Land and Environment Court New South Wales Medium Neutral Citation: Lapins-Silvirs v Manly Council [2011] NSWLEC 1373 Hearing dates: 18 April, 11 May, 7 June, 17 August 2011 (Preliminary Findings), 9 December 2011 (Final Orders) Decision date: 09 December 2011 Jurisdiction: Class 1 Before: Murrell C Decision: 1. The appeal in respect of the property known at 13 Barrabooka Street, Clontarf is upheld. 2. The development application submitted to Manly Council and as amended and shown in exhibit P is approved subject to the conditions in annexure A. Catchwords: Development application appeal. Size, bulk, floor space ratio, wall height and setbacks and character of area. Impact on adjoining properties - privacy, overshadowing. Impact on trees located on adjoining properties. Legislation Cited: Manly Local Environmental Plan 1988 Manly Development Control Plan 2007 Cases Cited: Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308 Zang v Canterbury City Council [2001] NSWCA 167 Category: Principal judgment Parties: Mrs Maija Lapins-Silvirs (Applicant) Manly Council (Respondent) Representation: Mrs M Lapins-Silvirs (Applicant in person) Ms C Schofield, Solicitor (Respondent) File Number(s): 10060 of 2011 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: * To allow variety of housing types while maintaining the existing character of residential areas throughout the Municipality; To ensure that building form, including alterations and additions, does not degrade the amenity of surrounding residents or the existing quality of the environment; * To improve the quality of the residential areas by encouraging landscaping and permitting greater flexibility of design, both in new development and renovations; * To ensure full and efficient use of the existing social and physical infrastructure... * To encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment. 8The other provisions of the LEP that are relevant include cl 17. That is 'visual and aesthetic protection of certain land' requiring the council /consent authority to be "satisfied that the development will not have a detrimental effect on the amenity of the foreshore scenic protection area". 9The Manly Development Control Plan 2007 is also a relevant matter and focal point for my assessment. This provides a number of definitions including: gross floor areas, maximum wall height and storeys. In the preamble there are a number of objectives including: * to ensure residential development protects and conserves the natural... environment; * to encourage the retention and adaptation of existing dwellings; * to increases the availability and variety of dwellings to enable population growth without having adverse effects on the character, amenity and natural environment of residential areas; * to identify the characteristics of the residential zone and ensure protection and to develop standards and encourage that protection; * to protect amenity of existing and future residents; * to encourage ESD..; * to minimised the impact of new development including alterations and additions on privacy, views, solar access and general amenity of adjoining and nearby residences; * to ensure protection of environmentally sensitive localities; * to encourage a responsible approach in design of architectural merit that interprets and complements site characteristics, streetscape and the surrounding built and natural environment; * to ensure compliance with the objective of the standards; to encourage environmental best practice. 10In Part 3 of the DCP it states: "Council is required to apply the controls in a consistent manner while balancing the interests of the applicant with those of the community as a whole. It is therefore expected that development proposals will by and large comply with numeric controls. Any departures will not only need to satisfy the DCP objectives but it needs to be demonstrated that by Council agreeing to a variation of a standard or requirement, that a more desirable environmental outcome is achieved.' 11The subject site is relatively small, being some 472 sq m. The DCP has a sliding scale for gradients with maximum wall height within the various zones. The provisions allow for a concession to be made in the situation where sites are steep and the council argues and Ms Gordon's evidence is that the concession should not be allowed as the objectives are not satisfied. In terms of the floor space ratio of the proposal Ms Gordon calculates this to be in the order of 0.66:1. 12The objectives of the floor space ratio control are: * To assist in controlling the bulk of buildings; * To ensure the scale of development does not obscure important landscape features; * To ensure the scale of development is consistent with the existing and desired character of the residential area; * To minimise disruption to views and loss of privacy to adjacent and nearby development; * To provide sunlight access to private open spaces within the development and maintain adequate sunlight access to private open spaces and habitable rooms of adjacent dwellings. 13In terms of the controls on sites which are less than the minimum site area required in the relevant density sub zone which this particular site is, the council may consider a variation to the FSR, provided the applicant can demonstrate the objectives have been achieved. And the minimum site area for the purposes of this clause is 750 sq m. 14In terms of building height, the objectives of building height include: * To regulate the height of buildings by specifying maximum wall and roof heights * To assist in controlling the bulk of buildings; * To provide for building heights that are consistent with prevailing building heights in the locality; * To minimise disruption to views...; * To allow sunlight to penetrate private open spaces within the development site; and * To allow sunlight penetration to private open spaces and windows of living spaces of adjacent dwellings. 15The control is for the number of storeys at 3.54. Other than for medium density zones 1and 2, buildings shall not exceed two storeys unless specific physical site constraints warrant voiding this requirement. 16The setback provisions are contained within 3.6 and the objectives include: * To provide privacy; * To provide equitable access to light and sunshine; * To provide flexibility in the siting of buildings; * To facilitate view sharing; * To accommodate planting, including native vegetation and endemic trees. * To control development adjoining national parks so as not to detract from the nature of those lands * To maintain adequate space between buildings to limit impacts on views and vistas 17The controls for setbacks are the front setbacks are to relate to neighbouring properties and where it is not consistent then 6 m applies. Side setbacks are to be a third of the height of the wall and windows facing a boundary are to be setback a minimum of 900mm with living and dining areas to be setback a minimum of 3 m from side boundaries. 18The other relevant provisions relate to swimming pools and the objectives in 3,8 include: * To be located to minimise impact of noise on neighbouring properties; * located and designed to maintain privacy to neighbouring properties, * appropriately located so as not to adversely impact on the streetscape or existing character; * integrated with landscaping and * to become an emergency water resource in bushfire prone areas. 19The controls for swimming pools include relevantly: (a) swimming pools, shall not be elevated more than 1 m above natural ground level; (d) generally the setback of the outer edge, shall not be less than 1 m because water line being a minimum of 1500 from boundaries. (e) If a pool or spa is proposed to extend more than 1 m, the ground is setback to the outer of edge of the pool concourse from the side boundary must be equivalent to the height of the concourse above existing ground level... 20The provisions relating to amenity in part 4, has objectives for sunlight and overshadowing and these include: to minimise reduction of sunlight penetration, maximise penetration of mid winter sunlight...; promote passive solar access and exceed basix targets; maximize setbacks on the southern side to encourage solar penetration properties to the south; encourage modulation of building bulk to facilitate sunlight penetration. 21The controls are : (a) where an existing adjacent building has an east- west orientation, the level of solar access presently enjoyed must be maintained to windows or glazed doors to living rooms for a period of at least two hours from 9am - 3pm on June 21; (b) where solar access to windows o glazed doors of a living room of an adjacent building is currently less than two hours, no reduction in solar access to this window will be permitted. (h) Shadow diagrams are required for the winter solstice. 22In the DCP there are also objectives for privacy and security at 4.2 and these include: * to provide screening ; * to mitigate direct viewing; and * to encourage awareness of neighbourhood security. 23The controls include: * narrow translucent or obscured glass windows to maximize privacy where necessary; * when building close to boundaries, windows shall be offset from those in adjacent buildings to restrict direct viewing and to mitigate impacts on privacy; and * architectural or landscape screens must be provided to balconies and terraces to limit direct vision into adjacent properties. 24The Sydney Regional Environmental Plan was also included in the council's bundle and in essence this requires consideration of the visual impact of the proposed development when viewed from the Harbour. The development control plan to accompany the regional plan was also provided. While not a matter contended nonetheless in my assessment the proposed development will not impact when viewed from the waterway or foreshore and the LEP cl 17 provision above, on design of buildings when viewed from a national park, is also satisfactory. 25There were two objectors to the proceedings. The owner of No15 - 17 is concerned about the impact of the bulk and scale of the proposal and the fact the provisions of the development control plan are not complied with. He is also concerned about the longevity of the angophora floribunda on the southern boundary that is growing in very close proximity to the common side boundary with the subject site. The dwelling on Nos 15 to 17 straddles the two allotments. 26The owner of No 9 redeveloped this site in the last few years and he is also the current owner of No. 11 where he recently obtained an approval for a new dwelling house. At No 11 an angophora is located on his northern boundary relatively close to the side boundary with No 13. In the approvals granted by both the Court and a subsequent approval granted by the council, permission was given for the removal of this tree to accommodate the approved new dwelling house on No 11. It could be seen on site that the local area is undergoing change with new and expensive dwellings as well as alterations and additions and refurbishments of existing dwellings. 27The dwelling house on No 11 is somewhat in a state of disrepair. The owner advised however that he may not activate the current consent for redevelopment. It appears to me that in the longer term even if the current approval is not activated in the future the existing dwelling house will be redeveloped. The owner of No 11 is concerned that the proposed development will have an impact on the solar access to his northern windows and that the exceedances of proposed building to the DCP provisions are not acceptable. In his opinion the design of the building should have regard to solar access to his northern windows. He is also concerned about the impact on his angophora that is close to his northern boundary that is common with the subject site. 28The Court notes that approval was granted for the removal of the angophora at No 11. The owner has indicated that the removal of the angophora would not occur unless the development consent is activated. There is concern expressed by the owner of No 11, that the applicant must have regard to the tree on his property in terms of the design of the subject dwelling. 29The contentions that the council outlined in exhibit 6, concern the excessive size and bulk of the proposal and in this regard, s 79C(1)(c) is cited as well as cl 17 of the LEP - the zone, and LEP objectives. 30Clause 3 of the LEP contains the general objectives of the LEP as follows: 1Size and Bulk The proposed development will be excessive in size and visual bulk and is considered to be unsuitable for the site. The proposed development would have unacceptable adverse impacts on the neighbouring properties and the Foreshore Scenic Protection Area. 2Floor Space Ratio The proposal will exceed the maximum floor space ratio permitted by the Manly Development Control Plan for the Residential Zone. 3Setbacks The proposal does not comply with the side setback controls of the Manly Development Control Plan for the Residential Zone. 4Wall height The proposed wall height does not comply with the provisions of the Manly Development Control Plan for the Residential Zone. 5Tree Pruning and Impact on Landscape Character The proposed development and the proposed pruning of an angophora floribunda located on 15-17 Barrabooka Street, Clontarf will have an adverse impact on that tree and on the existing landscape character and the natural environment of the locality. 6Privacy and overshadowing The proposed development would cause loss of privacy and will result in an unacceptable level of overshadowing to the adjoining properties that is non compliant with the Manly Development Control Plan for the Residential Zone. 31I have made a comprehensive assessment of all of the evidence to the Court including the site inspections and the experts' evidence. This is an unusual case where in fact the Court revisited the site and further arborists' comments were received from both the applicant's and the respondent's arborists in joint reports. As to the trimming of the trees on adjoining properties to the north and south, the Court notes that the owners of both 15 to 17 and No 11 do not consent or give permission to enter their land for the trees to be pruned or trimmed or branches overhanging No 13 to be removed, trimmed or pruned to accommodate the dwelling on the subject site and they have stated that any trimming or branch removal must be undertaken from No 13. 32The Court this morning has been handed up a recent approval dated 27 July 2011 by Manly Council for the owner of No 15 - 17 to prune the angophora floribunda on the southern boundary. The approval is for a qualified arborist in accordance with the Australian Standard to remove branches that overhang onto the property. Manly Council Tree Assessment Form notes the subject tree to be "overshadowing of property and fire hazard" and at the time of inspection the tree looked to be "in need of treatment" . Earlier in the hearing the Court heard evidence from Mr Swaine of the risk to fire that the subject tree poses. It is noted that Mr Swaine's evidence is that for fire safety the preferred course of action would be that the tree be removed. In these proceedings the Court would not direct such action to remove the tree. It is a matter for owners of those trees to understand what their obligations and responsibilities are for bushfire protection. 33The Court in its assessment must have regard to the provisions of the development control plan and I refer to the authorities of Zhang v Canterbury City Council [2001] NSWCA 167 where development control plans must be given central focus and real consideration. At the same time Zhang notes that DCP's are discretionary in nature having regard to the circumstances of the case. That is, they are not mandatory but nonetheless, I accept the DCP must be the focal point for my assessment. This is also reinforced in the authority of Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226, where one cannot substitute other standards /guidelines but must focus on those contained in the relevant development control plan. 34In terms of the exceedances of height, having regard to the character of the area and recent approvals within the area, in my assessment the proposed development is satisfactory on a merits assessment. The slight exceedance in the height on the southern boundary is minimal and would not warrant refusal in the circumstances of this case and on a merits assessment of the application and I am satisfied the height will not create adverse impacts on adjoining properties. 35For the northern elevation, the height exceedance is minor although I note the exceedence is greater on the southern boundary where it is up to 1.38m at one point. The council indicated that the privacy screens should also be included in the wall heights. However, council's practice is that in the implementation of its DCP that privacy screens on balconies are not included in the wall height and I also accept this as standard practice. 36Nonetheless, a matter that I must have regard to in my assessment is whether there is unreasonable increased bulk created, in particular when viewed from the public domain or adjoining properties. In my overall assessment I have determined the wall height and or privacy screens are satisfactory and this issue would not warrant refusal of the application. 37In terms of the floor space ratio exceedance this provision, as is the case in many DCPs, that are not legally drafted legislation/instruments and often not written with a great deal of precision, it is important for a common sense approach to be taken in assessment of the merits. In this regard I have considered the objectives that I cited earlier for the floor space ratio and in the circumstances of this case the proposed development in my assessment satisfies the objectives and the dwelling will sit comfortably in its context and not impact on adjoining properties. In its context the bulk of the building is consistent with the character of the residential area and it minimises disruption to views and loss of privacy and maintains adequate sunlight access to adjacent development. As such I have determined on a merits assessment that the variation from the DCP is justified in the circumstances. 38It is noted that on steep land, the concession for the calculation of FSR can only be given where the objectives of the DCP are achieved and in my opinion the objectives of the DCP are achieved whether one has regard to the concession or not. I note that if the concession is allowed the development would comply. 39Often adjoining property owners may not embrace change, however, the role of the Court is to assess the reasonableness of the change in the context of the council's planning framework and s 79C of the Act. 40In terms of the objectives as I cited earlier, I have had a holistic reading of the guidelines and controls in terms of council's local planning regime and I am satisfied that the proposal is one what would not warrant refusal. And that the size and the bulk apart from an amendment that I will require is appropriate. When I look at the approvals of the development at No 11 and the subject proposal for the site, I am satisfied the character of the area is maintained by the proposed development and it will not appear as an aberration. As I stated, the floor space ratio was cited by the council's contention two and this will be particularised in the published judgment. 41The setbacks, the council maintains are not in accordance with the DCP. In terms of the northern side, it requires a setback of 3.3 m and 1 m has been proposed. And similarly, in terms of the swimming pool, council requires further setbacks in terms of the height of the swimming pool. In terms of the wall height, the council contends the proposal is excessive and in terms of tree pruning and impact on landscape character, the council says that it will have an adverse impact on the tree at 15 to 17. And in terms of the privacy and overshadowing, the council contended that the proposal would impact on No 11. 42I will now address the overshadowing matter. The overshadowing I have assessed in terms of the development control plan provisions and with the benefit of the evidence of Ms Gordon, at the end of the day, with the amendments proposed, the Court is satisfied that the solar access for No 11 is in accordance with the council's provisions although there is some uncertainty as to the interpretation one gives to the provisions. But nonetheless, the general principles of solar access are maintained. And in this regard, Ms Kerry Gordon also agreed that the solar access for No 11 was appropriate and satisfied the DCP provisions. 43I say this, because there is uncertainty as to how one interprets the DCP, the taking of commonsense view, which Ms Gordon did and having regard to the orientation of the site and the wonderful westerly orientation that all the dwellings in this area are designed to take advantage of because of also the views through to the harbour. I am satisfied that it is not a development that would not be unexpected and indeed the proposal extends no further in terms of the line of the dwelling No 11 and I consider that it is an equitable sharing of amenity and that the orientation to the west as agreed by Ms Gordon provides for the appropriate solar access that one would enjoy from these dwelling houses with this orientation and having regard to the subdivision pattern. 44It is an unrealistic expectation that one would retain solar access to a side boundary wall when in fact the line or the extension of the envelope or platform is similar and would be what is expected in this area that there is a general alignment of dwelling houses. 45In terms of the impact of the proposal on the trees located on the adjoining properties at No 11 and No 15 this has been given detailed consideration. 46In my consideration of the tree at No 11 I am of the opinion that the proposal has been designed not to require its removal and it is not unreasonable that the proposal require the tree on the adjoining property to be pruned in particular in the circumstances where there is an approval for the removal of the subject tree to allow the redevelopment of the property at No 11. Clearly, the current owner/applicant of No 11 did not consider the tree of such significance and did not design around the tree. I have determined that the proposed alterations and additions to No 13 should not be penalised when there is appropriate pruning and trimming that will allow for its longevity if it is chosen that the development consent for No 11 is not activated. 47I now move to the other side of the dwelling. That is the northern elevation of the subject dwelling and its juxtaposition and relationship with No 15-17. This adjoining property has a dwelling house erected over the two lots with an angophora floribunda on its southern side and in close proximity of the northern boundary of the subject site. The owner of No 15-17 is concerned about the impact of the development on his tree that he considers provides amenity and privacy from No 11. 48In this regard, I have considered the arborists' report to the proceedings in terms of the necessary pruning and trimming required for the alterations and additions to No. 13. The tree is be retained in the design of the alterations and additions to No 13. It is unfortunate that access is denied by the owner of No's 15-17 to allow the appropriate pruning from that property and any pruning must be carried out from No 13. However, the role of the Court is to assess the merits of the development application. 49Based on the evidence of the arborists, the tree can be retained while at the same time allowing appropriate pruning/trimming. In my assessment it is reasonable to allow pruning of the tree to facilitate alterations and additions at No 13. My preliminary findings in this matter based on my assessment of the merits of the application having regard to the tree and the amenity of the neighbour at No 15 is that the plans should be amended to increase the setback by 1.5 m which allows for the stairs underneath which is the 1.5 m from the new terrace of the rumpus room, so it be setback 1.5 m further than what is shown currently on the plans. In this regard, I am proposing that there be an amended plan that is why these are preliminary findings. Such that there will be on the level of bedrooms one and two, there is to be a setback that is already proposed and agreed by the applicant that there be a setback of 1 m for the terrace. 50For a length of 4 m, so this would in fact require a reduction or reconfiguration of bedroom two ensuite and robe, such that the area that would be less in bedroom two, would be one matter by 1.5 m. I recognise that this is not a large room as such and it may be that the applicant's preference would be for a large parents' retreat as such that would be a matter for the applicant in the reconfiguration to allow for the reduction in bedroom area two. This will also have the effect of reducing the bulk on the property at Nos 15 to 17. And in my assessment will also allow for the longevity of the tree to be maintained. 51The Court would not issue formal orders until the changes are shown in amended plans that council has the opportunity to assess that it reflects the Court's preliminary findings. This is to ensure certainty in the process. A number of other requirements of the conditions should also be included in an amended set of drawings. It is not unusual in matters before the Court for plan amendments to be made to address concerns raised by the respondent or indeed to provide a better built form outcome having regard to the context of a proposal. In this regard there has been a spirit of cooperation and the applicant has made alterations to overcome some of the council's concerns. 52In my preliminary assessment these additional requirements for the floor area to be reduced by 1.5 x 4 m and the terrace to be reduced would meet the objectives of council's controls and guidelines as articulated in the development control plan. And it has the dual benefit of also assisting in greater clearance and space for the tree in close proximity to the northern boundary. 53The presentation of the dwelling to the harbour does not concern the Court. Whilst I must assess this application on its merits against the relevant controls, the approvals at Nos 9 and 11 on the western elevations appear as a greater number of levels than the proposed three storey house. While, I recognize the sections may show compliance, they will be appear as a four-storey building. The subject dwelling will read as three storeys and in my assessment will sit comfortably within this locality of steep topography. 54The other conditions that were in contention, first of all, I will go to condition 70, which also involves the tree. The council has in fact agreed to the deletion of condition 70 that required the applicant to pay for the removal of the tree in the event of it dying. I accept Council's current position given the circumstances where there has now been approval granted by the council for the tree to be trimmed by the owner of 15 to 17. 55The condition concerning the arborist's report, that is condition 37, given the required changes to the plans, condition 37, will read to be in accordance with an arborist's report and recommendation, given that there will be a slight reduction in the footprint and floor space at that point. The level of qualification for the arborist is stipulated are and it should be left to the arborist as to how then the tree is to be trimmed. In the event that the adjoining owner at 15 to 17 grants permission to prune and cut the branches from his property at the appropriate collars and levels, then that could be considered by the engaged arborist at a later date. Nonetheless in terms of the arborist's advice trimming from the applicant's land is possible, even though it may not be the most desirable points at which the branches are cut this would not warrant refusal of the application. 56I do not consider that it is appropriate to refuse the application on the basis that permission is refused from the adjoining property owner to carry out the pruning of his tree. As given in evidence by the arborists the tree can be lopped from No 13 without entering No.15-17. With this required amendment to the plans it is now appropriate that condition 37 be as proposed by the applicant. 57In terms of the swimming pool, the applicant seeks that the swimming pool be 1.5 m from the boundary. The council later in the proceedings having regard to the survey, having regard to the retention of the existing swimming pool as a detention basin, the council agreed that the height of the swimming pool could be maintained. Also this avoids inconsistency with other conditions concerning excavation. And that the swimming pool be increased in side setback from the side boundaries on the basis of the fact that the height is to be as shown in the plans. I accept the respondent's condition that the setback from the side boundaries be 2 m to allow landscaping. In my assessment I accept Council's submission the 2 m will allow an appropriate area to accommodate ameliorative landscaping. 58The applicant sought the side setback not be increased and sought to have the size of the pool as shown. However, on balance, a 6.3m swimming pool is reasonable and can be accommodated without adverse impacts on adjoining properties or the environment. 59In terms of condition 31, Mr Swaine, the Rural Fire Services expert, has provided clarification and that is as shown in the amended conditions handed up today 60Similarly, for condition 43, the Court will require the amended landscape plan to ensure there is consistency between all sets of plans and once again this is to provide for certainty in the planning process. The other requirement it is appropriate for the updated basix certificate to be provided simultaneously as a current basix certificate should always accompany amended plans as opposed to being left to a condition of consent. 61The plans will also incorporate the amendments that had been agreed to between the parties that is the lowering of the floor by some 800 mm. And the agreed amendments to the setbacks and the balconies. 62In view of these amendments, I will allow the applicant an appropriate period of time in which to provide a set of consistent plans. That is the landscape plan, the architectural plans with the amendments that I outlined and the basix certificate. 63On receipt of the formal plans and if they are in accordance with my findings above, the formal orders of the Court will then be issued. 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