Kirzner v Manly Council

Land and Environment Court (NSW)|2007-02-15

Background. 1 The proceedings comprise the following appeals, which were heard concurrently in respect of a residential property situated at 36 Gurney Crescent, Seaforth: o 10895/2006; an appeal against council's refusal of a s 96 Modification application, o 10896/2006; an appeal against council's refusal to issue a Building Certificate. 2 On the 15 December 2004, development consent was granted for the construction of a new 3-storey dwelling house and swimming pool on the subject site. The conditions of consent required some minor changes to reduce the floor space and delete the roof terrace. Construction of the dwelling proceeded in accordance with Construction Certificate plans approved by a private PCA.

3 However, the actual construction work has involved some departures from the approved plans, which the applicant now seeks approval for. These modifications relate to the lower ground floor and concern: o enclosure of the recreation area, lounge area and ancillary room, o alteration of the bar configuration, o approval for an additional bedroom, cinema and storage room constructed as a result of over excavation of the site. 4 In opposing both the s 96 modifications and issue of the Building Certificate, Council identified the following issues, which can be summarised as; o excessive floor space ratio, o unsatisfactory provision of recreation open space, o the potential for a separate family flat occupancy, o excessive wall height in terms of the undercroft area.

Planning controls. 5 Manly LEP1988; under which the site is zoned residential and the proposal is permissible with consent.

6 Manly Development Control Plan for Residential Zone 2001. This DCP contains a number of detailed objectives which includes ensuring that residential development protects and conserves the natural and cultural environment of the Local Government Area, identifies the characteristics of the residential zone that requires protection and to develop standards that encourage the protection of the amenity of existing and future residents.

7 The DCP provides a number of design controls including those in s 3.3 dealing with floor space ratio (FSR) where the relevant stated objectives are: o To control the bulk of buildings. o To ensure that the scale of development does not obscure important landscape features. o To be consistent with the existing and desired character of the residential areas, o To minimise disruption to views, loss of privacy and loss of sunlight to existing residential development as well as the proposed development. o To provide sunlight access to private open spaces within the development and maintain adequate sunlight access to private open spaces and to habitable rooms of adjacent dwellings.

Findings. 8 Having considered the evidence put before Court and undertaken a view, I note that there is an apparent lack of clarity and consistency with the approved development plans and the Construction Certificate. Detailed checking of this aspect was not possible due to the approved development consent plans not being available.

9 Nevertheless, I am satisfied that the development consent allowed for 3 levels generally comprising: o first floor; bedrooms and ancillary rooms, o ground floor; entry, family room, dining/lounge, office and service rooms, o lower ground floor; open recreation area, terrace area, lounge area, bathroom, sauna and swimming pool. 10 The main s 96 modification concerns the creation of an additional bedroom, cinema room and storage area at the back of the lounge and bathroom areas, due to the necessity for over excavation of the site to achieve sustainable foundations. However, this additional floor space results in an FSR of 0.59:1, as compared to the allowable 0.4:1 stated in the DCP.

11 Mr Klinger, on behalf of the applicant submitted that due to this necessary over excavation, the construction of the additional rooms was reasonable because the objectives for the FSR controls were satisfied and no adverse amenity impacts were created on the neighbouring properties. Also, the location of the additional floor space in the basement area is not visible due to the topography of the site.

12 Against this, Mr Griffiths submitted that the excessive floor space resulted in an exceedence of approximately 50% of the DCP controls and constituted a different form of development to that approved because the inclusion of the additional rooms could enable the lower ground for to be used as a family flat. Also, the allowance of this additional floor space could set a precedent for other properties with similar topography. This then would defeat the intentions of the DCP to restrict FSR to the order of 0.4:1. 13 In my assessment, it is appropriate to take a broader view of the approved development, which comprises the 3 levels with the lower ground floor level predominantly comprising recreation areas for the rest of the dwelling and associated with the swimming pool. However, I do not consider that the consent contemplated the additional bedroom and cinema, which could be converted to another bedroom and the reconfigured bar area, which presents as a kitchen, so that this lower ground floor level could conveniently be used as a self-contained residential unit.

14 Therefore, permitting the use of this additional floor space (i.e. FSR of 0.59:1) results in a considerable advantage to the applicant by way of unauthorised enhancement of the development consent, over that allowed under the DCP controls ( i.e. FSR of 0.4:1). In any case, I note Council exercised discretion in granting the original consent by allowing an FSR of 0.48:1.

15 On this basis then, I consider that the proposed modifications for the designated lower-level bedroom, cinema and store room should not be permitted as it would result in an unreasonable exceedence of the FSR controls and not represent the form of development originally approved. These rooms should be altered so that they are rendered non habitable and conform to the approved plans, in my assessment. 16 It seems to me that no extraordinary circumstances were presented to justify this 50% increase in FSR. Under these circumstances, the development controls do not envisage the degree of additional floor space as proposed in this case and I do not accept that the absence of environmental harm or disamenity is justified.

17 I also have concerns that there are other dwellings in this neighbourhood with similar topography that may seek the same concessions as in this case. In that eventuality, the intent of the FSR controls in the DCP would be thwarted. In this regard, I rely of the line of authority in Goldin & Anor v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 [2002] NSWLEC75, where His Honour Lloyd J said: 28. A number of things could be said about these authorities and the competing submissions upon which they are based. In Emmott v Ku-ring-gai Municipal Council, Sugerman J considered the proposition that a proposed development which is itself unobjectionable should not be allowed because it is likely to lead to other developments of a similar character, the totality of which would prove objectionable. His Honour went on to say that this is in turn dependent upon "a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs" . As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration.

In the present case the Senior Commissioner noted (at par [42]) that the notion of precedent is treated with considerable caution by the Court. He also found as a fact that one approval would tend to lead inexorably to a further three over time. He also noted the existence of 25 lots that could be seen as benefiting from what seems likely to be an inevitable consequence of approvals in this location. Importantly, the Senior Commissioner found (at par [44]) that the present proposals had an undesirable visual impact. In other words, the present proposals satisfied the criteria identified by Sugerman J which give rise to a valid consideration of precedent: the present proposals were not "unobjectionable" in themselves and there was a sufficient probability for further applications of undistinguishable developments of the same class and in the same locality.

In Milner v Willoughby Municipal Council, Cripps J expressly adopted the observations of Sugerman J in Emmott . In Maxwell James Maxwell Pty Ltd v North Sydney Municipal Council, Stein J accepted that a precedent argument may be raised, albeit as an argument of the last resort, but did not refer to any authority for that statement. His Honour emphasised, as did Cripps J, that it is the merits of any particular development application that is important. In Dale v Maritime Services Board of New South Wales, Pearlman J followed the judgments of Cripps J in Milner and of Stein J in Maxwell James Maxwell Pty Ltd . In doing so it does not seem, from a reading of her Honour's judgment, that her Honour was departing from what Sugerman J said in Emmott , that forming the basis of the decision of Cripps J in Milner.

The authorities relied upon by Mr Hale show clearly that the precedent effect of a particular proposal is a valid consideration. In Shellcove Gardens Pty Ltd v North Sydney Municipal Council , Sugerman J expressly referred to his earlier decision in Emmott, in which he corrected the misprint in the latter judgment. Sugerman J acknowledged that "if one application were granted it might prove difficult for the council to refuse others unless the circumstances were distinguishable". In the present case there has been a finding of fact by the Senior Commissioner that there is more than a mere "chance or possibility" of such later applications.

In particular, the decision of the Court of Appeal in BP Australia Ltd v Campbelltown City Council is, of course, binding upon me. As noted above, that Court held that the risk of establishing a precedent is readily invokable by prospective developers of other land in the vicinity is a valid consideration. 18 By reference to this line of authority, I consider the increased FSR is objectionable because of the potential change in usage and advantage it allows to the property owner. This includes the use of the lower ground level as a self control resident unit, which is likely to create other environmental impact. I also accept Mr Griffiths' submission that there are a similar number of neighbouring dwellings with similar topography that would likely seek similar concessions. I understand from the submissions that several applications for building alterations/extensions have been made in this neighbourhood, where council has exercised its discretion and allowed some increases in FSR previously.

19 In the current circumstances, I consider the approval of such a significant increase in FSR is a negative aspect of the proposal and it might prove difficult for council to refuse other similar applications.

20 Apart from the use of this additional space, other modifications were sought for the enclosure of parts of the lower ground floor recreational areas. As I have noted previously, some difficulties were experienced in reconciling the approved development plans with the construction certificate works and those actually undertaken. Various walls, partitions and the staircase have been altered in this recreational area. Nevertheless, I am satisfied that the overall building footprint has been maintained.

21 In the circumstances of this case then, I consider the following modifications reasonable: o The lounge room sliding door be permitted to remain, even though it has been offset approximately 1m, but a bi-fold was originally approved in this general area. o The reconfigured bar/kitchen be permitted, noting that its size seems to have increased. o The internal partitioning for the designated "terrace area" be permitted to remain and enclosed in accordance with the Construction Certificate. In this regard, I note that the approved plan provided for part of this terrace area to be enclosed. It seems to me that the enclosure still results satisfactory visual impacts of the dwelling. o The sliding door to the recreation area be permitted to remain. Even though Council prefers on this remain open to provide satisfactory recreational circulation space, I am satisfied that it can still perform this function whilst providing additional convenience and security to the property owner. I acknowledge that this modification provides an additional benefit to the property owner by way of allowing an effective increase in usable floor area, considering its relatively exposed aspect. 22 I understand from the further discussions and submissions by the parties, that there is agreement for the matter to be adjourned to enable the applicant to submit further, satisfactory modification plans showing the cinema room and additional bedroom being rendered non-habitable. This would enable the s 96 modification appeal to be upheld and the specified amendments approved. Such modifications, would lead to the Building Certificate appeal being discontinued.

      R Hussey
      Commissioner of the Court
      Ljr/rjs/lr

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.

CITATION : Kirzner v Manly Council [2007] NSWLEC 78

CASES CITED: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

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Judgment (21 paragraphs)

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