Bakamovic v Manly Council

CASES CITED: Windy Dropdowm Pty Ltd v Warringah Council [2000] NSWLEC 240

APPLICANT Mr T Sattler, solicitor SOLICITORS Sattler & Associates LEGAL REPRESENTATIVES: RESPONDENT Ms K Bracks, solicitor, SOLICITORS Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT This decision was given extemporaneously. It has been revised and edited prior to publication . Background 1 This appeal is against council's refusal of a section 96(A) modification to a substantially constructed two-storey dwelling at 66B Ponsonby Parade, Seaforth. This dwelling house is part of an overall redevelopment of the original lot, which involved the demolition of an existing dwelling and the subdivision of the land to create an additional 2 battleaxe shaped lots.

2 The dwelling has been constructed on the new Lot 1, which is battleaxe shape and has an area of 709 sq m. It is encumbered by a transverse drainage easement 1.8 m wide, containing a 900 mm pipe.

3 According to the documents presented the Court, there has been considerable communication between the parties during the progress of this development. Insofar as the approved dwelling is 2-storey's, some minor amendments were proposed to the upper balconies and roofline, which appeared generally acceptable.

4 However, the principal contested issue concerns the merits of the lower ground floor, which has been constructed. The approved lower ground floor consisted of 2 bedrooms (denoted bedrooms 4 and 5), a bathroom, double car garage, a set of stairs connecting to the upper level and an undercroft area to the rear (north). 5 The s 96 Amendment extends the garage and converts the bedrooms into a rumpus room with separate external entry, together with infilling the undercroft area to allow an additional 2 rooms (with bedroom potential), a laundry, store and bar area off the rumpus room, which was originally designated bedrooms 4 and 5.

6 The council contends that application should be refused because these amendments result in a development, which is not substantially the same as approved. Also, the amended proposal is now non-complying in terms of the FSR controls.

7 Another issue concerned the proximity of the eastern walls of the building to the existing drainage easement, in terms of the alignment of the existing pipeline and any bearing affects from the new dwelling. Whilst this may have an influence on the final approval of the dwelling, it is not part of the issues raised in connection with the subject section 96A application. Planning controls o Manly Local Environmental plan (LEP) 1998: The site is in Zone No. 2 and the proposal is permissible with council consent. o Manly Development Control Plan for the Residential Zone 2001, Amendment 1 o Manly Development Control Plan for Energy Efficient Buildings 1998

The evidence 8 Evidence on behalf of council was presented by Mr N Islam, council's principal planner, who is a qualified architect and planner. Mr K. Bakmavovic, a graduate architect gave evidence for the applicant.

9 Mr Bakamovic's position is that while the undercroft area was approved on an open basis, nevertheless its rear (north) wall was approved to provide protection from drainage inflow and other impacts of the higher-level adjoining lot. Also, this undercroft area is covered by the first level terrace. Therefore the enclosure of this area is in effect an infill within the approved building footprint and does not exert any adverse impact on adjoining property and there has been no objections raised by the neighbours, to warrant its refusal. 10 In response to the issue concerning increased FSR, he relies on the provisions of the Manly LEP, which adopted the Model Provisions with definitions for the various area components of the FSR calculations (i.e. excludes inclusion of garage area). He also relies on the final survey area of the lot, being 709 sq m, which includes the access handle. Based on these assumptions, including the deletion of the garage area, he calculates that the amended dwelling will have an FSR of 0.43:1, thereby complying with the current numeric controls and also satisfying the relevant objectives.

11 Against this, Mr Islam says that the lower ground floor is not substantially the same as approved, because the additional rooms lead to a significant increase in density and intensity of use. This will likely adversely impact on neighbouring properties, particularly No. 66, considering the proximity of the common boundary and likely increased usage of the lower ground floor and associated open space off the rumpus room. Furthermore, he says the amendments are unsatisfactory because it results in a non-complying development by exceeding the prevailing FSR control of 0.45:1. He calculates the amended FSR of 0.56:1.

12 Mr Islam says that the current approach to FSR calculations depends firstly on the LEP, wherein cl 3 (1) (b) of the Aims and Objectives state that: to give Council greater responsibility for environmental planning by creating only broad controls in this plan and leaving more detailed local environmental planning provisions in development control plans provided by Council. 13 Accordingly, the Manly DCP is subdivided into 7 different sub-zones, each with different density requirements. The subject site is located within Density sub-zone 5, where the maximum permissible FSR is 0.45:1. Also, floor area is defined in the Manly DCP as: Floor area means the sum of all areas of a building or building on the site within the outer face of external enclosing walls, or in the case of carport the outer face of support structures, measured at a height of 1400 mm above each floor. Floor area includes garages and carports. It does not include … 14 A significant difference in the approach of the two experts, is that the DCP approach requires inclusion of the garage area as part of floor area in the FSR calculations.

15 Another variation concerns the site area, which the DCP defines as: Site area means the area contained within the boundaries of the site on a horizontal plane, but excluding the area of any access handles to the site.

16 The FSR controls are contained within section 3.3 of the DCP, including the following: 3.3.1 Objectives a) To control the bulk of buildings. b) To ensure that the scale of development does not obscure important landscape features. c) To be consistent with the existing and desired character of the residential areas. d) To minimise disruption to views, loss of privacy and loss of sunlight to existing residential development as well as proposed development. e) To provide sunlight access to private open space within the development and maintain adequate sunlight access to private open spaces and habitable rooms of adjacent dwelling .

Conclusions 17 Having considered the evidence, the submissions and undertaken a view, I note Mr Sattler's submission that the ground floor amendments are substantially within the approved building footprint and accordingly do not create any adverse impact on adjoining properties, from which there has been no objections. As the amendments then result in a better planning outcome, in terms of utility of the additional living space, then the appeal should be allowed.

18 However, Ms Bracks submissions are that the proposal it is not substantially the same as approved because of the increased floor space, which results in its non-complying status, based on the correct application of the controls, contained within the DCP. She also referred to the line of authority in Windy Dropdowm Pty Ltd v Warringah Council [2000] NSWLEC 240, where His Honour Justice Talbot stated in par 27 that: 27 A practical purpose of s 96 is to provide an opportunity to deal with any anomalies in design unforeseen at the date of grant of development consent or, as the history of the legislation suggests, to legitimise partial changes that do not have the effect of radical transformation. The original concept of the modification of the details of consent appears to have been reintroduced by s 96(1), although not in the same terms…

32. Moreover, the broad construction of s 96 leads to a practical result that enables a consent authority to deal with unexpected contingencies as they arise during the course of modification of development or even subsequently, provided of course that the development to which the consent is modified relates is substantially the same development. 19 Considering then that the application before the Court is a s 96 modification application, the following tests apply: + is the development to which the consent as modified relates, substantially the same development? + has the modification been notified and objections considered? + what are the merits of the proposal? 20 With regard to the first question, it seems to me that the predominant element of the approved development is a 2-storey dwelling. Taking a reasonable approach then, I note that the amended proposal is contained substantially within the approved building footprint, and even though the internal lower ground floor configuration has altered significantly, nevertheless I do not consider this alteration to represent a radical transformation. Therefore I am satisfied, that the modifications relate to substantially the same development. Although I note that the degree of changes are unlikely to have resulted from "unexpected contingencies".

21 The next question involves consideration of objections. In this regard, I note that the proposed modifications have been notified and no objections made. However, in the circumstances I give this little weight, particularly in respect of the neighbouring properties, who may wish to obtain similar benefits, in terms of merit assessment of development of their properties.

22 It is then apparent to me that the merit assessment of the modifications is the threshold issue. In this regard, I accept the submissions presented on behalf council that the correct approach is to apply the provisions of the LEP (1998), which consequently relies on the detailed development controls in the DCP (effective from 16 June 2003). On this basis the maximum permissible FSR is 0.45:1.

23 Accordingly, I rely on the evidence of Mr Islam, based on his extensive planning experience at Manly, that this represents the current practice for calculation of FSR in the area. Consequently I reject the applicant's approach that the LEP calls up the Model Provisions, in respect of FSR calculations.

24 This being the case, when the enlarged garage area and the battleaxe handle area is deleted, results in a non-complying FSR of 0.56:1. This represents an increase in the order of 24%.

25 Notwithstanding this, I have considered the applicant submissions that, even though there is an increase in floor area, the modified proposal still meets the objectives for the FSR development control.

26 But Mr Islam says that the increased floor area results in a likely increase in the density of the area, not envisaged by the controls. The allowance of this additional and reconfigured floor area enables more intensive use of the lower ground floor with potential for separate occupation. This is consistent with his inspection of the property, where he observed that the lower ground floor was being configured for separate living, in accordance with and he attached photos taken on the site inspection.

27 Accordingly I accept Mr Islam's opinion that the additional floor space is likely to result in a significant reconfiguration of the approved ground floor, which will intensify use of open space areas, particularly that in close proximity to the neighbouring No. 66.

28 In the ultimate, I do not accept the applicant's argument that the increased floor area should be allowed because of the absence of adverse environmental impacts of neighbours and the fact that it results in an improved housing outcome for the property owners.

29 Instead, it seems to me that the broader public interest is well served by confidence in application of current planning controls. Such controls in DCP can be changed to reflect public expectations for the area. In this case, the Manly area has been divided into 7 zones with respective densities, which is by a FSR of 0.45:1 for the subject Zone 5. This defines the type of building envisaged by the controls in order to satisfy the objectives including: (c) to be consistent with the existing and desired character of the residential areas.

30 Accordingly, I am not satisfied that this modification which results in an increase in the FSR, in the order of 24% and turns the development into a non-conforming development satisfies this objective. In my assessment, the approved, complying development satisfies this objective.

31 With regard to the drainage easement, it appears from Mr Islam's evidence that the building may have been constructed closer to the pipeline than originally envisaged. However insufficient detailed evidence was presented to the Court on this matter, but in any case it has little bearing on the outcome of the subject appeal.

32 For these reasons then, I do not consider this s 96 modification merit consent. Court orders 1. The appeal is dismissed. 2. The s 96 Modification for a dwelling at 60B Ponsonby Parade, Seaforth, is refused. 3. The exhibits may be returned except for Exhibits 1, 2, 8, A and B.

      R Hussey
      Commissioner of the Court
      Rjs/ljr

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