Mankarious v Bankstown City Council

[2014] NSWLEC 1220

Land and Environment Court

New South Wales

Medium Neutral Citation:	Mankarious v Bankstown City Council [2014] NSWLEC 1220
Hearing dates:	27 October 2014
Decision date:	28 October 2014
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	Modification of consent
Legislation Cited:	Bankstown Local Environmental Plan 2001
Cases Cited:	Gann & Anor v Sutherland Shire Council [2008] NSWLEC 157
Category:	Principal judgment
Parties:	Mr Maged Mankarious (Applicant) Bankstown City Council (Respondent)
Representation:	Applicant in person Ms C Morton (Respondent) Sparke Helmore (Respondent)
File Number(s):	10589 of 2014

Judgment

1. Bankstown City Council granted development consent DA-16/2013 authorising the construction of a detached dual occupancy development on land at 26 Burns Road, Picnic Point. The development has been completed contrary to the plans approved and Mr Mankarious lodged Modification Application DA-16/2013/1 with the council on 8 November 2014 seeking approval to increase the floor space of the development so as to reflect the works as built.

1. The council refused to modify the consent and Mr Mankarious is appealing that decision.

1. At the commencement of the hearing, the applicant sought and was granted leave to rely on amended plans that correctly identified the extent of works undertaken. As a result of the detail provided in those plans, Ms Morton, for the council, advised the Court that contentions 3 and 4 as detailed in the Council's Statement of Facts and Contentions filed on 10 September 2014 were resolved and that the council would not be pressing the remaining contentions.

The site and its context

1. The site is located on the northern side of Burns Road to the east of Kennedy Street, has a frontage of 20.12m, irregular side boundaries of 54.865m and 48.77m and total site area of 1134sqm.

1. Two, two storey dwelling houses in the form of a detached dual occupancy have been erected on the site.

1. Development in the vicinity of the site comprises detached housing of one and two storeys.

Background and the proposal

1. Development consent DA-16/2013 was issued by the council on 20 March 2013 and authorised demolition of existing structures and construction of a Detached Dual Occupancy including Inground Swimming Pools to each Dwelling and Torrens Title Subdivision. The development has been completed however, according to the evidence in the case, that development is inconsistent with the approved plans.

1. The applicant lodged a Modification Application which sought approval to increase the floor space of the dwellings. The plans lodged with the application did not reflect the extent of work carried out on the site and in fact would have authorised a further increase in the footprint of the building to that constructed. Other minor changes to detail are included in the plans and are not contentions in the hearing.

1. The council refused the application to modify the consent on 24 July 2014.

1. The plans now before the Court reflect the dwellings as built. The changes are the reduction in length of each dwelling by 100mm, the increase in the length of the family/dining rooms by 500mm and the reduction in depth of the associated patio area by 500mm at ground level and the increase in length of bedrooms 3 and 4 by 1.75m at first floor. The balcony off those bedroom remains at 1.2m however extends closer to the rear boundary because of the additional floor space contained within the bedrooms.

1. The net increase in floor space is 37sqm which results in a floor space ratio (FSR) of 0.417:1.

The planning controls

1. The site is zoned 2(a) Residential under Bankstown Local Environmental Plan 2001 (LEP). Dual occupancy development is permissible with consent in that zone.

1. Clause 30 of the LEP provides for maximum floor space ratios that accord to those shown on the map that relates to the clause. In this case the maximum FSR is calculated as 0.5:1 for the first 700sqm of site area and 0.2:1 for the remainder. That provides for a maximum of 436sqm or 0.385:1. The development does not comply with that requirement.

1. The objectives of the FSR control are contained in clause 30(1) of the LEP and are in the following terms:

(a)   to generally regulate the scale and bulk of development consistently with the capacity and character of the area of the development site,

(b)   to ensure non-residential development in residential zones is of a similar scale to that of permitted residential development,

(c)   to regulate the intensity of development in business zones consistently with the role and function of the particular business centre, the capacity of the road network to accommodate business-related traffic, and the availability of public transport,

(d)   to provide an incentive for redevelopment of key sites in the Bankstown CBD,

(e)   to ensure that business and retail development in industrial zones is of a scale comparable to mainstream industrial zone activity and does not attract development more appropriately located in business zones.

1. Clause 30(2) provides:

(2) The consent authority must not grant consent to development if it has a floor space ratio in excess of that indicated for the development site on the Floor Space Ratio Map.

1. As the application is for modification of a development consent and not seeking the grant of consent, the provisions of clause 30(2) are not a barrier to the Court allowing the modification as lodged, see Gann & Anor v Sutherland Shire Council [2008] NSWLEC 157.

The evidence

1. Expert town planning evidence was heard from Mr J Shankar for the council and Mr E Sarich for the applicant. Mr Shankar says that the plans now before the Court are materially the same as was approved and that the bulk and scale of the development is consistent with the relevant objectives of the development standard and in particular, the character of the area.

Conclusion and findings

1. For consent to be granted I must be satisfied that the development is substantially the same development as that for which consent was granted. Having regard to the evidence, I am so satisfied and consider it would be appropriate to allow a development that exceeds the FSR development standard. I accept the evidence of the planners that the objectives of the control are met, in particular objective 30(1)(a) and the proposal would be consistent with the existing and likely future character of the area.

1. The Orders of the Court are:

(1)   The appeal is upheld.

(2)   Condition 2 of Determination Notice No. DA-16/2013 is amended to read:

2) Development shall take place in accordance with Development Application No.DA-16/2013, submitted by Paul Festa, accompanied by Drawing No. 01a(1), dated 8January 2012, 02(4), 03(4), 04(4), 06(4) & 06a(4), dated 14 March 2013, 05(2), dated 29 January 2012 & 07(3), dated 28 February 2013, prepared by Design-Basix-Build Pty Ltd and affixed with Council's approval stamp, except where otherwise altered by the specific amendments listed hereunder and where amended by the conditions, contained in this approval.

The development plans shall be amended as follows:

a) Obscure glazing shall be applied to the windows marked in red pen on the approved western elevations shown on Drawing No.06a to restrict opportunities for overlooking to the adjoining dwelling.

and Section 96(2) Modification application DA-16/2013/1 submitted by Maged Mankarious accompanied by Drawing No. 02, 03, 04, 05, 06, 06a, 07 prepared by Design-Basix-Build Pty Ltd and affixed with the Land and Environment Court approval stamp dated 27 October 2014 except where otherwise altered or amended by the conditions listed here under.

The approval is subject to full compliance with all other conditions contained within Development Consent DA-16/2013 and the associated Construction Certificate.

A copy of the approved plans is attached for your information.

You are also advised that a Building Certificate is required as a result of the above modification. The Building Certificate shall be lodged with Bankstown City Council at your earliest convenience.

(3)   The exhibits, other than exhibit A, may be returned.

Sue Morris

Commissioner of the Court

Decision last updated: 28 October 2014