Kirzner v Manly Council [2013] NSWLEC 1016

Land and Environment Court New South Wales

Medium Neutral Citation: Kirzner v Manly Council [2013] NSWLEC 1016 Hearing dates: 21-22 January, 2013 Decision date: 29 January 2013 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. 45/12 for a new dwelling and pool is refused consent. 3. The exhibits, other than exhibits 1 and A, are returned. Catchwords: DEVELOPMENT APPLICATION: new multi-level dwelling, foreshore scenic protection area, height, bulk and scale, removal of tree identified as part of a tree stand to be retained. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Zhang v Canterbury City Council (2001) 115 LGERA 373 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 Category: Principal judgment Parties: Aleksandr Kirzner (Applicant) Manly Council (Respondent) Representation: Mr Graham McKee (Applicant) Mr Adam Seton (Respondent) McKees Legal Solutions (Applicant) Marsdens Law Group (Respondent) File Number(s): 11093 of 2012

Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 45/12 (the proposal) by Manly Council (the Council) to construct a new dwelling and swimming pool, at 61 Gurney Crescent, Seaforth (the site). 2The appeal was subject to mandatory conciliation on 21 January 2013, in accordance with the provisions of s34AA of the Land and Environment Court Act 1979. Mr Seton advised that the Respondent did not have delegated authority to enter into a conciliated agreement with the applicant, as the development application had been refused consent by the Manly Independent Assessment Panel (MIAP). Consequently, the conciliation conference was terminated pursuant to s34AA(2)(b) following the site inspection and the proceedings dealt with as a hearing held forthwith, pursuant to s34AA(2)(b)(i).