Talbert v Manly Council [2011] NSWLEC 1326

Land and Environment Court New South Wales

Medium Neutral Citation: Talbert v Manly Council [2011] NSWLEC 1326 Hearing dates: 31 October 2011 Decision date: 15 November 2011 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld subject to conditions Catchwords: Development Appeal: condition of consent relating to nil side setback Legislation Cited: Environmental Planning & Assessment Act 1979 Land and Environment Court Act 1979 Manly Local Environmental Plan 1988 Cases Cited: Zhang v Canterbury City Council [2001] NSWCA 167 Category: Principal judgment Parties: Tracey Kathleen Talbert (Applicant) Manly Council (Respondent) Representation: Applicant: Mr G McKee (solicitor) Respondent: Ms J Hewitt (solicitor) Applicant: McKees Legal Solutions Respondent: HKL Ebsworth Lawyers File Number(s): 10711 of 2011

Judgment 1COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the approval by the Manly Independent Assessment Panel (MIAP) (under delegation from Manly Council (the council)) to grant development consent, subject to conditions, to Development Application No. 159/2011 in relation to a property at Lot 1 DP 1147301, being 28A Alexander Street Manly (the site). Specifically, conditions ANS 01 and ANS04 are appealed. 2The approved development is the subdivision of a currently vacant lot into 2 rectangular shaped allotments and the construction of two semi-detached two-storey dwellings with associated pools and carports. 3The specific conditions subject to this appeal are: ANS 01 The proposed basement and kitchen walls located along the side boundaries for both dwellings as shown on the approved plans are to be setback 1m from side boundary to maintain the existing natural ground level between the side boundary and dwellings and the areas are to be suitably landscaped including boundaries adjacent to the internal courtyards. Full details demonstrating compliance with this condition shall be detailed upon the plans to the satisfaction of the Council/Accredited Certifier prior to the issue of the Construction Certificate. Reason: To ensure stability of adjoining property, provide closer compliance with provisions of Council's DCP, provide adequate separation between dwellings and maintain overland flow paths. ANS04 Retain and protect during construction street trees located on the Rolfe Street and Alexander Street frontage. No excavation should occur within 3m of the trunk of these trees. Reason: Protection of existing street trees. 4Following joint conferencing by the parties' arborists, it was agreed that the street tree in Rolfe Street, a Eucalyptus robusta could be removed and replaced with two trees of several council's nominated species. The parties agree to the protection of the street trees in Alexander Street. As a result, condition ANS04 is no longer contested and a replacement condition has been agreed (see [46]). 5The history of the application and the actions of the council are noted in the council's Statement of facts and Contentions. The development application was approved, subject to conditions, by the Manly Independent Assessment Panel (MIAP) at its meeting on 15 September 2011.