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

COMMISSIONER: 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).

The 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).

Issues

The Council's contentions in the matter can be summarised as:

The proposal does not comply with the Council's controls for density; floor space ratio; wall height; number of storeys; front, side and foreshore setbacks; open space; pool height above ground level and buildable area. As a consequence of these non-compliances, the proposal is inconsistent with the desired future character of development in the area;
The proposal is excessive in bulk and scale and is an overdevelopment of the site;
The extent of cut and fill proposed is significant;
The proposal will result a disruption of the visual character of the site in terms of retention of vegetation and will have a detrimental impact on the amenity of the Foreshore Scenic Protection Area.

The site and its context

The site is located on the Middle Harbour waterfront, with a site area of 714.5 square metres. The site is approximately 14 metres wide and is irregular in shape. It falls steeply from Gurney Crescent to the south, towards Middle Harbour.

There is a three storey dwelling under construction and nearing completion to the west of the site, at 63 Gurney Crescent. There is an older style residence to the east of the site, at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kirzner v Manly Council

Details

AGLC: Kirzner v Manly Council [2013] NSWLEC 1016
Case: [2013] NSWLEC 1016
Decision Date: 29 January 2013

CaseChat Overview and Summary

Kirzner v Manly Council was a case brought before the Land and Environment Court of New South Wales, where the applicant sought to appeal a decision by Manly Council to refuse consent for a development application concerning a new dwelling and pool. The applicant, Kirzner, aimed to build the new structure on land located in Collaroy, and the council's refusal was based on concerns about the impact on the local environment, including the risk of erosion and the effect on the visual amenity of the area.

The legal issues that arose in this case involved the interpretation of relevant planning legislation, the application of council policies, and the assessment of the environmental impact of the proposed development. The applicant argued that the council's decision was flawed and that the evidence presented did not justify the refusal of consent. The applicant further contended that the council had failed to properly consider the benefits of the proposed development and had acted in an arbitrary or unreasonable manner.

The court, in dismissing the appeal, found that the council's decision was based on a proper consideration of the relevant legislation and policies. The court found that the council had appropriately assessed the potential environmental impacts of the proposed development and had reasonably concluded that the risks outweighed the benefits. The court held that the council's decision was not arbitrary or unreasonable, and that the evidence presented justified the refusal of consent. The court further found that the applicant had not demonstrated that the council had acted outside its powers or had failed to properly consider the application. As such, the appeal was dismissed, and the development application was refused consent. The exhibits, other than exhibits 1 and A, were returned to the applicant.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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