Koertge v Manly Council

[2007] NSWLEC 627

Land and Environment Court

of New South Wales

CITATION:	Koertge v Manly Council [2007] NSWLEC 627
PARTIES:	Applicant: Matthew Koertge and Karina Vallins Respondent: Manly Council
FILE NUMBER(S):	10770 of 2007
CORAM:	Roseth SC
KEY ISSUES:	Development Consent :- variation of consent concerning species of trees
DATES OF HEARING:	26/09/2007
EX TEMPORE JUDGMENT DATE:	26 September 2007
LEGAL REPRESENTATIVES:	Applicant: Mr I Hemmings, barrister instructed by Mr J Hones, solicitor of Hones LA Hood Respondent: Mr M Staunton, barrister instructed by Mrs L Finn, solicitor of HWL

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

26 September 2007

10770 of 2007 Matthew Koertge and Karina Vallins v Manly Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Manly Council (the council) of a s96 application to vary a condition of a consent granted by the council on 2 September 2003 in respect of 2A Woodland Street, Balgowlah Heights.

2 The condition in question is a notation on the landscape plan LSCAPE-CC dated March 2003 referring to planting in the backyard describing it as a “species which has a mature height of 3 metres”. The applicant requests this requirement to be changed to “a species or hedge which does not exceed, or which is maintained, to a height of 3 metres above existing ground level”.

3 The applicant is willing to insert a new condition requiring a covenant on the title that obliges owners to maintain the height of the trees at 3 metres. The council thinks that a covenant is inappropriate.

4 The applicant has planted around the periphery of the back yard the species Cupressocyparis leylandii (Leyland Cypress). The applicant’s expert, Ms Narelle Sonter, and the council’s expert, Mr David Ford, agree that Leyland Cypress is a species that normally grows to 10 metres, though in this case the conditions are so constraining that the trees are unlikely to reach more than 4 to 5 metres.

5 During the site inspection I heard the evidence of three neighbours. Ms Janette Harasta, who lives at 4 Woodlands Street, immediately to the north of the site, is concerned about the height of the Leyland Cypresses blocking her views and making her access difficult. She represented also the southern neighbour, Mr Jason Ho, who lives at 2 Woodlands Street. Mr Ho would not lose any views; however, his concern is with too much shade on his garden. Ms Joy Battaglia, who lives at 6 Woodlands Street, had similar concerns to Ms Harasta. Mr Angus Robertson, who lives at 11 Adrian Place, and who represented also the Reverend Graham Perry of 10 Adrian Place, said that the concern of both of them is loss of privacy. They would therefore be happier with trees on the rear (eastern) boundary that reached a height of 5 metres. Ms Sonter and Mr Ford agreed that the Leyland Cypresses planted along the rear boundary would achieve about this height. Mr Robertson and Reverend Perry would like the 5 metre high planting to return along the northern boundary for a distance of 4 metres from the corner.

6 The parties have agreed that the existing planting along the backyard section of the northern boundary should be replaced by one of three species specified by the council’s arborist, Mr Ford. They also agreed that along 4 metres of this boundary at its eastern end, the existing planting should remain. They also agreed that along the rear (eastern) boundary the existing planting should remain. They are in dispute about whether the existing planting may remain along the backyard section of the southern boundary. It is only on the planting on this boundary that I am required to reach a decision.

7 In my opinion, the existing planting along the backyard section of the southern boundary should be replaced. I note that the experts agreed in their report that the trees are likely to reach only 4 to 5 metres. However, this is because the location into which the trees have been planted is so confining that the trees are unlikely to survive beyond 8 to 10 years, and any trees that might grow to 4 to 5 metres are likely to fall over and die.

8 In their joint report the experts agreed that in normal circumstances the Leyland Cypress grows to 10 metres. Mr Ford agreed that, on occasion, it might grow to 20 metres. Ms Harasta thought that it might grow to 30 metres. I take judicial notice of the fact that popular perception is that the tree may grow to 30 metres. What presently exists along the southern boundary is a row of trees that may normally grow to well beyond 10 metres, are planted in such an unhospitable location that they are likely to fall over when they reach 5 metres, are likely to die within 8 to 10 years anyway, and have to be continually hedged at the maximum height of 3 metres. Moreover, they have been planted in contravention of the approved landscape plan that requires trees that do not grow to more than 3 metres. This is hardly an ideal solution or one that the Court should impose.

Orders

1. The appeal is partly upheld.

2. Consent 638/01 issued by Manly Council on 2 September 2003 is modified as follows:

Delete Condition 1 and replace it with Conditions 1 and 1A.
1. This approval relates to Drawing/plan Nos 1 to 8 dated May 2003, DA9 received by council on 27 July 2003 and LSCAPE-s96 August 2007 (as amended by Condition 1A).
1A(i) The existing Leightons Green along the southern boundary starting at the rear eastern boundary and continuing for a distance of 23 metres west shall be replaced by any of the following:

· Camelia sasanqua “Star Above Star”;

· Photima “Red Robin”

· Syzigium “Aussie Boomer”.

(ii) All landscaping on the southern boundary shall be maintained at a height not exceeding 3 metres above the existing ground level.
(iii) The Leightons Green shown on landscape plan (LSCAPE-s96, August 2007) on the northern boundary shall be maintained at a height not exceeding 3 metres above existing ground level.
(iv) The Leightons Green shown on the landscape plan (LSCAPE-s96 August 2007) on the eastern boundary and extending for 4 metres in a westerly direction along the northern boundary shall be maintained so as not to exceed a height of more than 5.5 metres above existing ground level.
(v) The plantings on the northern boundary as shown on the landscape plan (LSCAPE-s96 August 2007) as “Camellia” must be extended in an easterly direction to a point 4 metres from the eastern boundary. The plant species used in that location may b e any of the following:

· Camelia sasanqua “Star Above Star”;

· Photima “Red Robin”

· Syzigium “Aussie Boomer”.

3. The exhibits are retained.

___________________
Dr John Roseth
Senior Commissioner