Sundown Landscape Supplies Pty Limited v Penrith City Council

[2004] NSWLEC 3

Land and Environment Court

of New South Wales

CITATION:	Sundown Landscape Supplies Pty Limited v Penrith City Council [2004] NSWLEC 3
PARTIES:	APPLICANT Sunline Landscape Supplies Pty Limited RESPONDENT Penrith City Council .
FILE NUMBER(S):	10933 of 2003
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Staged development Substantially the same development? Characterisation of stages of development Impact on neighbours View from public places .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 96(2)(a) Environmental Planning and Assessment Model Provisions 1980 Sydney Regional Environmental Plan 20 - Hawkesbury-Nepean River Sydney Regional Environmental Plan 25 - Orchard Hills Orchard Hills Development Control Code No 1 .
CASES CITED:	Moto Projects (No 2) Pty Ltd V North Sydney C [1999] 106 LGERA 298; True Item Pty Limited v Baulkham Hills Shire Council [1996] NSWLEC 155; .
DATES OF HEARING:	6 and 7 January 2004
EX TEMPORE JUDGMENT DATE :	01/07/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr D Galpin, Barrister RESPONDENT Mr S Flanagan, barrister INSTRUCTED BY Gadens Lawyers

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10933 of 2003 Moore C 7 January 2004 Sundown Landscape Supplies Pty Ltd
Applicant
v Penrith City Council
Respondent Judgment

1. This is an appeal against a refusal by Penrith City Council on 26 June 2003 of an application dated 21 February 2003 to modify conditions of consent granted to development application 63/93. The appeal is made pursuant to s96 of the Environmental Planning and Assessment Act 1979 ("the Act"). The site is on the south eastern corner of the intersection of The Northern Road and Wentworth Road at Orchard Hills. It is described in the statements of evidence of the town planning witnesses as being Lot 40 in DP 8353672 and is known as 2006-2012 The Northern Road. It has a frontage to the roundabout on The Northern Road of approximately 90 m and its north south boundaries are of approximately 230 m in length. It is generally rectangular in shape save for the rounding where it fronts the roundabout at the intersection of the Northern Road and Wentworth Road. It is some approximately 1.9 ha in area.

2. Development consent 63/93 was granted on 6 May 1993 and was subject to 40 conditions. The consent gave six reasons for the imposition of these conditions of which two are relevant in these proceedings. They are reasons two and four. Reason two reads:

2. To ensure that no injury is caused to the existing and likely future amenity of the neighbourhood .

3 . Reason four reads:

4. To ensure that adequate road and drainage works are provided.


4 . The 1993 consent refers to the site as being 334 The Northern Road and gives its property identification as being Lot 4 in DP 711076. However, the consent also notes the site as being at the relevant intersection and neither party has submitted that anything arises from this apparent misdescription. I have proceeded to determine these proceedings on the basis that the present description given by the planning experts is the correct and appropriate one.

5 . Critical to the present proceedings are the terms of condition 1 to the 1993 consent. This condition reads:

1. Before the usage of the development commences, all of the conditions of this consent are to be complied with to council’s satisfaction.

6 . The condition then continues to establish an inspection regime for such compliance.

7 . A further matter for consideration in these proceedings is the fact that conditions 4, 10, 11, 37 and 40 have been initialled as “OK” by a person whose initials were identified by Mr P Wood, a senior environmental planner, who provided a statement of evidence and gave oral evidence in the proceedings on behalf of the council, as being a development engineer employed by the council. The contentious condition in this regard is cl 37 which reads “ All perimeter fencing is to be open in nature .”

8 . I indicated to Mr Flanigan, counsel for the respondent, that any contentions concerning these initialled clauses were appropriate to be dealt with in a different Class of proceedings in the Court’s jurisdiction rather than being tested in or determined in these proceedings. Mr Flanigan also made a late proposal concerning the interpretation of cl 37 that would have invited me to impose a condition on the applicant that would have effectively provided a requirement to demolish the existing fence and to replace it with one of a different colour albeit of similar construction. I ruled, at that time, that I was not prepared to entertain such a proposal as it would have constituted, in my assessment, an ambush of the applicant with the issue being raised at the late stage of the proceedings and the appropriateness of an alternative forum, if it became relevant.

9 . The s96 application currently before the Court proposes three stages rather than the completion of the entire development prior to the commencement of trading. The application as made envisaged trading during stage 1 of that staged development. However, the applicant, without objection from the respondent, also offered to accept a condition which would require that trading not commence until stage 1 was completed.

10 . It was apparent from evidence given by the resident objectors, Ms Harla Majdoub of 384 Wentworth Road and Mrs C Wong of 1 Carolyn Chase, that the site was presently trading in breach of the consent. This was, properly, conceded by Mr Galpin, the applicant’s counsel.

11 . It would also appear from this evidence that the applicant is carrying out activities at the site at hours that are in breach of condition 14 of the 1993 consent. However, these are also matters for another Class of proceedings in the Court and the applicant, in these proceedings, is entitled to the presumption of compliance with the terms of any modification that might be permitted by the Court. If such modification were permitted and it was subsequently breached, there are remedies in other Classes of the Court’s jurisdiction available to the respondent to deal with such future breaches.

12 . The council filed a formal statement of issues on 29 September 2003 which contained seven issues. As a consequence of the way proceedings have unfolded, in practice, there are four matters that arise for determination by me.

13 . These are as follows:
• Is the present application properly within the scope of s 96(2)(a) of the Act?
• If not, is the application with a condition restricting trading being permitted to commence only after the completion of stage 1 activities within the provisions of that section of the Act?
• If either of these questions is answered in the affirmative, then the next question arises of whether the relevant stage conforms with the relevant controls, particularly the nature of the permitted activity.
• If the answer to that question is yes, the final question arises is whether such an approved stage passes the general assessment criteria contained in s 79C of the Act.


14 . Oral evidence was given in the proceedings by the two objectors whose names were noted earlier in this decision; by Mr Wood, as noted earlier and by Ms Kay Erdelyi, a consultant town planner on behalf of the applicant. In addition, an agreed joint statement of evidence was tendered by the drainage consultants who would otherwise have been required to give evidence. These drainage consultants were Mr N Lawson, on behalf of the applicant, and Mr E Hausfeld, on behalf of the respondent.

15 . The effect of this joint report is that implementation of the proposed drainage measures originally set out for the 1993 development and originally proposed for stage 3 of the present application (but conceded by the applicant that they should be brought forward to stage 1), if constructed) would address the relevant issues raised by Sydney Regional Environmental Policy 20 No2 Hawkesbury-Nepean River ("SREP 20") and that these would ensure that there were no adverse impacts of run off from the property.
16 . The applicant also tendered an acoustic report submitted in support of the 1992-93 development application process. This report concluded that the proposed noise conditions and relevant regulatory requirements could be satisfied with respect to the development. This report was prepared by Mr Rodney Stevens and was not contested in any evidence led by the council. I am, therefore, left on that issue with uncontradicted evidence which indicates, and I must therefore accept, that the relevant noise criteria are capable of being met.

17 . The appeal comes to be dealt with pursuant to the relevant statutory provisions in s96 which deals with the modification of consent. The relevant provision is contained in s96(2)(a) which reads as follows:
2. Other modifications
The 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 regulations, modify the consent if it is satisfied that the development to which the consent is modified relates, is substantially the same development as the development for which consent was originally granted and before that consent is originally granted, was modified if at all.


18 . The present consent has not been subject to any further modification. The test that then requires to be addressed is whether the development that is subject to the current appeal is substantially the same development as the development for which consent was originally granted.

19 . The section also requires, in s96(3), that the Court must take into consideration, in assessing an application for modification, such matters as are referred to in s 79C(1) of the Act as are relevant to the development subject to the application.

20 . The first issues raised by the council in this regard is whether what is sought is substantially the same as the development consented to in 1993. There is no dispute, in these proceedings, that, at the conclusion of the proposed stage 3, the development will be, to all intents and purposes, the same development as that envisaged by the 1993 consent.

21 . How are the proposed stages to be tested? In his helpful written submissions, Mr Galpin cited the decision of Bignold J in Moto Projects No. 2 Pty Limited v North Sydney Council (1999) 106 LGERA 298 at p 309. Mr Galpin quoted from pars 55 and 56 of his Honour’s decision. Those paragraphs read:

55. The requisite factual finding obviously requires a comparison between the development as currently approved and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is essentially or materially the same as the (currently) approved development.

56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently improved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather the comparison involves an appreciation qualitative as well as quantitative with the developments being compared in their proper contexts, including the circumstances in which the development consent was granted.


22 . It therefore falls to me to undertake a qualitative and quantitative comparison of the staged development proposal with the outcome that would be achieved if the critical words earlier quoted from condition 1 of the 1993 consent were fulfilled – namely that all works were to be undertaken prior to commencement of trading.

23 . The application, as it presently stands, seeks to permit trading during the carrying out of the works to stage 1 completion. There would be no completion prior to trading of conditions 18, 19, 29 and 30. Those conditions are the four conditions that relate to water storage and water quality.

24 . Condition 18 would require a macrophyte zone within the water storage dam to an area specified in the condition. Condition 19 would require the volume of storm water detention required to be satisfied by the retention basin.

25 . Condition 29 requires " the quality of water discharged from the development shall match the standard which existed prior to development ".

26 . Condition 30 also requires that there be a volumetric control on the discharge of water from the site. The works identified by the drainage experts' joint report would satisfy these four condition and would, by necessary implication, also satisfy the provision contained in the objectives of SREP 20 in clauses 6.3 and 6.4, which are clauses relied upon by the respondent. The applicant did not submit that these would be met without the carrying out of the drainage works.

27 . I am therefore satisfied that, on this basis, the development as currently proposed, would not be substantially the same as the development for which the 1993 consent was granted. The second element that stands in the way of permitting stage 1 trading is the issue of dust suppression. The objectors, particularly the immediate neighbour to the east, gave evidence concerning the dust impact on their properties and, in the case of the neighbour immediately to the east, concerning the dust impact on clothes on her clothesline and on the general amenity of her premises.

28 . Although the house on this allotment has been constructed significantly closer to its western allotment boundary than to its eastern boundary and significantly closer to the Wentworth Road frontage than to the Carolyn Chase frontage and was only constructed some four years ago, nevertheless the owners of the premises should be entitled to the presumption that an expectation of activity on the current site would be based on at least conformation with the standards of the 1993 consent.

29 . Condition 32 of the 1993 consent requires " a sprinkler system is to be installed at the storage bins and the truck manoeuvring area ". The storage bins envisaged in the 1993 consent are for the storage of bulk landscaping materials, including many materials containing fine particulates. They are located at the eastern end of the site and close to the dwelling on the neighbours’ property.

30 . The plan for stage 1, which is contained in appendix B to the statement of evidence of Ms Erdelyi, sets out in clauses 3 and 4(c) that the sprinkler dust suppression system is to be carried out within a twelve-month period, that is the period during which stage 1 is expected to be undertaken. For reasons of amenity of the neighbours to the east, this is not acceptable and therefore trading during stage 1 is not, on this basis alone, a matter which would be substantially the same as required by s 96(2)(a). Therefore, on those two separate bases, I determine that the present application does not satisfy the provisions of s96(2)(a).

31 . However, that is not the end of the matter. I then require to consider the possibility of staging whereby stage 1 would be completed before trading would be permitted on the site. I therefore turn to consider what would be on the site, in both a qualitative and quantitative fashion if the stage 1 works were completed and also to consider what would be omitted if the stage 1 works were completed.

32 . The stage 1 works envisage:
• the retention of temporary rather than permanent storage bins at the south western corner of the allotment;
• the formalisation of a parking area in approximately the eastern central portion of the allotment;
• a degree of limited landscaping along The Northern Road frontage;
• the establishment of an outdoor plant display area at the south western extremity of the proposed trading area which is at approximately .6 to .7 towards the west of the southern boundary of the allotment;
• the construction of the agreed drainage works; and
• landscaping would be undertaken along the eastern boundary adjacent to the most proximate objecting neighbour and along the eastern portion of the northern boundary.

33 . The works proposed to be deferred until stage 2 are:
• the construction of an outdoor display area at approximately .3 to .4 of the southern boundary measured from the eastern end;
• a substantial indoor plant display building located in the centre of the southern boundary; and
• a further materials display area in the north eastern corner of the allotment.

34 . Further landscaping, along the southern boundary portion of the northern boundary from the entrance area to where the boundary turns for the abutting roundabout and across the face of the embankment, is proposed to be deferred until stage 3.

35 . I am satisfied that those elements that are contained within stage 1 are substantially different in both a qualitative and quantitative fashion to those elements in their totality envisaged in the 1993 consent. It is true to say, as Mr Galpin noted, at par 7 of his written submissions, that:

The staging per se does not result in a development different in character or substance from that approved under the 1993 consent. At the conclusion of the three stages the development as completed under the modified consent, will be materially the same as that approved under the 1993 consent. The character of the completed development under the proposed modifications or the 1993 consent is that of a retail plant nursery.


36 . I note in that context that that latter point is not contested by the council.

37 . However, the fact that in some two and a half years time there may be a development that is identical with that approved pursuant to the 1993 consent is not the end of the matter. It is clear that, on both a qualitative and quantitative basis during the intervening period, even allowing for the completion of stage 1 prior to any trading activities taking place on the site, there would be a significant difference between that which is proposed and that which would exist if condition 1 of the 1993 application were complied with. It is no mere hiatus but a substantial period of operation of both a business and construction site for at least some 18 months. I am therefore satisfied that trading, post stage 1, would also not satisfy the provision of s96(2)(a) in that it would not be substantially the same development as that approved in the 1993 consent.

38 . I was not asked specifically to consider whether a development which completed stages 1 and 2 prior to trading would satisfy the provisions of s 96(2)(a) but, for completeness on this issue, given the absence of landscaping and permanent storage bins for materials at the western end of the site, I would also not be satisfied that a proposition based on completion of stages 1 and 2 prior to commencement of trading would be satisfactory. I will deal at some greater length later with the issue of landscaping which will explain in more detail the reasons why I have reached the conclusion on that point.

39 . However, if I am wrong in my conclusions as a matter of mixed fact and law, on the characterisation of either of the alternatives pursuant to s 96(2)(a), I have turned to consider those other matters that have been raised by the council and the objectors. The council submits that post stage 1, the activities that would then be carried out on the site by the application would not be permitted as they would constitute the activities of a shop rather than of a retail plant nursery. The relevant definitions are imported by cl 6 of SREP 25 Orchard Hills from s4 of the Environmental Planning and Assessment Model Provisions, 1980 ("the model provisions"). The definitions are those of retail plant nursery and shop . Retail plant nursery is defined in the following terms:

Retail plant nursery means a building or place used for both the growing and retail selling of plants whether or not ancillary products are sold therein.

40 . Shop is defined in the following terms :

Shop means a building or place used for the purposes of selling, exposing or offering for sale by retail goods, merchandise or materials but does not include a building or place elsewhere specifically defined in this clause a building or place used for a purpose specifically defined in this clause.


41 . I was unable to find, in the provisions of s 4 of the model provisions, any alternative definition that might be of assistance to the applicant.

42 . It is clear from the terms of the plans which are Exhibit 1, that, at the conclusion of stage 1, the nature of the activities that would be taking place on the site would be an outdoor display area for plants, together with the administrative activities and retail activities undertaken in the present temporary buildings, a more formalised parking area and the storage bins in the south eastern portion of the site.

43 . In this regard I noted that Mr Galpin quite properly made a submission that during the carrying out of stage 2 the floor space that would be devoted to what might loosely be called as landscaping sales activity, would be at least approximately the same area as that devoted to the sale of plants, if not in excess of it.

44 . In this context Mr Galpin indicated a preparedness of his client to accept a condition to confine the present extraneous other sales, as I might describe them, of sleepers, letterboxes, garden ornaments, treated timber posts and the like, to the area of the temporary bin storage area.

45 . I am satisfied, however, that the dominant nature of the business at the conclusion of stage 1 would still be, as a matter of fact, on balance, a landscape supply business.

46 . A position generally analogous to that which presently arises but which would appropriately described as diametrically the other side of the coin, was considered by his Stein J in True Item Pty Limited v Baulkham Hills Shire Council , 1996 NSW LEC 155. His Honour dealt with a submission made by Mr Hale, of counsel, in which his Honour said:

Mr Hale adopts the council’s submission and appoints to the consent allowing a number of uses, a retail plant nursery being just one of them. He argues that “plant nursery” as defined in the IDO means “a building or place used for both the growing and retail selling of plants”. He submits there is an overlap with landscape supplies because landscape supplies may encompass the sale of plants. He argues that the plant nursery use adds only the growing on the land of plants to the permissible uses. Therefore, plant nursery is only a minor part of the development and one which can be severed.


47 . His Honour continued:

I reject the submission. The IDO specifically prohibits retail plant nurseries in certain circumstances (cl 14) but the storage and sale of landscaping supplies remain permissible. The sale of plants may be permissible as an ancillary minor use to landscape supplies. However, to allow a retail plant nursery under the guise of landscaping supplies, would mock the intention of the planning instrument. The instrument clearly included the separate use of retail plant nursery and prohibited it on this and other sites adjacent to designated roads. It is impermissible to attempt to slip in a plant nursery (minus the growing ) under other uses which are permissible.


48 . Conformably with the approach taken by his Honour in that case, it would not be appropriate for me to permit stage 1 when the permitted stage 1 business would trade for a period of at least 18 months pending completion of the entirety of the approval in a fashion which is not permitted pursuant to the SREP.

49 . For those reasons, if I am wrong with respect to s96, I am satisfied that the nature of the development for 18 months from the completion of stage 1 would not be permissible and that that, in itself, would be an appropriate ground to dismiss the appeal.

50 . If I am wrong on all of these matters, the issues of s 79C of the Act then comes into play.

51 . There is one matter of general issue arising out of the concerns of the objectors and the relevant instruments that is determinative in this matter and would result on a refusal on s79C grounds alone. That matter is the proposed deferral of the substantial southern boundary landscaping and the dominant portion of the landscaping in the western portion of the site.

52 . Such refusal would arise in itself, on two separate and equally valid bases. The first is that arising from the concerns of a number of the resident objectors. In this regard, there are three resident objections which are relevant – two of them significantly and one to a lesser extent. Mr and Mrs Williams of 12 Carolyn Chase live to the south east of the property across Carolyn Chase and in their letter of objection dated 21 May 2003 said, inter alia:

Heavy planting of mature sized plants on the boundaries to soften the eyesore on our view that this business is now,


is a matter that they wished to see.

53 . Secondly, a letter from the immediate neighbours to the south west (save for the intrusion of a small portion of the property at 384 Wentworth Road), a Mr and Mrs Ward, wrote on 23 May 2003 stating inter alia

If consent was given, the site would remain untidy and unsightly for up to three years. This would prove detrimental to the residents of Orchard Hills by causing reduced property values.


54 . In this regard, the issue of reduction of property values is not a matter that I take into account but I do infer from that, that they are concerned as to the view that they have of the southern boundary of the site.

55 . There was also the issue of an oblique view from the Wong residence of the southern boundary of the site, although it was obvious from the terms of the view on the site from Ms Wong’s gateway area, that such views as might be had from her property, particularly from any living areas in her property, of the southern boundary of the subject site would be substantially screened by her own vegetation. I, therefore, do not attribute any great significance to the visual impact of the southern boundary of the property on Ms Wong. However, I am satisfied that the absence of landscaping along the southern boundary of the property constitutes a sufficient adverse impact on the amenity of the residents at both 12 and 70 Carolyn Chase as to warrant refusal of the application.

56 . I turn to the issue of the view from the public domain. There is no doubt that, without the stage 3 landscaping being completed, that which would be viewed from the public domain would be intrusive into the surrounding rural residential landscape. The applicant is entitled to draw some (limited and certainly not sufficient) comfort from the nature and visual intrusion of the sheds constructed on the properties both immediately to the south of the subject site and two further allotments to the south. In this regard, I also note that Ms Erdelyi stated, in par 3.4 of her statement of evidence:

Generally, once approved development has commenced, development and works have no time limit for completion unless specifically stated in the consent conditions. Therefore, to consider a worse case scenario, site works may remain incomplete and construction huts can remain on the site for many years until funds are available for completion. The long term impacts of this scenario, especially the detrimental visual impact of an unfinished development site over many years, is an impact of approved development.

57 . That statement is an undoubtedly correct summation of the position. However, she continues by saying:

It is proposed in the subject application that these impacts will be mitigated by a staging program which will ensure that the completion of defined stages of construction at set dates, and to establish the date of completion of all works approved.


58 . The implication that I understand she seeks to have drawn from that statement is that the completion by staging is the only appropriate way of dealing with the present visual intrusiveness of that which is on the site. However (and it is certainly not appropriate for me to consider this in any substance at all in these proceedings), this is not the only possibility available to the council to ensure the tidiness and seemliness of the site. I am satisfied that, for reasons I will now deal with, the requirements of the viewing from the public domain of the site, during a staging process, would not be met and therefore the application would also be unacceptable on this basis alone.

59 . The relevant principal planning instrument is Sydney Regional Environment Plan 25 - Orchard Hills . It contains a number of aims and objectives, the relevant ones in this case are contained in cl 2(b) and (c), which read:

(b) To protect and enhance the scenic landscape quality of the area,

(c) To ensure that development does not compromise the agricultural or scenic qualities of Orchard Hills.


60 . The land is zoned 1(b) Rural and there are a number of zone objectives contained in the plan. The consent authority is required by cl 9(3) not to grant consent to an application to carry out development unless it is of the opinion that the carrying out of the development is generally consistent with, and promotes , [emphasis added] one or more of the aims of this plan and the objectives of the zone within which the development is proposed to be carried out .

61 . The relevant objectives of the Rural 1(b) zone appear to me to be to those contained in 1(b) to protect and promote [emphasis added] the scenic qualities of the rural landscape and in 1(b1) to ensure that the development of land along main and arterial roads does not detract from the rural landscape .

62 . This SREP also provides in cl 23 specific matters for consideration concerning development along The Northern Road and in that regard it requires that a consent authority in determining such an application shall consider whether the development is sympathetic with the existing rural landscape and its future development, having regard to the intended use of the land, the scale and design of buildings or landscaping .

63 . The site is also within the area encompassed by Orchard Hills Development Control Code No 1 which contains a number of objectives. It adopts the general aims and objectives of the SREP and the specific Rural 1(b) zone objectives and adds a number of other elements -the relevant ones (which I asked Mr Galpin to address in submissions) are (ii) and (iii) and these read :

(ii) To promote [emphasis added] the continuation of the open semi rural character and regionally significant landscape setting of this part of Orchard Hills particularly as viewed from The Northern Road and the M4 Motorway.

64 . I note, parenthetically, that the subject site is not subject to being viewed from the M4 Motorway.

(iii) To recognise that this part of Orchard Hills forms an important entry to the residential areas of Penrith. A careful management of development in this location is critical to conserve the values of this city entry.

65 . Clause 6 of the Development Control Code sets out a number of criteria which a consent authority must be satisfied as having been met, the relevant two of which were cited by Mr Flanigan as being:


(ii) Whether the development incorporates landscaping and site treatment which enhances this part of Orchard Hills.

(iv) Whether the development enhances [emphasis added] the important city entry qualities of this part of this part of Orchard Hills.


66 . It is clear from these elements of the planning controls that there is not merely a requirement that there be an acceptable impact by any development but there is a positive onus for benefit required from a number of the provisions that I have cited. There is no doubt in my mind that the permitting of staging, as opposed to the requirement of completion before trading activities, does not satisfy the requirement of a positive benefit in satisfaction of those clauses as a result of the requirements for this to occur.

67 . I am also satisfied - even if a lower test were appropriate (that is whether there was an acceptable impact) - that the absence of landscaping, particularly along the southern boundary and the portions of the embankment towards the roundabout, would not constitute an acceptable impact.

68 . The orders of the Court therefore are:

1. The appeal is dismissed;
2. Application pursuant to s96 of the Environmental Planning and AssessmentAct 1979 to modify the conditions of consent to development application No. 63/93 for a proposed retail plant nursery development at 2006-2012 The Northern Road, Orchard Hills, (being Lot 40 in deposited plan 835672) is refused; and
3. The exhibits, with the exception of Exhibit A, may be returned.
Tim Moore
Commissioner of the Court