Lapins-Silvirs v Manly Council

Judgment The preliminary findings of 17 August 2011 were given extemporaneously and have been edited prior to publication. 1This is an ex tempore judgment for an appeal for the property known as 13 Barrabooka Street, Clontarf. The applicants in these proceedings are seeking alterations and additions to an existing dwelling house. The subject land is steeply sloping and to the west it immediately adjoins an unmade road then Middle Harbour National Park. As such the rear boundary adjoins for all intents and purposes, the Park that provides an extensive foreshore and well-vegetated area to Middle Harbour. 2The Court heard from Ms Kerry Gordon, a consultant town planner for the council and also from Mr Swaine, a bushfire expert, and Mr Ian English, an arborist. The applicant provided an arborist's expert advice and Mr Ian Scales arborist for the applicant gave evidence to the Court. Mr English and Mr Scales also provided a joint report to the proceedings. 3It is not unusual in proceedings that come before this Court for amendments to be made through the process and this is consistent with the Courts overarching objective to resolve matters in a just, quick and cheap manner. And in this instance, there have been a number of amendments proposed by the applicant including the balconies and the setting in or increasing setbacks for various portions of the dwelling house. 4The applicant proposes the existing dwelling house be extended in a westerly direction and the subject plans clearly show the areas to be extended. The applicants argue that the proposal is very similar to approvals that have been granted for Nos 9 and 11 and they state they are not seeking to expand or incur on the line of existing development where it adjoins the National Park. The properties on the western side of Barrabooka Street adjoining the National Park are within a fire prone area as became evident during the proceedings. 5The Court must have regard to the planning provisions in undertaking its assessment. The council's local planning provisions for the subject site are contained in the LEP and DCP. 6The Manly Local Environmental Plan 1 988 is the relevant LEP and the zone objectives must be taken into account in the determination of a development application in accordance with clause 10(3). 7The subject site is in zone No 2 Residential and the objectives of this zone include:

9 December 2011 64Subsequent to the above preliminary findings the applicant prepared amended plans and I am satisfied these reflect the requirements of the above findings. Certain conditions were in dispute, namely condition 7 and 37 and the parties were called back to Court 9 December 2011 to allow the opportunity for submissions before a final determination of conditions and the issuing of final orders. 65The respondent council sought to impose a condition for the dilapidation report that I determined was unreasonable and tantamount to a refusal. Condition No 7 is amended to require the dilapidation report to be prepared by a suitably qualified person prior to the construction certificate being issued and requires demonstration that all reasonable steps have been taken to obtain access to adjoining properties. 66Condition No 37 in dispute is in respect of the pruning of the angophora floribunda located on the adjoining property at No 15-17. This is amended to require a qualified arborist on site to determine the extent of branch removal and pruning to allow the construction of the approved amended dwelling house on No 13. I determined that it is unnecessary for another arborists report to be prepared because during the hearing a joint arborists report was prepared to detail the pruning and the approved amended plans provide a greater setback to the subject tree and therefore the pruning required would be less than that contained in the joint arborists report. 67In amending Condition No 37 I have also had regard to the fact that at this stage the owner of No 15-17 has not granted permission to allow pruning from his property and all pruning therefore would need to take place from within the boundary of No 13, and as such this may not allow the branch cutting in the most desirable location as required by the Australian Standard 4373 and therefore this reference has been deleted. 68I agree with the respondent's submission that conditions need to provide certainty in the process of carrying out development. However at the same time conditions should be read in their context and not be tantamount to a refusal. I referred the respondent to the authority in the Court of Appeal judgment Botany Bay City Council v Saab Corp Pty Ltd NSWCA 308 and I have determined the conditions in Annexure 'A' provide the necessary certainty applying 'a modicum of common sense' that is required in interpreting conditions in their context. 69I am satisfied the amended plans are in accordance with my preliminary findings. 70Accordingly the formal orders of the Court are made as follows: 1The appeal in respect of the property known as No 13 Barrabooka Street, Clontarf is upheld. 2The development application submitted to Manly Council and as amended and shown in Exhibit P is approved subject to the conditions in annexure A. 3The exhibits are returned to the parties except exhibits 27, 28, 29, 33, and 34 and exhibit P. J S Murrell Commissioner of the Court ANNEXURE A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 January 2012

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