Kirzner v Manly Council [2007] NSWLEC 78

Kirzner v Manly Council [2007] NSWLEC 78

The proposed modifications involving additional rooms would create an unreasonable exceedence of floor space ratio controls, present potential for use as a self-contained residential unit, and defeat the intent of the DCP's FSR restrictions. No extraordinary circumstances exist to justify the 50% increase; approval would likely establish a precedent, undermining planning controls.

Parties
Applicant: Alex Kirzner; Respondent: Manly Council
Jurisdiction
Australia
Judgment Date
15 February 2007
Procedural Posture
Appeal / Judgment
Outcome
matter adjourned to allow submission of modification plans rendering cinema room and additional bedroom non-habitable; s 96 appeal can be upheld upon such modifications; building certificate appeal to be discontinued upon compliance.
Legal Topics
S 96 Modification, Building Certificate Refusal, Floor Space Ratio, Development Control
Planning Law S 96 Modification Building Certificate Refusal Floor Space Ratio Development Control

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Parties

Alex Kirzner

Applicant

Manly Council

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether s 96 modifications should be approved given excessive floor space ratio
  2. 2 Whether building certificate should be issued for construction departing from approved plans
  3. 3 Potential precedent and environmental impacts of granting increased floor space ratio

Ratio Decidendi

The proposed modifications involving additional rooms would create an unreasonable exceedence of floor space ratio controls, present potential for use as a self-contained residential unit, and defeat the intent of the DCP's FSR restrictions. No extraordinary circumstances exist to justify the 50% increase; approval would likely establish a precedent, undermining planning controls.

Court Disposition

matter adjourned to allow submission of modification plans rendering cinema room and additional bedroom non-habitable; s 96 appeal can be upheld upon such modifications; building certificate appeal to be discontinued upon compliance.

Orders

  • The matter is adjourned for applicant to submit satisfactory modification plans showing cinema room and additional bedroom rendered non-habitable.
  • Permitted modifications include lounge room sliding door offset, reconfigured bar/kitchen, internal partitioning of terrace area, and sliding door to recreation area.