SRSJ Management Pty Ltd v Waverley Council

[2010] NSWLEC 1015

Land and Environment Court

of New South Wales

CITATION:	SRSJ Management Pty Ltd v Waverley Council [2010] NSWLEC 1015
PARTIES:	APPLICANT SRSJ Management Pty Ltd RESPONDENT Waverley Council
FILE NUMBER(S):	10551 of 2009
CORAM:	Tuor C
KEY ISSUES:	DEVELOPMENT CONSENT :- amendments to approved residential flat building increase to size of basement and excavation extent of deep soil and soft landscaping increase in external wall height changes to Voluntary Planning Agreement
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996
CASES CITED:	SRSJ Management Pty Ltd v Waverley Council [2008] NSWLEC 1447
DATES OF HEARING:	26 November 2009
DATE OF JUDGMENT:	22 January 2010
LEGAL REPRESENTATIVES:	APPLICANT Ms S Duggan, barrister instructed by Mr N Ferguson, solicitor of Gadens Lawyers RESPONDENT Mr McElvey, solicitor of Sparke Helmore Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

22 January 2010

10551 of 2009 SRSJ Management Pty Ltd v Waverley Council

JUDGMENT

1 This is an application under s96(8) of the Environmental Planning and Assessment Act 1979 (the Act) to the Court to exercise the power under s96(2) of the Act to modify a development consent (317/2007) issued by the Court on 5 November 2008 in SRSJ Management Pty Ltd v Waverley Council [2008] NSWLEC 1447 (the development consent).

Background

2 The development consent approved the demolition of an existing three storey residential flat building and the construction of a new four storey residential flat building with basement parking for three cars accessed by a car lift and strata subdivision at 34 Dellview Street, Tamarama (the site).

3 The s96(8) application (317/2007/B) was filed with the Court on 10 September 2009 (the application). It sought the following amendments as detailed in the Summary of Section 96 Changes prepared by Tony Owen and Partners (Summary) which accompanied the application:

1. Increase of floor levels to Level 2, 3, and 4 by 200mm to provide 2.7m high ceiling to Level 1 in order to comply with SEPP 65 Residential Flat Design Code and accommodate services. (Note: overall roof height of RL 34.7 does not change).

2. The A/C Units will be removed from the approved roof location (as per approved drawing A202 revision E dated 13 August 2008), thereby eliminating any potential visual impacts or view loss, and will instead be located at ground level (2 a/c units at rear of Garage and 1 a/c unit at northern elevation of building) The units must be (and will be) within acoustic enclosures to comply with condition 14 of the existing consent, and have been the subject of a detailed acoustic assessment by Acoustic Logic Consultancy which is submitted with the application.

3. The rear covered terrace to Unit 3 at Level 1 is to be enclosed as part of the Master Bedroom. This will add no bulk to the existing approval as this is all within the approved building envelope and the footprint.

4. Changes to the wording of conditions 18 and 19 in relation to the timing (only) of entry into the VPA (Voluntary Planning Agreement) . All obligations of the VPA remain unchanged, but the application seeks that the VPA be entered into, and its obligations met or secured, prior to the issue of an occupation certificate. The applicant has in fact supplied the VPA to Council 6 months ago (February 2009), however it remains with council to sign.

4 The application did not include a basement plan although the sections indicated an increased width and depth of excavation to that approved. On 27 October 2009, the Registrar issued directions that a basement plan be provided within 7 days. A basement plan was filed as part of council’s bundle on 25 November 2009.

5 The application and the VPA were notified by council and objections were received which raised issues in relation to the increased height and bulk of the proposal, noise impacts from the air conditioning units and the changes to the VPA resulting in a delay in payment.

6 A similar application under s96 of the Act (317/2007/A) was lodged with council and subsequently withdrawn on 16 September 2009. This application included a basement plan, which proposed additional basement excavation in area and depth to provide services and garbage and bicycle storage. The application was notified and council received objections that raised concerns about the extent of excavation and its environmental impacts.

7 The Statement of Facts and Contentions filed on 13 November 2009 includes the increase in the size of the basement as part of the description of the proposed changes. It raised a number of issues in relation to the increased height of the external wall and the extent of excavation and consequent reduction in deep soil planting resulting from the increased basement.

8 During the hearing the applicant sought leave to amend the application to increase the size of the basement (exhibit D). The proposal was less than the width, depth and excavation proposed under 317/2007/A and was agreed by the planning experts as being acceptable. The parties agreed that the notification requirements under s96(8) were met by the notification of the changes to the basement under 317/2007/A and the other changes under 317/2007/B and that the amended basement did not require notification. The letters of objection in response to both notifications were provided in the council’s bundle (exhibit 1).

9 The planning experts also agreed to a proposed condition which lowered the floor of Level 1, thereby achieving the increased ceiling height without increasing the external wall height of the building. The issues between the parties were therefore resolved, other than the concerns of the residents.

Site and context

10 The site is located on the eastern side of Dellview Street, near the intersection with Gaerloch Avenue. It is irregular in shape with a frontage of 21.7m to Dellview Street, a rear boundary of 25.6m and side boundaries of 20.18m (north) and 12.635m (south). The site has an area of about 379.4sqm.

11 The site has a significant slope between Dellview Street (RL27.46) and its rear (RL20.26). The site contains a three storey brick residential flat building with a hipped roof. The building was built in the 1930s and has six units each with two bedrooms. The units have no balconies or private outdoor area. There is a common outdoor area at the rear of the site and a common basement laundry accessed off this outdoor space. There is no off street parking.

12 Surrounding development is a mixture of one, two and three storey houses and residential flat buildings.

13 The application is made under s 96(8) of the Act which provides:

(8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A) (c) or subsection (2) (b) and (c) are to be exercised by the relevant consent authority and not the Court .

14 The modification is under s96(2) which provides:

Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations , modify the consent if:
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
(c) it has notified the application in accordance with:
(i) the regulations , if the regulations so require, or
(ii) a development control plan , if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent , and
(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan , as the case may be.
Subsections (1) and (1A) do not apply to such a modification.

15 The parties raised no issue that the consent as modified would not be substantially the same development as the development for which consent was originally granted.

16 Section 96(3) prescribes the following matters to be considered:

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.

17 Section 79C(1) states:

Matters for consideration-general In determining a development application , a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application :
(a) the provisions of:
(i) any environmental planning instrument , and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan , and
(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
that apply to the land to which the development application relates,
(b) the likely impacts of that development , including environmental impacts on both the natural and built environments , and social and economic impacts in the locality,
(c) the suitability of the site for the development ,
(d) any submissions made in accordance with this Act or the regulations ,
(e) the public interest.

18 Waverley Local Environmental Plan 1996 (LEP 1996), Waverley Development Control Plan 2006 - Amendment No 4 (DCP) and Waverley Affordable Housing Policy 2007 are of relevance to the development the subject of the application. The site is zoned Residential 2(b) under LEP 1996 and the proposal is permissible with consent.

The issues and evidence

19 The Court heard expert planning evidence from Mr P Bull, for council and Mr D Kettle, for the applicant. Neither of these experts provided evidence in SRSJ Management.

20 I had visited the site visit as part of the hearing of SRSJ Management and therefore the parties did not request a further site visit. Adjoining residents from 2/19 and 20 Gaerloch Avenue provided evidence in court. They were principally concerned about the increased basement size and the impacts of excavation. They questioned why, if the development consent required a reduction in excavation, an increase was now being sought. They objected to the further increase in the height of the building, which they considered to be already excessive. The owner of 2/19 Gaerloch Avenue was concerned about the privacy impacts of the proposal and requested that a proposed tree adjoining his boundary be deleted, which was agreed to by the applicant. The owner of 20 Gaerloch Avenue was concerned about the potential noise from the air conditioning units located adjoining her boundary near an open space area.

Excavation and deep soil planting

21 A key issue in SRSJ Management was the extent of excavation which extended beyond the building footprint and was below the requirement for deep soil planting in the DCP (21% approved 30% required). The excavation was required to provide basement parking for three cars (one for each unit) and the area was to be the minimum required to provide the parking and access to it via a car lift.

22 Mr Nash, the planning expert for the Council in SRSJ Management, considered that no parking should be provided due to the extent of excavation required and the loss of deep soil planting. In balancing these competing objectives, I found at [43-44] that:

While the proposal does not comply with the deep soil planting area in DCP 2006 it exceeds the overall landscape requirement and will provide a landscape outcome that is a significant improvement on what currently exists on the site and in the area. The proposal meets the objectives for landscaping at 4.6.1 of DCP 2006.

The removal of the basement car park would provide greater deep soil planting but would not change the appearance or nature of landscaping in any material manner. There would therefore be little benefit to be gained from this change for adjoining properties or the wider area while there would be considerable dis-benefit to the development and the immediate area by the provision of no on site parking.

23 The following conditions were imposed to limit the extent of excavation and to provide a minimum depth of soil over the car park slab to enable the provision of substantial planting:

3 GENERAL MODIFICATIONS

The proposal shall be amended as follows:

a. The basement level is to be reduced to a maximum internal clearance height (measured from the floor to the lowest point of any beams or services allowing 300mm for services / structure) of 2500mm, subsequently reducing the amount of excavation for the development.

40 LANDSCAPED SLABS

Details shall be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate indicating the proposed method of water-proofing and drainage of the concrete slabs over which landscaping is proposed.

The depth of soil over the concrete slabs shall be a minimum of 1000mm to provide sufficient depth for landscaping.

24 The approved landscape plan in Condition 1 is stated as:

Landscape Plan No. 1, Issue A and documentation prepared by ‘360’, dated June 2007, and received by Council on 18 June 2007;

25 Exhibit C of SRSJ Management is the approved landscape plan referred to in Condition 1, although it has the different title of Landscape Plan and Sections.

26 The application does not state that an amendment to the approved landscape plan is sought. However, the landscape plan submitted with the application (the Context Plans) is referred to in proposed Condition 1 of the draft conditions as:

a. Landscape plans prepared by Context, filed with the Court on 13 August 2009:
i. LSK 08604 001 – Rev C (July 2009) – Landscape Concept Plan
ii. LSK 08604 002 – (May 2009) – Plant Images – Low Water/Indigenous
iii. LSK 08604 003 – (May 2009) – Images

27 The Context Plans form part of exhibit A in the current appeal. The complete set of approved plans referred to in Condition 1 of the development consent were not tendered in the appeal and I was not informed that the Context Plans were not the same as the approved landscape plan. The Context Plans differ in a number of respects from the approved plans including:

the extent of hard paving adjoining the east of the building at Level 1 has increased markedly.
The courtyard in the north east area where the basement is proposed to extend is at RL 21.6 whereas the approved plan proposes a transition in levels with the majority of the area being RL21.0, which better relates to the exiting ground level of the site and the adjoining property to the rear.
the approved plan included a number of trees, particularly along the northern boundary which step up with the slope of the site to Dellview Street to provide screening to the building. The Context Plans propose mainly shrubs.
the extent of hard paving to the west of the building and in the south east corner has also increased.
steps have been added to the south east corner resulting in a change in level between the courtyard off unit 3 (RL21.6) and the south east corner (RL22.7). The approved plan proposed similar levels for both these areas of about RL 21.4. Although no survey plan is provided, it appears that the Context Plans would result in a different relationship between the site and the adjoining property to the rear (19 Gaerloch Avenue) with the potential for overlooking. Although this could be addressed by a 1.8 m fence above the ground level of the site, the height of the fence above the ground level of 19 Gaerloch Avenue is not specified and its impacts therefore cannot be assessed.
the Context Plans are a concept plan with no detail of the quantity or size of the plants proposed similar to that included in the approved plan.

28 It would appear that the Context Plans reflect the basement extension that was proposed in 317/2007/A and illustrated in exhibit B which sought an extension of the basement further to the east and an increased depth of the basement (FFL RL 17.6). The Joint report states that the deep soil landscaping would be 8.8% of the site (approved 21%) and the soft landscaping 34.3% (approved 22%). The total landscaped area would remain about the same.

29 Following discussions between the planning experts, the proposed increase in the basement to the east was reduced in area by about 11sqm (although it is still extended further than the development consent) and the original depth of the basement (FFL RL 18.2) was retained. Details of the numerical areas of deep soil and soft landscaping are not provided but the deep soil would be less than that approved under the development consent (about 12% proposed). Furthermore, the depth of soil in the soft landscape area over the basement slab was reduced to 400mm. The requirements of Condition 3(a) of the development consent to amend the depth of the basement to reduce excavation are also not met. The evidence of the experts is that the depth cannot be reduced due to the requirements for services, structure and provision of soil over the basement slab.

30 The experts agreed that a floor to ceiling height of 2.7m on Level 1 could be achieved by lowering the approved floor of Level 1 (FFL RL 21.7) by 200mm rather than increasing the external wall height. However this further reduces the depth of soil to a minimum of 250mm. The experts agreed to conditions that gave effect to these changes and Ms Duggan, for the applicant, submitted that the tree planting and landscaping in the Context Plans could be achieved.

31 Further Ms Duggan submitted that the increase in the area of the basement is necessary to provide an electrical and communications cupboard, garbage bin storage area and waterproofing of the basement wall. In the development consent the garbage bins were to be stored in each garage area, however, it is now proposed that the garbage bins be exhausted and they are placed in a communal area for ease of collection.

32 Both Mr Bull and Mr Kettle considered the increase in the basement and the reduction in deep soil planting to be acceptable. Both experts stated in oral evidence that deep soil is mainly required for infiltration and that given the geology and coastal location of the site there is little difference between the planting that can be achieved in deep soil and soft landscaping areas. Mr Kettle also stated that large canopy trees would be inappropriate due to view loss and overshadowing. In his opinion the low scale planting proposed in the Context Plans is appropriate. I note that this opinion appears to be different to that expressed in the joint report where he supported the retention of a minimum soil depth of 1000mm required by Condition 3(d) which would enable the planting of medium canopy trees as required by the DCP.

Findings

33 The extent of excavation resulting from the provision of basement parking and the amount of deep soil planting were key issues in SRSJ Management. In balancing the competing objectives in that case I found that it was reasonable to provide one car space for each unit. This finding was on the understanding that the size of the basement was minimised to limit excavation and that 1000mm of deep soil would be provided over the slab, which would be adequate to provide landscaping, including trees and that the departure from the deep soil control in the DCP was not such that the objectives of the control would not be met, particularly when compared with the existing deep soil on the site and the overall amount of deep soil and soft landscaping to be provided. The approved landscaping plan reflected this decision as well as indicating that the relationship of the site to adjoining properties would generally be maintained.

34 The application seeks to increase the size of the basement to accommodate services and relocate the garbage bins. Other internal changes are also shown on the plans, including an increase in the dimensions of the parking spaces for Units 1 and 2 and a decrease for Unit 3. The length of the spaces has increased by about 700mm and the width of Units 1 and 2 has also increased by about the same amount. Within the garages, services are located along the western wall and the storage along the northern wall (including the garbage bin storage) has been deleted. The clear space in both Units 1 and 2 may now be sufficient to accommodate two cars. Whereas the space for Unit 1 is tight even for a single car, particularly with the inclusion of the bicycle storage rack.

35 It is unclear why the internal dimensions of the basement have increased to the north and the west. Mr Kettle refers to the Baseline letter (exhibit 2), which states that to ensure waterproofing a cavity should be provided to the basement excavation, however, the plans do not appear to indicate an increase in the width of these walls but rather an increase in the dimensions of the basement.

36 I do not accept that the need to exhaust the garbage bins or that they be centrally located is sufficient reason to relocate them from their approved location. It would appear that there is scope within the approved existing basement to accommodate the required services and provide parking and access for three cars. An increase in the wall thickness may be required for waterproofing. However, based on the evidence before me I do not accept that the increase in the basement is justified given that it will reduce the extent of deep soil planting to about 12% of the site with a minimum depth of soil for soft landscaping of 250mm over a flat slab which extends beyond the building footprint and occupies most of the site. This depth of soil would not be sufficient for the approved landscape plan to be implemented and would limit planting to predominantly turf and ground covers. While shrubs and trees may be able to be placed in deeper planter boxes no details have been provided of how the planters over the car park can be achieved.

37 I am not satisfied that the proposed landscaping resulting from the basement extension will achieve the objectives and strategy for Landscaping and Deep Soil Planting in s4.6 of Part D2 of the DCP which provide:

4.6.1 Objectives
Encourage mature and substantial tree planting to improve the amenity of developments.
Allow for soft landscaping to provide screening between buildings.
Ensure that landscaped areas are useable and maintainable spaces that contribute to the open space structure of the area.
Contribute to stormwater efficiency.

4.6.2 Strategy
Maximise the area of deep soil on site to allow for mature tree growth.
Provide landscaped areas of useable size and proportions.
Integrate on-site stormwater management with the design of landscaped areas.

38 The Controls in s 4.6.3 specify that 30% of the site is to be provided as deep soil and that an additional 10% of the site is to be provided as soft landscaped open space. To be included as landscaped open space the minimum depth of soil is to be 1m. The area included as soft landscaping in the amended proposal would not meet this control and therefore the proposal would be significantly under both the control for deep soil and soft landscaped open space. Section 4.8 - Planting on Structures provides controls for the minimum soil depths to be provided for the size of plants. It indicates that a minimum depth of 250mm would be suitable only for turf, with ground covers requiring 300mm to 400mm.

39 While some of the changes proposed in the Context Plans may be acceptable, the application does not seek approval for this amended landscape plan nor does it provide adequate justification or assess the impact of the changes. The Context Plans provide a much greater paved areas than the approved plan and do not achieve a similar landscaping regime to that approved in the development consent.

40 There is clearly a difference in the impact of a development that covers nearly all of a site with a basement that extends beyond the building footprint. While I acknowledge that there are characteristics of the geology of the site and its coastal location that would mean that water penetration and large planting is difficult to achieve. However, I do not accept that the same conditions of deep soil can be achieved by a soil depth of a minimum of 250mm over a slab which occupies nearly all of the site.

41 I therefore find that the amendments to the basement as currently proposed should not be approved.

Increased external wall height

42 The application sought to increase the height of the external wall by 200mm. While this increase would have minimal impact on bulk, overshadowing and view loss, it should be considered not only in comparison to the approved external wall height but against the height controls in s3.3.3 of Part D2 of the DCP which permits a maximum external wall height of 6.5m. The development consent approved an external wall height of 7.2 to 8.9m and did not comply with the wall height control and a number of other controls in the DCP, such as number of storeys and floor space ratio (FSR). However, The approved external wall height was generally within the wall height and pitched roof of the existing building on the site and the proposal was below the maximum overall height control of 9.5m in the DCP. In SRSJ I note at [21] that:

The weight to be given to a development control plan is determined in accordance with the principles in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 . Clearly DCP 2006 must be the focal point for the consideration of the application. The experts agreed that in the context of the redevelopment of an existing building which already exceeds the requirements of DCP 2006, the application should move towards compliance with the controls and should not result in greater impacts than those resulting from the existing building.

43 A further increase in the external wall height and a greater variation from the controls is not justified given that the change which necessitates the increase can be achieved by lowering the floor of Level 1 rather than increasing the ceiling. This will not increase the height of the external wall but the relationship of the basement, the first floor level and the depth of the planter boxes needs to be resolved before this can be approved. A minimum depth of 250mm is clearly insufficient for planting. However, this depth would not be required for a paved terrace area adjoining the building.

The increase in the floor to ceiling height on Level 1 is necessitated by the change in the uses of Level 1 from media and rumpus rooms to master bedrooms which has also resulted in an increase in the size of Unit 3 by partially enclosing the terrace to accommodate the master bedroom, which results in a minor increase in FSR. This was agreed by the experts to be acceptable.

The rumpus rooms are relocated to Level 3. While no issue was raised with this change it has the potential for privacy impacts beyond those of the approved master bedrooms.

Other internal changes are also proposed to the units which are not detailed but are unlikely to have an impact.

Re-location of air conditioning units

45 The removal of the air conditioning units from the roof is acceptable, however, there is an inconsistency between the description in the Summary and the plans. The Summary states that the units are to be relocated to ground level (Level 1), however, one unit is relocated to Level 1 and the other two units are relocated to the garage and shown on the plans and elevations on Level 2.

46 While, I accept the recommendations of the noise report that, if properly enclosed, the noise impacts will be acceptable, it is preferable if these units are located on Level 1 as described. This would ensure that the units are below the garage and fence level of the adjoining property and limit their potential visibility from this property.

Other changes

47 There are a number of other changes between the development consent plans and the application plans that are not shown in red or described in the Summary. There are also inconsistencies in the application between the plans, elevations and sections, which make it unclear and difficult to understand what is actually proposed, and whether this is different to the development consent, including:

the roof level of the garage is approved as RL 27.1 and is proposed as RL 27.9 on plan (A201C) with the overall height of the garage shown on the south elevations as RL 27.6 (A301C) and higher on the west elevation (A300C).
the areas off level 2 and 3 in plan appear as balconies, although notated as having fixed glazing and, on Level 2, as being non trafficable tiles. However, the plans also introduce arrows which could denote sliding doors and there is no notation that clarifies that the “balcony” edge is a sliding screen and not a balustrade. The elevations and the sections are also not notated to clarify the design and use of these areas.
As part of the amendments to the original application the balconies on Levels 2 and 3 were deleted due to concerns about privacy issues. The development consent proposed bedrooms off these areas, which also minimised privacy impacts. The proposal to relocate the rumpus room to Level 3 raises potential privacy impacts and emphasises the importance of ensuring that the plans are consistent and that there is no ambiguity about the use of these areas. This potential for ambiguity is apparent in the assessment report on the application where the areas are described as balconies off Level 2 and 3.
The amendment to the driveway which was approved as part of the development consent (A513F) does not appear to be incorporated into the application plans.

48 The draft conditions seek to replace the drawings approved in Condition 1 with the drawings that comprise the application, thereby approving all the work shown in these drawings. While these changes may be acceptable, the application does not explicitly seek approval for them and as there are inconsistencies in the plans, elevations and sections it is not appropriate for the Court to approve these changes on the information before it.

Changes to Conditions 18 and 19

49 The changes to conditions 18 and 19 in relation to the VPA were agreed between the parties. While the monies will be paid later council was satisfied that there would be no change to the obligations within the VPA if the payment were provided prior to occupation certificate rather than before the construction certificate. The amendment to these conditions is independent of the other changes and does not rely on accurate drawings. I accept the parties position that the changes to conditions 18 and 19 are acceptable and this aspect of the s96(2) modification is approved.

50 The orders of the Court are:

1. The appeal is upheld in part.
2. The application under s96(8) of the Environmental Planning and Assessment Act 1979 to the Court to exercise the power under s96(2) to modify development consent 317-2007 to demolish an existing three storey residential flat building and construct a new four storey residential flat building containing three attached townhouses with basement level parking for three cars accessed by a car lift and strata subdivision at 34 Dellview Street, Tamarama, is approved in relation to the changes to conditions 18 and 19.
3. Conditions 18 and 19 of development consent 317-2007 are amended as follows:

After the words “ Prior to the issue of” delete the words “ a Construction Certificate ” and insert instead “ an Occupation Certificate”.

3. The exhibits are returned.

_______________________

Annelise Tuor
Commissioner of the Court