 with the additional condition of a deferred commencement, such that a future dwelling house on the waterfront lot shall observe: a ten metre setback/ building line from the water, with 6 m for decks; a maximum roof height of 9.1 metres adjacent to the dwelling located immediately to the south and an overall maximum roof height of 10.4 m; and for the building not to exceed the footprint of the dwelling shown in the concept drawing at Exhibit ‘C’.

44 . As I stated there will also be a condition for the proposed lot containing the existing dwelling to be the subject of an 88(B) instrument to retain the soft landscaping area. And an 88(B) instrument for the waterfront is to contain the RLs as outlined for the deferred commencement condition.

Environmental Planning and Assessment Act

Conditions of development consent

Annexure A

Robert Rudd -v- Gosford City Council

Development Application No 13024/2002 – Proposed Subdivision of Lot 51 DP 858220 No 297 Avoca Drive Green Point into two (2) allotments

PART A – Deferred Commencement

Pursuant to the provisions of section 80(3) of the Environmental Planning and Assessment Act, Part B of this consent does not become operational until the Council has granted consent to a dwelling house on proposed lot 510 that satisfies the following criteria:

A minimum 10m setback to the face of the wall of the dwelling from the mean high water mark with Brisbane Water;

A minimum 6m setback for ancillary structures, including any deck areas, from the mean high water mark;

A maximum roof height of RL 9.1 m AHD adjacent to the deck of the dwelling house located immediately to the south;

A maximum roof height of RL 10.4 AHD adjacent to proposed lot 511 (the existing dwelling house on the subject land); and

The dwelling house shall be contained wholly within the footprint of the dwelling shown on the concept plan known as exhibit ‘C’ in the proceedings.

PART B –When the above condition in Part A has been satisfied subdivision of the subject land may take place in accordance with the following conditions:

1 Any clearing of land, excavation, and/or earthworks, building works, and the delivery of building materials is to be carried out between the following hours of work.

2 Development being generally in accordance with plan(s) unnumbered, dated 10 October 2003, 1 sheet, submitted by Robert Rudd, as amended in red, or where modified by any conditions of this consent.

3 All trees affected by the Tree Preservation Order shall be retained unless identified on the approved development plan to be removed and those to be removed be replaced by native species at a 2:1 ratio in suitable locations. Trees are not to be located within a 400mm horizontal distance from an authority’s services.

4 All services associated with the existing dwelling are to be located wholly within the proposed new allotment containing that dwelling or appropriate easements created over the existing services. A Compliance Certificate shall be submitted with the Subdivision Certificate.

5 A Subdivision Certificate being issued for the subdivision prior to the registration of the final plan of subdivision and Section 88B Instrument.

Advice

6 A Construction Certificate for subdivision works being issued prior to the commencement of any work. All subdivision work is to be designed by a suitably qualified person, in accordance with Council’s Drafting and Design of Stormwater Drainage Works and Roadworks Specification, Code of Practice for Erosion and Sedimentation Control and Civil Construction Specification.

Any work that involves the disturbance of nearby properties must be consented to in writing by the nearby owners(s) prior to the issue of a Construction Certificate.

Advice

An engineering plan approval fee shall accompany application to Council for a Construction Certificate. The amount of this fee can be obtained from Council’s Information Services. All work is to be carried out in accordance with the Occupational Health and Safety Act.

7 Satisfactory arrangements are to be made for the provision of water and sewer services to the land. A copy of the Certificate of Compliance under Section 307 of the Water Management Act 2000 is to be obtained prior to the issue of a Subdivision Certificate. Contributions may be applicable to the Section 307 Certificate.

Advice

Developers are urged to make early application for a Section 307 certificate. For a copy of the application form ‘Application For Certificate Under Section 305’ contact Customer Service on (02) 4325 8200 or visit Councils web site to download a form from the Water & Sewerage forms index.

8 The connection of all existing buildings and structures to the sewer and stormwater systems. A Compliance Certificate shall be submitted prior to the issue of a Subdivision Certificate.

9 The creation of an easement to drain water 1.5m wide as shown on the approved plan.

10 The creation of a right of access and an easement for services as shown on the approved plans.

11 The demolition of all structures located across any proposed new boundaries and the resultant material being removed from site. A Compliance Certificate shall be submitted prior to the issue of a Subdivision Certificate.

12 The creation of a Restriction on Use to ensure that no easement(s) is released, varied or modified without the consent of Gosford City Council.

13 Construction of the following works in accordance with Council’s Civil Construction Specification, Specification for the Drafting and Design of Stormwater Drainage Works and Roadworks and Code of Practice for Erosion and Sedimentation Control. The works shall not have an adverse impact upon nearby properties and shall comply with WorkCover Authority requirements. Compliance Certificates for each hold point (notices) identified in Section 1.05 of the Specification together with two (2) copies of a work-as-executed plan shall be submitted with the Subdivision Certificate.

a Concrete accessways comprising a minimum 3.0m full width concrete pavement, 150mm integral kerb on the low side, 3% reverse crossfall, drainage (including lot drainage) and passing bay(s) shown on the approved plan within all rights of accesses or access handles. The construction shall not impede upon the existing Right-of-Footway.
b Interallotment drainage and the creation of a suitable easement where stormwater from individual allotments cannot be discharged directly into the street drainage system.
c Roadside furniture and safety devices including fencing, signage, guide posts, chevrons, directional arrows and guard rail in accordance with RTA and Australian Standards.
d Services conduits (including draw wire) for Power and Phone, within the access corridor in accordance with the relevant authorities specifications and requirements.

14 Erosion and siltation control measures shall be undertaken in respect to all civil works and are to be constructed in accordance with Council’s Code of Practice for Erosion and Sedimentation Control and the Protection of the Environment Operations Act, 1997. An erosion and sedimentation control plan (ESC) shall be approved by Council prior to the issue of a Construction Certificate. All disturbed areas to be fully established with vegetation prior to the issue of the Subdivision Certificate.

WARNING

The applicant shall be held responsible for any breaches of the Protection of the Environment Operations Act, 1997. Failure to implement or maintain appropriate erosion/sediment control measures is a breach of Section 120 of the Protection of the Environment Operations Act, 1997. Such a breach is liable for a $750 on-the-spot fine for an individual or $1,500 for a Company. Applicant(s) and Builder(s) are advised that spot checks of Erosion and Sedimentation Control measures may occur and fines for breaches imposed.

15 All stormwater work to be carried out shall be approved by Council under the Local Government Act. Engineering plans for the work are to be prepared and designed by a suitably qualified person in accordance with Council’s Civil Construction Specifications, Specification for the Drafting and Design of Stormwater Drainage Works and Roadworks and Code of Practice for Erosion and Sedimentation Control. The plans are to be approved by Council prior to the issuing of a Construction Certificate required by this consent.

Advice

A fee for the approval of engineering plans shall apply. The amount of this fee can be obtained from Council’s Information Services. All work is to be carried out in accordance with the Occupational Health and Safety Act.

16 All proposed retaining walls, if greater than one (1) metre in height, are to be designed by a practising Civil/Structural engineer.

At the completion of construction a Compliance Certificate shall be submitted prior to the issue of a Subdivision Certificate. The Engineer shall certify that the wall as built has been constructed in accordance with Construction Certificate, accepted practice, and that the structure is stable.

17 Arrangements being made with Energy Australia, Australian Gas Light Company and Telstra for the supply of services concurrent with the engineering work. Arrangements are to include relocation of existing mains and services and dedication of easements for mains and services. A letter of clearance from, each relevant authority is to accompany the Subdivision Certificate, except a letter of clearance will not be required from Energy Australia for Dual Occupancy and two (2) lot Subdivisions.

18 Approval from the Department of Infrastructure, Planning and Natural Resources [previously DLWC] is required, prior to release of the Construction Certificate.

19 An Acid Sulphate Soil Investigation and Management Plan shall be undertaken prior to the commencement of works on the subject site. These plans shall be completed in accordance with 'Acid Sulphate Soils Manual - Acid Sulphate Soil Advisory Committee 1998'. Details being submitted with the Construction Certificate.

20 A Stormwater and Nutrient Control Management Plan pursuant with Council's Policy E0.09 Nutrient Control for Development and Council's Best Practice Guidelines Nutrient Control shall be submitted and approved by Council prior to the release of the Construction Certificate. Pursuant with Development Control Plan 165 Water Cycle Management, a water tank shall be installed on the proposed dwelling as part of this plan. Details being submitted with the Construction Certificate.

21 The amount of soft landscaping and permeable areas for proposed lot 511 shall not be reduced in any future development.

22 A section 88 instrument is to be placed on the title of the respective lots in the subdivision to give effect to: the dwelling house criteria on lot 510 as contained in Part A; and the provisions of condition 21 above.

_________________________

ljr

CITATION:	Rudd R v Gosford City Council [2004] NSWLEC 476
PARTIES:	APPLICANT Robert Rudd RESPONDENT Gosford City Council
FILE NUMBER(S):	10779 of 2003
CORAM:	Murrell C
KEY ISSUES:	Development Application :- subdivision of land into two lots foreshore building line precedent impact on adjoining residence impact on foreshore
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Gosford Planning Scheme Ordinance Gosford Development Control Plan No. 155 Gosford Local Environment Plan
CASES CITED:	Golden v The Minister for Transport Administering the Ports Corporation and Water Ways Management Act; BP v Campbelltown Council; Zhang v Canterbury 2001 NSW CA 167
DATES OF HEARING:	26/11/03 - 28/11/03
EX TEMPORE JUDGMENT DATE :	11/28/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr R R Dawson, solicitor SOLICITORS Conditsis & Associates Lawyers RESPONDENT Mr M Fraser, barrister SOLICITORS P J Donnellan & Company