Perrin v City of Mitcham No ERD-01-776 [2002] SAERDC 29 (24 May 2002)

Last Updated: 24 June 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Mosel

Hearing

04/03/2002, 06/05/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development application to construct a fence - City of Mitcham - Colonial Light Gardens State Heritage Area - consent refused by the Council - fence constructed - merits appeal - Section 84 proceedings instituted and appealed - directions therein suspended - control of fencing a recently introduced planning instrument in the area and Principle 22 afforded weight in the contribution to heritage value - design of fence inappropriate and sufficiently at odds with the relevant provisions of the Development Plan to support Council's refusal - appellant provided opportunity to amend proposal - amendment received and found acceptable in the circumstances - provisional development plan consent granted - directions in Section 84 Notice further suspended to enable parties to consider most appropriate way of resolving action 777/01.

• Development Act 1993 ;
• Environment, Resources and Development Court Act 1993 , referred to.
• Kouflidis and Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321;
• City of Mitcham v Freckmann [1999] SASC 234; (1999) 74 SASR 56;
• Isaacson v City of Mitcham PAT No.322 of 1991, considered.

Representation

Appellant: ROBERT & DOREEN PERRIN
Counsel: MR J LEVINSON - Solicitors: JAMIE BOTTEN & ASSOCIATES

Respondent: CITY OF MITCHAM
Counsel: MR G MANOS - Solicitors: MANOS & ASSOCIATES

ERD-01-776

Judgment No. [2002] SAERDC 29

24 May 2002

ROBERT & DOREEN PERRIN

v.

CITY OF MITCHAM

ERDC No. 776 of 2001

[2002] SAERDC 29

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This appeal concerns the construction of a front fence in the Colonel Light Gardens State Heritage Area. The land upon which the fence is proposed is situated at 14 Martlesham Crescent, Colonel Light Gardens and is owned and occupied by Mr and Mrs Perrin ("the appellants").

2. By development application (undated) registered on 17 April 2001, Mrs Perrin applied to the Council of the City of Mitcham ("the Council") to construct the fence. The application was accompanied by a site plan, a crude fence layout plan and an image intended to represent the style of the metal panels to be placed in between the brick pillars. Upon receipt of the application, the Council classified the application as a Category 1 development. Having considered a report prepared by one of its planning officers, which report contained, among other things, a report from Heritage SA, the Council refused the issue of provisional development plan consent.

3. Council's decision and the reasons for reaching that decision is set out in its decision notification form, which form was tendered to the Court as folios 14 and 15 of the Council's book of documents (Exhibit R1). The grounds for refusal are in the following terms:-

• "The design of the fence does not meet Principle 22(c) and (d) of the Development Plan zone provisions for State Heritage Area (Colonel Light Gardens).

• The height of the fence exceeds 1.2 metres and does not meet the design intent of Table Mit/5 for a front boundary fence.

• The proposed 'spear head' to the fence panel does not meet the requirement of Principle 22(c). It is neo-Victorian in character and does not reflect the original development in the 'Area'."

4. Mr and Mrs Perrin, being aggrieved by this decision, appealed to this Court. There being no settlement reached at the conference held pursuant to Section 16 of the Environment, Resources and Development Court Act 1993 the matter proceeded to hearing. Mr Levinson appeared for the appellants and Mr Manos for the Council. The Court received several exhibits and heard evidence from Mr Perrin, and Mr Danvers and Mr Weidenhofer, both of whom are consulting architects and who both specialise in heritage and conservation architecture. Mr Weidenhofer is also a heritage adviser to Heritage SA in relation to State Heritage Areas. He also acts in a similar capacity to the Council.

5. A fence, very similar to the one proposed in the development application, had been constructed prior to the submission of the development application. As a consequence, the Council issued a notice pursuant to Section 84 of the Development Act 1993. The notice, among other things, directs the removal of the fence. The notice is directed to Mr and Mrs Perrin who have appealed to this Court (Action No.777/2001). The parties have agreed that Action No.777/2001 be dealt with following a determination of the Court on the merits of the proposal before it and the directions in the notice have been suspended accordingly. It is established law that, in the event that development for which approval is sought has been undertaken it neither advantages nor disadvantages the appellant: Kouflidis and Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321.

6. In a letter to Manos & Associates, Mr Levinson particularised the details of the fence:-

• "The fence and pillars will be located on a concrete plinth of 150mm in depth;

• Five brick pillars that are irregularly spaced will be constructed to a height above the plinth of 1500mm and a height above the pavement of 1650mm. The pillars will be located one each at the corners of the front boundary of the allotment with the two side boundaries of the allotment, another pillar located at the edge of the driveway (with one of the corner boundary pillars forming the other side of the driveway) and two other pillars either side of a smaller garden path gate;

• The pillars will be constructed of red brick matching the bricks used in the dwelling and black mortar also matching that used on the dwelling;

• Each pillar will have a flat capping consistent with the verandahs of the house;

• A black powder coated steel fence grill with uprights drilled through two flat bars;

• Each upright rod of the fence grill will alternate in height (with one upright finishing above the top bar, the next finishing between the top bar and the lower bar and so on);

• Atop each upright will be a simple spearhead;

• The total height of the steel grill will be around 1.5 metres."

7. As I have said, the fence proposed is similar to that already constructed on the subject land. Relatively minor alterations, involving the lowering of the pillars by two or three brick courses, will be necessary to render the "as built" structure in conformity with the proposal now before the Court.

8. That the fence so proposed is "development" within the meaning of the Development Act is not in question. However, an understanding of the development control framework will assist in the appreciation of the planning context. The subject land is within the Colonel Light Gardens State Heritage Area ("the Area"). By virtue of Section 4 of the Development Act the Area is otherwise defined as a State Heritage place. Section 4 of the Act also defines "development" in the following terms:-

" "development" means-

.....

(e) in relation to a State heritage place-the demolition, removal, conversion, alteration or painting of, or addition to, the place, or any other work that could materially affect the heritage value of the place; or ....."

9. A fence, of any type, might be an "addition" to the place and therefore, "development". However, Regulation 7A of the Development Regulations establishes the means by which acts and activities are excluded from the Area. The acts and activities so excluded are prescribed in Schedule 3A of the Regulations. Item 4(1)(e) of Schedule 3A is in the following terms:-

"Sundry minor operations

4. (1) The construction, reconstruction, repair or alteration of, or addition to, any of the following (including any incidental excavation or filling):

.....

(e) a fence not exceeding two metres in height (measured (if relevant) from the lower of the two adjoining finished ground levels), other than-

(i) a fence situated on the boundary of the relevant allotment with a road (other than a laneway); or

.....

(iii) a masonry fence that exceeds (or would exceed) one metre in height (measured (if relevant) from the lower of the two adjoining finished ground levels); or ....."

10. Therefore the proposed development is not excluded from the provisions of the Act by virtue of (i) and (iii) of Item 4(1)(e) and is thus "development" within the meaning of that term in Section 4.

11. The subject land is situated in the State Heritage Area (Colonel Light Gardens) in the Development Plan for the City of Mitcham. No forms of development are complying in the Area. Furthermore, a fence is not listed as a non-complying form of development in Principle 50 in the Area (see also Regulation 8). A proposal for a fence, not of a type excluded by Schedule 3A, thus falls for merit consideration and is to be assessed against all relevant provisions of the Development Plan.

12. The Area has two objectives and is supported by 51 principles. The objectives are as follows:-

"Objective 1: An 'Area' containing the Colonel Light Gardens State Heritage Area in which the heritage value and integrity of the original three dimensional garden suburb design of Colonel Light Gardens is conserved and reinforced."

"Objective 2: An 'Area' primarily for detached dwellings, together with various community and commercial activities that reflect the original land use intent of the garden suburb design in accordance with the Policy Areas shown on Maps Mit/27, 28, and 31."

13. Below are those principles having direct relevance to the merits of the proposal before the Court:-

"1 Development should reinforce and complement the desired character and heritage value of the 'Area'."

"4 New development should be compatible with the character of nearby residential development and undertaken so as to substantially retain the heritage value of the existing building."

"7 New development should be undertaken using complementary materials, roof pitch and form, fenestrations and verandah detailing and use of decorative elements which are characteristic of the 'Area'."

"22 Fences should meet the following requirements:

(a) fences along the street boundaries of properties, and between the front wall of a building and the front street boundary, should be of a height and/or style which does not obscure views to the building;

.....

(c) designs and materials for fences should be consistent with the predominant period of original development in the 'Area'. Square profile sheet metal materials are not appropriate;

(d) fences should comply with the conditions set out in Table Mit/5."

14. Table Mit/5 referred to in Principle 22(d) above provides the following guidelines for fences along front boundaries:-

"1. Open style crimped wire or woven mesh or similar not higher than 1.2 metres; or

2. Solid style brick, stone, timber, galvanised iron, or colour coated iron with ripple or corrugated profile, open wire, or brush not higher than 1.0 metre."

15. The Area provisions are given meaning and context with text that follows the Area objectives, which text deals with matters under the following headings: "Historical Development", "Existing and Desired Character" and "Statement of Heritage Value". This text provides one basis for distilling the intent and desired character purpose of the zone and its provisions (see City of Mitcham v Freckmann [1999] SASC 234; (1999) 74 SASR 56) and gaining an appreciation of the "basic roots" of the zone, which term was used by His Honour Judge Roder in Isaacson v City of Mitcham PAT No. 322 of 1991. All of the text might be regarded as relevant. However, it appears to me that the following passages are most relevant to the matter before the Court:-

"Historical Development"

"In June 1915 the State Government purchased the property 'Grange Farm', south of Adelaide, to establish a 'model garden suburb'. Planning for the area was guided by the garden city movement principles which aimed to improve the lifestyle and residential environment of all classes of people and Colonel Light Gardens clearly reflects those principles in its design.

.....

The garden suburb included radial street patterns, street reserves and gardens; wider main streets and narrower streets for residential areas which discouraged through traffic; zoning of areas according to their best use; designated residential and commercial areas; utility ways for sewerage, gas mains and power cables; allotments with wide frontages and space for recreation and gardening.

Development progressed first in the north east section of the suburb in1921. House styles reflected the popular preference for Californian bungalows (although a number of neo-Tudor homes were also later constructed).

In June 1924 development accelerated with the initiation of a mass housing project, the 'Thousand Homes Scheme'. The central and southern sections of the suburb plan were remodelled to accommodate 363 houses. Farming properties on the western side of Goodwood Road were purchased for a further 332 houses. By 1927 the Garden Suburb's initial development was complete. ....."

"Existing and Desired Character"

"The principal elements of the original plan of the 'garden suburb' forms the essential character of the 'Area'. The essential elements that contribute to the heritage value of the 'Area' are summarized below:

.....

• the dominant landscape character and park-like setting created through extensive formal street and reserve planting and front gardens of housing aligned to the street;

.....

• a carefully conceived pattern of roads, parks and other spaces framed by trees and buildings, designed to create unfolding sequences of attractive and varied spaces and terminal vistas."

"Statement of Heritage Value"

"The suburb of Colonel Light Gardens is significant for the following reasons:

• it exemplifies the theories of town planning of the early 20th century based on the Garden City concept, and is considered the most complete and representative example of a Garden Suburb in Australia, combining both town planning, aesthetic and social elements into a coherent plan. The public and private spaces of the suburb meld to create a distinctive three dimensional suburban design.

• it represents the best work of Charles C Reade, who was the first appointed Town Planner in Australia and South Australian Government Planner from 1916-1920. Reade was the leading exponent of the Garden City Movement to practise in Australia.

• it is the repository of the majority of houses built under the mass housing programme of the Labour Government of 1920s known as the Thousand Homes Scheme and became the area identified with the Scheme. International visitors were taken to view the housing developments at Colonel Light Gardens during the 1920s.

• it contains a homogeneous style of residential architecture representing the particular workingman's house idiom of the mid 1920s, developed from the Californian Bungalow design.

• it is the embodiment of other, more ephemeral social concepts of the 1920s such as 'post war reconstruction', 'home for returned soldiers' and 'community spirit and self help' which lead to the creation and development of a community."

16. Council Wide Objective 10 and Principles 129, 131, 132 and 139 are also of some relevance.

17. Mr Manos, in his submissions to the Court, referred to Ms Christine Garnaut's book entitled "Colonel Light Gardens - model garden suburb" and the findings of His Honour Judge Roder in Isaacson v City of Mitcham (supra) in support of the Council's case. He did so for the express purpose of emphasising the role that fences play in heritage value of the Area. He also called Mr Weidenhofer to provide expert evidence. Mr Weidenhofer's statement drew upon Area Principles 1, 7, 15, 22(c) and 22(d) in support of his evidence, which evidence may be summarised thus:-

•	The subject land is situated within one part of the Area set aside for the Thousand Homes Scheme which, according to Ms Garnaut was Australia's first mass housing project.
•	Based on photographic evidence and Mr Weidenhofer's knowledge, all dwellings within this scheme used crimped woven wire fencing on timber posts and rail framework. Such fencing, as evident by remnant structures, were typically lower than 1.2 metres. The proposed height of the fence is therefore uncharacteristic in nature and style.
•	The use of metal spearheads attached to the vertical bars are also, in Mr Weidenhofer's opinion, uncharacteristic of the period. He is not aware of any precedent originally used in the Area which bears this type of motif.

18. In all, Mr Weidenhofer views the proposal as a fencing style that is foreign, and "contrary to the physical and intangible qualities that contribute to the heritage value of Colonel Light Gardens". Mr Weidenhofer also provided his view as to the intent of the Development Plan in respect of the heritage value of the Area.

"The intent of the Development Plan is to conserve the heritage value of Colonel Light Gardens. Part of that heritage value relates to the retention and reinforcement of the open nature of the streetscape incorporating the front gardens of the dwellings within the suburb. For this reason the Development Plan specifically nominates maximum heights for front boundary fencing. Substantial variance from these heights reduces the contribution that dwelling front gardens make to the overall streetscape "garden" quality, because the gardens are screened, either partially or wholly, from the street."

19. His conclusions were supported by his oral evidence. When Mr Levinson put to him a proposition that the original development of the Area would most likely have incorporated a range of fencing types he disagreed. The transcript records the following questions and answers:-

"Q. Would you agree that there is a theme in terms of architectural style but, within that theme, there is a certain degree of variation.

A. Of the thousand homes?

Q. Within Colonel Light Gardens suburb; within this zone.

A. There is certainly variation in dwelling styles and periods of construction.

Q. There's a range of fence heights; there's a range of styles; there's hedges; there's masonry with wire.

A. Currently there, yes.

Q. Indeed there would have been much, much earlier in the development of this area, from the 1920s, the 1930s, onwards.

A. From the evidence that I know of, no. There was a marked degree of consistency and I would perhaps qualify that by saying that my understanding of the early development within the suburb looked to avoid ostentation on front fencing." (Transcript p73)

20. With respect to Principle 22 Mr Weidenhofer said this:-

"A. Certainly Principle 22 is not intended to reinstate every fence as crimped wire and timber post and rail. The intent is to address the question of height and the reason for that is to reinforce the open nature of the streetscape, such that the defining edges to the streetscape is rather the dwelling, or the dwelling façade, rather than the front boundary, and the mechanism to achieve that is by control of building - in this case, fencing. As I am sure the court is aware, planting is not controlled." (Transcript p82-83)

21. Mr Levinson's submissions to the Court asked that the appeal be allowed. There were several thrusts in his submissions that are central to his case. Firstly, he submitted that it is important for the Court to glean from the Development Plan the essential heritage elements that its provisions seek to preserve. Secondly, insofar as it relates to this matter, Mr Levinson submitted that it is the openness of the Area and visual access to the gardens that is of most importance. In support of this submission he drew upon the matters listed under the text heading "Existing and Desired Character" following the Area objectives. In this respect he noted the transparency of the fence and its design consistency and connection with the existing dwelling. Thirdly, he said that the construction of Principle 22 provides the latitude in the design of a fence consistent with the heritage value of the Area. In his view Principle 22(a) (which encourages fences of a height and style which does not obscure views to buildings) has no work to do if Principle 22(d) (which advises that fences be constructed of specific heights and materials) were to be rigidly applied. Fourthly, he submits that the findings of His Honour Judge Roder in Isaacson (supra) with respect to the future development of Colonel Light Gardens be acknowledged. In this respect His Honour said this:-

"As has been made clear the zone is not, of course, to be frozen in history. Its ability to be a place for living must not be stultified. However, changes which involve alterations to the basic roots of the concept behind the zone should perhaps only be undertaken with extreme caution so that what is already there and which has a lasting value is not in a position to be nor is in fact undermined."

22. Mr Levinson called Mr Danvers in support of the appellants' case. Mr Danvers' statement did not address specific provisions of the Development Plan. Rather, he responded to certain questions that were posed to him by Mr Levinson. Those questions, among other things, invited Mr Danvers to explore the design and heritage relationships between the fence and the dwelling and the garden suburb character of the Area. Mr Danvers' evidence may be summarised thus:-

•	Using the historical planning precepts of a garden suburb as one basis of his views, Mr Danvers opined that fences typically responded to different residential styles in the street and often responded to individual preferences and levels of affluence/social mobility and pride of ownership. This variety in styles and heights are to be expected in the Area.
•	The proposed fence may be seen as an advantage in as much as it has replaced a large hedge and, as a consequence, has "reinstated the public display of the residence and its front garden" - this being "the most important characteristic to be preserved". (Statement p6)
•	In his view, the use of brick piers and open metal panels are consistent with the garden suburb character of the locality and the proposed fence "may be seen as a relatively constrained expression of individuality when compared to many other replacement fences in the locality".
•	On the suitability of the spearheads, Mr Danvers opined that they were acceptable because of their "handcrafted quality".

23. In the end, Mr Danvers does not view the proposed fence as being harmful to the heritage value or historic character of the Area. He opined that scope should exist for the character of the Area to mature and as a consequence the height requirements in Principle 22 should be of secondary importance.

24. The purpose and intent of the State Heritage Area (Colonel Light Gardens) are articulated in its two objectives, which objectives are given further meaning and context in the text to which previous reference has been made. A close reading of the text does not provide any clear guidance about the role that fences may play in the conservation of the heritage value of the Area or in the establishment of the desired character. However, on the evidence of both experts one may make some inferences. That part of the text which speaks about homogeneous style of residential architecture, extensive formal street planting, dominant landscape character and the alignment of gardens and houses might support the Council's case, which case relies heavily on Principles 22(c) and (d). These principles seek some degree of uniformity and consistency between the range of materials to be used and the height of fences. On the other hand, Mr Danvers' views would be supported, I think, with those parts of the text which express heritage value and desired character in the context of an area accommodating working mans houses and open gardens. His views about the role the Thousand Homes Scheme played in the expression of individuality and level of affluence would also be supported in that part of the text which speaks about the importance of preserving more ephemeral social concepts. That said, the Court did not gain the benefit of an analysis by Mr Danvers of the proposal against the relevant provisions of the Development Plan.

25. It is clear however, that the objectives and supporting statements do not speak directly to the issue at hand. Furthermore, I do not think Ms Garnaut's publication is of much assistance. Certainly fences are mentioned (mainly the crimped wire type) and photographs demonstrate fencing uniformity. However, at law, it might be irrelevant since it is the Development Plan only which provides guidance to the Court.

26. The control of fencing in the Area is a recently introduced planning instrument. Before the authorisation of the amendments to the Development Plan that gave rise to the provisions of the State Heritage Area (Colonel Light Gardens) most, but not all, fences enjoyed certain exemptions. Those not exempted were the subject of, more or less, general aesthetic controls built around such concepts as "amenity", "character" and "compatibility" (refer Development Plan consolidated 13 January 2000, Colonel Light Gardens Suburb Zone). This absence of fencing control may well explain the nature of fencing that currently exists in the Area. In general they are distinguishable more by their exception to, rather than compliance with any reasonable interpretation with Principles 22(b), (c) and (d). This is an observation with which Mr Weidenhofer agrees.

27. It seems, therefore, that with the introduction of Principle 22, fences (other than those given exemption by virtue of Schedule 3A), along with several other forms of development, are afforded a higher order of importance in their contribution to the heritage value and desired future character of the Area than they were formerly.

28. It is established law that no planning provision expressed as they are in the Area is mandatory. To what extent, then, might a fence depart from that which is prescribed in Principles 22(c) and (d) and, at the same time, preserve or enhance the heritage value or otherwise encourage the attainment of the desired character? It seems that some design flexibility is available since, notwithstanding the specificity in height, style and materials provided in Principle 22(d), Principle 22(a) encourages fences along street boundaries to be of a style and/or height "which does not obscure views to the building". In saying this I am mindful that Principle 22(c) encourages the design and materials of fences to be consistent with the predominant period of the Area.

29. It seems to me having regard to the evidence that the dispute boils down to the proposed height of the fence and the use of the "spearheads". Mr Weidenhofer was very clear in his evidence in this respect. It is his view that a fence which utilises brick pillars, the design of which "borrows" from the verandah supports of the dwelling and the use of open flat bars is suitable provided the height is limited to around 1.2 metres and the spearheads removed. This approach, in his view, provides sufficient flexibility in material and design choice to construct a fence without seeking to replicate the original structure. At the same time, it is a solution that looks to the future consistency in the height/materials combination sought in Principle 22(d).

30. Having considered the evidence and having carefully weighed the pros and cons of the proposed fence against the objectives and principles and from what I saw on the view I find that the proposed fence is sufficiently at odds with the provisions of the Development Plan to warrant refusal of the proposal. The Development Plan has been recently amended by designating the locality within which the subject land is situated in a State Heritage Area. Along with this designation came very specific controls on built form. Having regard to the extent of change between the controls that exist and that which now apply and having considered - within the context of the objectives, principles and explanatory text - the role that fences play in the expression of streetscape, front gardens and views to the dwelling, I am of the opinion that Principles 22(c) and (d), which provisions speak about the design detail of fences, should be given considerable weight in the assessment. The terms of Principle 7 reinforces my view. This principle speaks about new development being undertaken using materials and decorative elements that are complementary to and characteristic of the Area.

31. I do not think that Mr Danvers' approach assists. He placed too much reliance, I think, on his notion of the garden city movement and, in particular, the social context behind that movement and ignored the specific provisions of the Development Plan, which provisions the Court must always have regard. He also ignored, I think, some of the design detail that is necessary to ensure new development properly conserves the heritage value of the Area.

32. When the objectives, principles and text of the State Heritage Area (Colonel Light Gardens) are read together, it becomes evident to me that restoration, integrity and conservation are the main thrusts. It builds in, appropriately so, sufficient flexibility to avoid the problems of mimicry or replication. Nonetheless its guidelines, particularly in respect of fences are reasonably specific and nothing was put to me to suggest that there exists sufficient scope in the circumstances to depart from them to the extent proposed. The height of the fence is inappropriate for the circumstances and the design of the metal bars as they currently stand is not in sufficient conformity with Principles 22(c) and (d) and Principle 7.

33. By memorandum to the parties dated 19 March 2002 I intimated that, as the proposal stood, the Council's decision to refuse consent is well founded. However, having regard to the matters in Action 777/2001 and the evidence of Mr Weidenhofer and Mr Perrin I invited the parties to consider Mr Weidenhofer's preferred amendment described by him as an "acceptable" solution. He suggested that the following changes would meet his agreement as heritage advisor to Heritage SA and the Council:-

•	The height of the metal panels be reduced by removing the top horizontal bar and spearheads attached thereto and the spearheads attached to the second horizontal bar.
•	The height of the brick pillars be reduced to two or three brick courses above the second horizontal bar.

34. At that time such a proposal was not before me. However, I advised the parties that I am able to say having regard to all that has been put before me, a fence of that nature would, in my view, be in sufficient conformity with the Development Plan.

35. When the matter resumed on 6 May 2002, Mr Levinson tendered an amended proposal (Exhibit A5), the effect of which is to now propose a fence designed generally in accordance with the advice that Mr Weidenhofer offered in this matter.

36. Mr Manos tendered a plan prepared by Mr Weidenhofer (Exhibit R3) which plan appears to vary from Exhibit A5 in relation to the height of the pillars and metal panels. The difference in height amounts to some 80mm.

37. As I have said previously, the design solution offered by Mr Weidenhofer is to be preferred. That said, the amended design in Exhibit A5 is, in my view, in sufficient conformity with the Development Plan. There will be no discernable difference between A5 and R3 once the fence is reconstructed.

38. Provisional development plan consent is granted for the construction of the fence as described in Exhibit A5. There will be an order accordingly.

39. Now to the matter of the appeal in relation to the Notice issued upon Mr and Mrs Perrin pursuant to Section 84 of the Development Act (Action No. 777/2001). The directions in the Notice have been suspended until the determination of the merits hearing. After hearing from the parties it is appropriate that the directions be further suspended until the callover on Friday 28 June 2002 at 9.15am to enable the parties to determine the most appropriate way to resolve that dispute in light of my decision. It is so ordered.