Bakamovic v Manly Council - [2006] NSWLEC 266

Land and Environment Court

of New South Wales

CITATION: Bakamovic v Manly Council [2006] NSWLEC 266

PARTIES:
APPLICANT
Ahmet Bakamovic
RESPONDENT
Manly Council

FILE NUMBER(S): 10202 of 2006

CORAM: Hussey C

KEY ISSUES: Appeal :- Section 96(A) modification, car parking, floor space ratio, public interest

LEGISLATION CITED: Manly Local Environmental Plan (LEP) 1998
Manly Development Control Plan for the Residential Zone 2001
Manly Development Control Plan for Energy Efficient Buildings 1998

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

DATES OF HEARING: 18/05/2006

EX TEMPORE JUDGMENT DATE: 05/18/2006

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

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

18 May 2006

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

Manly Local Environmental plan (LEP)…

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.

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Details

Case: [2006] NSWLEC 266
Decision Date: 05/18/2006

CaseChat Overview and Summary

The case of Bakamovic v Manly Council involved an appeal by Ahmet Bakamovic against the Manly Council's refusal of a section 96(A) modification to a two-storey dwelling at 66B Ponsonby Parade, Seaforth. The modification sought to extend the garage and convert lower ground floor bedrooms into a rumpus room with an external entry and to infill the undercroft area to allow for additional rooms, a laundry, store, and bar area. The primary legal issues centered on whether the proposed modifications were substantially the same as the approved development, whether they complied with the floor space ratio (FSR) controls, and whether the modifications were in the public interest. The court had to determine whether the modifications were allowable under the provisions of the Manly Local Environmental Plan (LEP) 1998 and the Manly Development Control Plan for the Residential Zone 2001.

The Land and Environment Court of New South Wales, presided over by Hussey C, examined the evidence and submissions from both parties. The applicant argued that the modifications were within the approved building footprint and did not adversely affect neighbouring properties. They also claimed compliance with the FSR controls by excluding the garage area from calculations. Conversely, the council contended that the modifications significantly increased the floor space and resulted in a non-complying development, exceeding the permissible FSR of 0.45:1. The council also argued that the modifications would adversely affect neighbouring properties due to increased usage and intensity of the lower ground floor. The court concluded that while the modifications were substantially within the approved building footprint, they did not represent a radical transformation. However, the court found that the modifications resulted in a non-complying development by exceeding the permissible FSR, leading to a 24% increase. Despite the absence of objections and potential benefits to the property owners, the court held that the broader public interest was served by adhering to current planning controls and the objectives of the LEP and DCP.

The court ultimately dismissed the appeal and refused the section 96 modification. It ordered the return of the exhibits except for specific ones, marking a significant decision on the application of planning controls and the importance of maintaining consistency with approved development consents.

Orders