Ryan v Ku-ring-gai Council

[2015] NSWLEC 1168

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ryan and Anor v Ku-ring-gai Council [2015] NSWLEC 1168
Hearing dates:	14 May 2015
Decision date:	20 May 2015
Jurisdiction:	Class 1
Before:	Moore SC and Adam AC
Decision:	For directions see (67).
Catchwords:	DEVELOPMENT APPLICATION: proposed piping of streamway; controls and policies concerning waterway enhancement; policy against piping; residential amenity; need to balance outcomes
Legislation Cited:	Ku-ring-gai Planning Scheme Ordinance Ku-ring-gai Local Environmental Plan 2015
Category:	Principal judgment
Parties:	Felicity Ryan (First Applicant) Rodger Ryan (Second Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel Mr S Kondilios, solicitor (Applicants) Mr K Webber, solicitor (Respondent) Solicitors Hall & Wilcox Lawyers (Applicants) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	10867 of 2014

Judgment

Introduction

1. COMMISSIONERS: For descriptive purposes in these proceedings, it is appropriate to regard Wallace Parade at Lindfield as running north/south. The Ryan's property (the site) is located on the western, lower side of Wallace Parade. The site slopes from east to west and, in the rear open space behind the house, slopes toward the south-western corner. A streamway (whether ephemeral or permanent being irrelevant in these proceedings) enters the site at approximately the midpoint of its northern boundary and flows, in a slightly curved path, to the south-western corner of the site. This streamway is one of those that eventually contributes to and becomes part of Blue Gum Creek. However, on the site it has no specified name.

2. The streamway drains a modest but nonetheless significant catchment upstream from the site and is, until almost immediately after it enters the site, contained within a piping system (the details of which are also not relevant).

3. However, having entered the site, the streamway is an open one which flows across a gentle slope for approximately half the length of its path within the site and then slopes more steeply as its path progresses to the south-western corner of the site.

4. The streamway divides off a section of the rear yard - with it being appropriate to make three observations concerning the element of the yard in the north-western corner that is divided from the remainder by the streamway:

• First, this portion of the yard is comparatively flat and generally at grade with the portion of the yard adjacent to it across the streamway.

• Second, there is a large, healthy Turpentine growing on the site near the rear boundary within this portion. Immediately adjacent to the Turpentine is a Pittosporum. Both these tree species are elements of the suite of trees and other plants in the Sydney Turpentine Ironbark Forest Endangered Ecological Community.

• Third, access to the children's cubby house erected on this portion of the site (to the north of the two trees and close to the north-western corner of the site) is obtained by a wooden bridge that has been erected across the streamway adjacent to and very slightly upstream of the point where there is a significant downward change of gradient within the streamway and of its western bank.

5. There is a deal of vegetation in the streamway or within its immediate riparian zone. To our observation, that vegetation comprised primarily Morning Glory and Wandering Jew, both commonly regarded as weed species. There is also a coral tree on the eastern bank near the boundary with the neighbouring property to the south and there were several other pieces of spindly vegetation that appeared to be (but cannot certainly be identified as) privet plants.

6. We also observed that, in addition to the wooden bridge providing access to the flatter north-western portion of the site located across the streamway, there is a somewhat dilapidated two rail wooden fence running along the eastern side of the streamway.

7. The western boundary of the site is fenced with a pipe and link mesh fence and, from the comparatively flat portion in the north-western element of the site earlier described, the bank on the far side of the streamway also falls away along this fence line.

8. We were able to observe, over the paling fence between the site and the property to its south, that, after flowing under the fence and pass an informal gross pollutant trap installed by the Ryans (being a section of pool fencing rotated by 90° and held in place by the paling fence above), the streamway became contained within a formalised channel with the western side of the channel being a low brick retaining wall and the floor of the channel appearing to be of concrete. We were unable to observe the precise nature of the eastern structure of this channel but it appeared to be part of the supporting structure for a swimming pool on the neighbouring property.

The site inspection

9. We inspected the site in the company of the legal representatives of the parties; the ecological and town planning experts advising each of the parties and an environmental engineer (Mr Whyte) employed by the Ku-ring-gai Council (the Council); and Mr Ryan, one of the applicants.

10. We inspected the streamway and made the more detailed observations concerning the streamway and the site that we have earlier set out. Whilst we were on the site, we also heard evidence given, informally, by various of the experts - with this procedure being adopted with the agreement of the legal representatives as an efficient way of obtaining a proper understanding of each party's position on matters that remain in dispute.

11. We also walked along Wallace Parade to the south, turning west along Bent Street, in order to observe, down an access handle to a battleaxe development, the location where the streamway exited its upstream formalised channel and subsequent piping. Mr Glendinning, the Ryans’ town planner, described the streamway downstream from this driveway as being open, natural and well-maintained. The Council’s experts did not disagree with this description.

The proposal

12. The Ryans have applied to the Council for development consent to continue the piping of the streamway from the end of the pipe where it presently terminates shortly after entering the site with that piping being proposed to continue generally along the present alignment of the streamway until it reaches a point some 1.6 m from the boundary with the property to the south. At this point, there would be a stone headwall and flow disrupting stone structure.

13. Although the landscaping plan (Exhibit C) did not show any planting on the headwall and adjacent stone structures, sheet 5 of the development application plans (these plans being Exhibit A) showed sedge plantings at this location and Mr Kondilios, solicitor for the Ryans, accepted that such planting was appropriate and should be required.

14. The development application (Development Application No 0163/14) was lodged with the Council on 12 May 2014 and was determined by refusal on 15 August 2014. This appeal against the Council's refusal was commenced on 16 October 2014.

Relevant Council planning and policy provisions

15. At the time of lodgement of the Ryans’ development application, the relevant local environmental plan was the Ku-ring-gai Planning Scheme Ordinance (the KPSO). Extracts of this document formed part of the Council's tender bundle (Exhibit 1). The particular provisions of this environmental planning instrument to which we were taken by Mr Webber, solicitor for the Council, as being those relevant in the Council’s case were in cll 25D and 61M of the KPSO. The relevant portions are extracted below:

25D Consideration of residential zone objectives and impact on heritage

(1) Heads of consideration for consent authority

Consent must not be granted to any development of land to which this Part applies unless the consent authority has had regard to:

(a) the objectives for residential zones set out in this clause,

(2) Objectives for residential zones

The objectives for residential zones are as follows:

(i) to encourage the protection and enhancement of open watercourses,

61M Riparian land and waterways

(1) The objective of this clause is:

(a) to protect and improve the following:

(i) ………….,

(ii) the stability of the bed and banks of waterways,

(iii) aquatic and riparian species, communities, populations and habitats,

(iv) ecological processes within waterways and riparian lands,

(v) scenic and cultural heritage values of waterways and riparian lands, and

(b) where practicable, to provide for the rehabilitation of existing piped or channelised waterways to a near natural state.

(3) Before determining a development application for development on land to which this clause applies, the Council must consider:

(a) ………, and

(b) any opportunities for rehabilitation or re-creation of the waterway and riparian land

16. Since the lodgement of the development application, a new environmental planning instrument, Ku-ring-gai Local Environmental Plan 2015 (the 2015 LEP), has coming into effect. This local environmental plan, based on the standard instrument template, incorporates the usual savings provision in cl 1.8A applying to applications made but not finally determined (whether by the Council or the Court in proceedings such as these). It was, however, the Council's position that the 2015 LEP should be regarded as imminent and certain and, therefore, given appropriate weight in these proceedings.

17. Mr Webber took us to the provisions of the 2015 LEP that are said to be relevant by the Council. These provisions are in the following terms:

6.4 Riparian land and adjoining waterways

(1) The objectives of this clause are as follows:

(a) to protect or improve:

(i) ……, and

(ii) the stability of the bed and banks of waterways, and

(iii) aquatic and riparian species, communities, populations and habitats, and

(iv) ……, and

(v) ……,

(b) where practicable, to provide for the rehabilitation of existing piped or channelised waterways to a near natural state.

18. It is appropriate to note now that there is a difference between the preambular heading to the objectives in cl 61M(1)(a) of the KPSO and those to cl 6.4(1)(a) of the 2015 LEP - in that the words “protect and improve” appear in the KPSO whilst those in the 2015 LEP are “protect or improve”. Although the fact that the provision in the 2015 LEP is in the disjunctive might be regarded as more permissive than that in the KPSO (the KPSO’s provision being in the conjunctive), we do not consider that anything arises from this. We have reached this conclusion as, assuming that the conjunctive is more restrictive and should be adopted for the purposes of these proceedings, nonetheless that articulation does not pose an insurmountable barrier, as later discussed, to granting a more limited approval than that for which the application contends.

19. In force at the date of the hearing - and therefore said, by Mr Webber, to be relevant but a position disputed by Mr Kondilios - is the Ku-ring-gai Development Control Plan 2015 (the DCP). The objectives of the DCP in Part 18, Riparian Lands said by the Council to be relevant in our consideration of this application are in the following terms:

1 To maintain natural waterways and floodplain processes.

2 To protect natural features, functions and biodiversity within riparian land (including the waterway).

3 ……….

4 To maintain and enhance the viability of riparian vegetation and habitats.

5 ……….

6 ……….

7 To re-instate where feasible the natural functions and characteristics of the core riparian zone including reconstruction of existing piped or channelized waterways and natural waterways.

8 To prevent further piping and channelisation of watercourses.

20. The controls in the DCP in Part 18, Riparian Lands said by the Council to be relevant in our consideration of this application are in the following terms:

Design

10 Impervious surfaces within the CRZ must be minimised. Where feasible, reduce the existing building footprint and impermeable surfaces within riparian zones.

11 ……….

12 Riparian vegetation is to be retained and enhanced, where any works are proposed to be undertaken in Riparian Lands a Vegetation Management Plan prepared by a suitably qualified person, is required

13 Planting of species listed in Council’s Weed Management Policy will not be permitted within riparian lands.

14 Disturbance of soils within riparian land must be minimised, except where required for rehabilitation or remediation of the waterway.

Watercourse and flood processes

……….

16 No works shall be undertaken on or near a natural waterway or section of natural waterway that would cause straightening, significant relocation, widening, narrowing, piping or lining of the natural waterway.

……….

22 Development is to be designed to maintain or emulate a naturally

functioning watercourse wherever possible.

21. Finally, Mr Webber took us to the Council's Riparian Policy 2004 and, in particular, to the following provisions of that document:

Aims

To fulfil the purpose of this policy, a number of goals have been identified including:

o   Conservation, enhancement, and protection of existing riparian corridors, giving priority to those that are most intact, and those that pass through endangered ecological communities or threatened species populations.

o    Rehabilitation and restoration of degraded, fragmented and highly modified riparian corridors that provide some of the functions of an intact system

o    Restoration of the bio-link value of riparian corridors by creating greater lateral and longitudinal connections between isolated or narrow riparian zones.

o    Conservation and enhancement of local biodiversity and habitat quality

o    Prevention of further piping and channelling of watercourses and where possible reinstate existing piped or channelised watercourses to their natural form.

Eliminating an irrelevant matter

22. At this point it is appropriate to observe that one reason advanced by Mr Kondilios on behalf of the Ryans for the piping and the resulting surface landscaping was that the Ryans held safety concerns for their three children (the eldest being 11 years of age at the present time). It is unnecessary, for the purposes of these proceedings, to make any comment about (let alone determination concerning) these safety concerns. It is long settled that proper planning considerations are attached to the land (in rem) and not on the idiosyncratic issues that might arise concerning the persons who occupy the land (in personam). This proposition was put to Mr Kondilios and he conceded that the safety concerns were not matters properly to be taken into account in our consideration of whether or not the Ryans’ piping proposal should be approved.

The “amber light” approach

23. During the course of the site inspection, consistent with the “amber light” approach taken by the Court in planning merit appeals, we asked Mr Kondilios and Mr Webber to have their respective experts consider whether or not we might contemplate permitting piping and landscaping but confining it to terminating upstream to a point we identified. This point appeared, from the survey plan (Exhibit B), to be approximately 7 m from the point where the streamway flowed under the southern boundary of the site at its south-western corner.

24. It quickly emerged that neither side was supportive of piping limited to the location we asked the parties to consider.

25. Mr Kondilios advised us that the Ryans’ position was that, if we considered that there needed to be more open channel for the streamway from the point where the streamway flowed out of the site, the distance that would be acceptable to the Ryans was a little over 3 m from where the streamway went under the fence. Mr Kondilios made it clear that, although the Ryans were prepared to accept such an outcome, it was not offered as an amendment to the proposal but would need to be imposed by us. However, during the course of the site discussions, Mr Kondilios did make it clear that the Ryans were prepared to install and maintain a properly constructed gross pollutant trap at an appropriate location toward the downstream end of the streamway on the site.

26. For the Council, Mr Webber indicated that the Council’s experts maintained the position that no additional piping was acceptable. However, whilst maintaining that position, Mr Whyte indicated that if we were to permit any piping contrary to the Council's express position, such piping should extend no further than the point slightly downstream of the existing wooden bridge where there was an obvious and significant change of grade in the streamway.

27. Mr Kondilios and Mr Webber accepted that, if we were to approve piping but to some lesser extent than that proposed by the Ryans, there would need to be a revised landscaping plan and, to the extent that there might be an extension to the open area of the streamway channel, a proper engineering treatment to it and a requirement for there to be a plan of management (that could be conditioned to be to the satisfaction of the Council but that such management regime did not need to be prepared prior to the termination of this appeal).

The tensions requiring resolution

28. There are, in our view, two differing tensions that require consideration and determination in these proceedings. The first arises out of the Council's planning documents themselves - documents which we consider contain the internal tension that we described below in more detail.

29. In a development appeal where issues of riparian zone management arise in the context of a broader development, the Council is in the position where it has the power to mandate improvements to a waterway and/or its riparian zone without any conflict with its policy objective of not permitting piping. Those circumstances are absent in these proceedings.

30. In these proceedings, the sole development that is proposed is piping of the streamway and what might be necessary works attendant on such piping if it were to be approved. There is, absent some approval for piping, no foundation upon which the Council could engage with proscribing ameliorative works in the streamway or its riparian zone. The consequence that necessarily follows from this is that, if the appeal is dismissed, there will be no improvement to the streamway and its riparian zone and it will continue to operate in its present unsatisfactory and downstream impacting fashion - with the only opportunity for improvement being dependent entirely on the Ryans’ goodwill (evidenced through the present informal gross pollutant trap).

31. This tension necessarily, therefore, requires us to consider whether it is appropriate to permit piping (whether or not to the extent proposed in the application being a separate question) in order to enable us to invoke the power of mandating improvements to the streamway and its riparian zone. It is only if we consider that resolving this tension by permitting piping to enable invocation of the broader power do we then move to consider how those benefits might be maximised in environmental and ecological terms (bearing in mind that the secondary aspect of improved amenity for the occupants of the site must also be considered in that balancing process).

32. The second tension is between the broad thrust contained in the Council’s planning documents that suggests, depending on the resolution of the first tension, that there remains a conflict between what the Council says is a presumption against piping and the desire of the Ryans to modify the land form of the private open space at the rear of their house in order to make it more functional for the occupants of the site (whether the Ryan family or any future occupants that might come after them).

Consideration of The Council’s position

33. Mr Webber submitted that the appeal should be rejected and that the maintenance of the status quo was preferable not only to the proposal for almost complete piping of the streamway but also to any alternative suggestion involving some extension of the existing piping near the northern boundary even if coupled with rehabilitation of the watercourse from the end of such extended pipe along the residual open channel to the south-western corner of the site.

33. He submitted (consistent with Mr Whyte's on-site evidence) that, in its current, degraded state, the streamway still performed ecological services which would not be provided if the streamway were to be piped. However, no evidence was proffered as to the magnitude of the ecological services or on whether, if only part of the channel were piped and the remainder were rehabilitated, the ecological performance of the rehabilitated section would be greater or lesser than that of the current streamway.

34. As earlier observed, the current state of the streamway is that it is heavily overgrown by exotic weed species.

35. However, the Council's position is that these exotic species provided primary productivity which would support a food chain for small invertebrates; provided bank stabilisation; trapped sediment and gross pollution; and had a nutrient assimilation function.

36. The weeds, at present (and in perpetuity if they remain) contribute propagation material to the downstream catchment. While it is self-evident that the weed cover provides productivity, there is no evidence as to the nature of the invertebrate community supported by this primary productivity, either in terms of size or composition. The limited extent of the gross pollutant trapping capacity of the existing weed cover was evident during the site inspection.

37. In terms of nutrient assimilation, plant growth requires uptake of nutrients. However, the nutrients are still in the system. Through microbial processes, some or all of the nitrogen assimilated may be returned to the atmosphere, but the other nutrients will, over time, accumulate in the soil or will be carried further down the catchment. Nutrients will be temporarily “locked up”, but will only be “lost” if there is management periodically to remove and dispose of them away from the streamway.

38. One component that the Ryans’ offer is the installation of a gross pollutant trap at the downstream end where the streamway leaves the site. The Council's submission was not supportive of this component; while recognising that such a structure would collect litter, the Council submitted that such a structure would not address fine sediment or nutrients.

39. The catchment upstream of the site contributes litter and other matter washed off the road surfaces down the streamway. The Ryans currently remove and dispose of the litter component trapped by either the weeds or the informal gross pollutant trap earlier described. Provision of a formalised gross pollutant trap, as distinct from the vegetation in the watercourse acting as a diffuse litter collector or the operation of the present informal gross pollutant trap, would facilitate better capture of the litter, although periodic management to remove the litter would be necessary.

40. However, the Council’s position appears founded on continuing reliance of the Ryans’ goodwill to continue such limited activities as are presently undertaken and, in effect, the unstated assumption that these will continue.

The consequences of dismissing the appeal

42. It is clear to us that, if we were to dismiss the appeal, there would be two negative consequences that would follow from doing so. The first and greater consequence would be that the present unsatisfactory state of the streamway would continue without any of the current adverse impacts being able to be mandated to be abated. The lessor outcome would be that the Ryans would obtain no enhancement of the utility of the private open space at the rear of their dwelling. As we have earlier noted, we do not take into account suggestions that there are safety reasons why the application should be approved.

The consequences of approving the application

43. If, on the other hand, we were to approve the application as presently proposed (being, in effect, the full piping of the streamway across the Ryans’ property), the downstream environmental benefits would be limited Mr Whyte said. Indeed, for the reasons we have earlier set out, it might well be that the additional pH load as a consequence of full length concrete piping might effectively negate such benefits as would arise from the structures proposed in the south-western corner of the Ryans’ property.

44. However, for reasons that can be seen from what follows in this decision, that it is not necessary for us to endeavour to determine that (even assuming there might have been some proper evidentiary basis upon which we might consider doing so).

45. On the other hand, there would be enhanced amenity benefits to the Ryans, of a significantly greater degree than is presently the position in their rear yard. This would provide a significant benefit to the individual current and future occupants of the site, an outcome that would be regarded as consistent with the broad objectives of land use planning regimes.

The potential benefits of an intermediate position

46. Granting consent to some intervention with the streamway (if taken up by the Ryans) would at least provide an opportunity to mandate what occurs and, importantly, imposing an ongoing management regime for the streamway. This option warrants consideration in our view.

Engaging the “amber light” approach

47. It is clear to us that proper consideration of that which we have set out immediately above leads to the inevitable conclusions that, first, the “do nothing” approach of refusal of the application is undesirable and, second, that while there is a significant site-specific benefit in approving the application in its totality, the absence of any likely overall tangible environmental improvement downstream means that approving the proposal in its entirety would be in fundamental conflict with one of the two significant elements of the Council's planning controls whilst, at the same time, doing nothing in support of the other balancing elements of those controls.

48. This, in our view, necessarily engages consideration of the “amber light” approach taken in such instances.

The most beneficial outcome

49. Having concluded that it is not appropriate to approve the proposed development but that some development may be capable of being approved in a form of implementation to be determined by us, we need, now, to turn our attention to what such an outcome might be and what procedural steps might need to follow therefrom.

50. We earlier set out three intermediate piping options that were canvassed during the course of the site inspection. We have concluded that we should not further contemplate the original proposition we asked that the experts examine (an end of pipe being approximately 10 m from the south-western corner of the site where the streamway flows under the fence). We have reached this conclusion because there was no support for such a proposition from the experts advising either of the parties to the proceedings.

51. We turn, therefore, to the position advanced on behalf of the Ryans, namely that the setback of the end of the pipe from the south-western corner of the site should, effectively, be doubled from 1.6 m to a little over 3 m. Doing so would permit the installation of the gross pollutant trap offered by Mr Kondilios on behalf of the Ryans whilst still permitting the construction of the headwall structure earlier discussed.

52. However, we consider that the environmental benefits of doing this, whilst positive, are limited. Although there would also be a significantly enhanced amenity benefit for the current and future occupants of the site, we do not consider that the limited environmental benefits (when coupled with the amenity improvement) are sufficiently positive, taken together, to negate the presumption in the Council's controls and policy against permitting additional piping of watercourses. The limited “protect and improve” or rehabilitation … of the waterway or riparian land (cl 61M(1)(a) and (3)(b) of the KPSO) aspects that would be derived from endorsement of this more limited improvement of the proposal would not be sufficiently great to make it acceptable.

53. On the other hand, when weighed against the Council’s various controls and policies, these improvements to the amenity of the occupants of the site do not outweigh the proposal’s limited environmental contributions.

54. That leaves us with the alternative advanced by Mr Whyte (an alternative we acknowledge was advanced with reluctance and only when pressed to do so by us) that piping of the upstream elements as far as the point of gradient change a little downstream of the wooden bridge might be contemplated.

55. On fine balance (indeed, on very fine balance), we have concluded that it would be appropriate to grant development consent to a revised proposal that permitted piping and fill to that point with a redesigned engineered open channel from that point to the streamway’s discharge point at the south-western corner of the site. Such a redesigned open channel element would have the advantages of incorporating stream bed structures that would slow the downstream flow whilst, at the same time, encouraging deposition of sediment.

56. The ability to plant, far more expansively, over the greater open length but done in the fashion contemplated in sheet 5 of Exhibit A would also provide some further opportunity for environmental benefit (although we accept that it might be limited depending on the nature of the planting able to be achieved having proper regard to what is likely to be the comparatively ephemeral nature of water flow). The final environmental benefits that would come from the adoption of this outcome would be the incorporation of weed removal and beneficial landscaping requirements - thus addressing appropriately the otherwise ongoing likelihood of downstream weed transmission – together with a mandated ongoing management regime for the streamway.

57. Although not pressed by the Council, we also consider that this outcome will also provide adequate space for a gross pollutant trap as offered by Mr Kondilios and it should be incorporated in any new design.

58. When coupled with the improved (although more limited) amenity outcome, we are satisfied that this option (we repeat, on very fine balance) would warrant being granted approval.

The further processes now necessary

59. During the course of the hearing in court, we questioned Mr Kondilios as to whether such an outcome would be one potentially acceptable for the Ryans or whether it might be characterised as amounting to constructive refusal of the appeal. He indicated that, whilst such an outcome was certainly not desired, his clients would prefer some positive outcome rather than none.

60. However, we are mindful that, before we could give effect to such an outcome, there would need to be a significant revision to the plans to provide a proper basis for us making orders to give effect to this conclusion.

61. We consider it appropriate, therefore, to provide Mr Kondilios the opportunity to consult with his clients as to whether or not they would wish to go to the expense of preparation of those plans and then proceed to their implementation or whether they would prefer to abandon their aspirations for improvement to their rear yard. Their consideration of the balance of cost compared to improved amenity is not, obviously, one for us to weigh but should be one for which they should be afforded a proper opportunity to consider.

62. Therefore, we propose to allow a short period of time (until the close of business on Monday 25 May) for the Ryans to consider this and, if they wish to be granted a development consent in the more limited terms we have determined to be approvable, for Mr Kondilios to notify the Court and Mr Webber of this position. If they do not wish to do so or Mr Kondilios does not notify the Court and Mr Webber that this is the position, we propose to dismiss the appeal.

63. If Mr Kondilios does notify the Court and Mr Webber that this is the position, we propose to allow until the close of business on Monday 1 June for filing and service of the necessary plans to permit orders to be made. This will also permit time for the Council to revise the conditions needing to apply to the consent.

64. There will need to be some (albeit minor, we would expect) revision to the Council's proposed without prejudice conditions of consent. Such revision of conditions would need to incorporate, as discussed with the advocates during the course of the hearing, a requirement for there to be developed an appropriate ongoing management regime with such management regime being prepared to the satisfaction of the Council. The conditions would also need to take account of the agreement that it would be appropriate for any landscaping plan to require native species with a provenance from local seed material to be used, exclusively, in any landscaping arising from an approval. The conclusion we have reached will also require reconsideration of whether any new Turpentine can be included in the new landscaping and, if so, what might be any solar impact on the windows of the dwelling to the west.

65. We therefore also propose to allow the Council until the close of business on Monday 1 June for filing and service of settled revised conditions to permit orders to be made – these conditions will also need to be provided electronically.

66. If the Ryans wish to be granted a consent on the basis set out and the directions below are complied with in this event, we propose to issue orders in chambers to give effect to that outcome. However, to retain control of the proceedings, the matter will be set down for mention before Senior Commissioner Moore at 4.15 pm on Tuesday 2 June in the event that the directions have not been complied with to permit disposal of the proceedings.

Directions

67. We therefore give the following directions:

1. The applicants are to advise the Court and the respondent by the close of business on Monday 25 May if they wish to be granted development consent in the more limited terms determined to be approvable;

2. If the applicants advise that they do not wish this to occur or fail to notify the Court as required by (1) whether or not they wish it to occur, the appeal will be dismissed without further hearing;

3. If the applicants do notify the Court and the respondent as required by (1) that they wish to be granted development consent in the more limited terms determined to be approvable, the applicants are to file and serve the necessary plans reflecting this decision prior to the close of business on Monday 1 June;

4. If the applicants do notify the Court and the respondent as required by (1) that they wish to be granted development consent in the more limited terms determined to be approvable, the respondent is to file and serve, prior to the close of business on Monday 1 June, settled revised conditions to permit orders to be made in chambers with these conditions also to be provided electronically as a .doc (not .docx) file;

5. If the applicants do so notify the Court and the respondent pursuant to (1) that they wish to be granted development consent in the more limited terms proposed and the applicants fail to file and serve the necessary plans reflecting this decision prior to the close of business on Monday 1 June, the appeal will be dismissed without further hearing;

6. If the applicants do so notify the Court and the respondent pursuant to (1) that they wish to be granted development consent in the more limited terms proposed and the respondent complies with (5), orders will be made in chambers to give effect to this decision;

7. The matter is set down for mention before Senior Commissioner Moore at 4.15 pm on Tuesday 2 June in the event that the applicants advise that they wish to be granted development consent in the more limited terms determined to be approvable and directions (1) and (3) have been complied with but direction (4) has not been complied with to permit prior disposal of the proceedings pursuant to (6); and

8. Liberty to relist before Senior Commissioner Moore on one day’s notice.

Tim Moore                            Dr Paul Adam

Senior Commissioner          Acting Commissioner of the Court

Decision last updated: 20 May 2015