Land and Environment Court of New South Wales CITATION : Aitken v Manly Council [2007] NSWLEC 325 APPLICANT Lee Aitken PARTIES : RESPONDENT Manly Council FILE NUMBER(S) : 10956 of 2006 CORAM: Moore C Development Consent :- KEY ISSUES: Modification Removal of condition Uncertainty of condition CASES CITED: Mison v Randwick City Council (1991) 23 NSWLR 734 DATES OF HEARING: 7 February and 9 March 2007 EX TEMPORE JUDGMENT DATE : 9 March 2007 APPLICANT Ms P Whitford, solicitor Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr S Griffiths, solicitoir Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Moore C 9 March 2007 10956 of 2006 Lee Aitken v Manly Council JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal is amendment to an existing development consent subject to amended detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the amended conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and amended conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 COMMISSIONER: This is an appeal pursuant to s 96 of the Environmental Planning and Assessment Act 1979 against a refusal by Manly Municipal Council (the Council) to grant an amendment to a development consent for a proposed new dwelling at 16 Castle Circuit Seaforth. The development consent is 69/2006. 2 The contested condition is a condition which would have had the effect of requiring the removal of some 16 sq m of the first floor of the proposed dwelling, there having been an agreement between the parties earlier that there should be a reduction in the floor space of the proposed dwelling by some 20 sq m. 3 The matter now comes to me for consent orders, which would have the effect of permitting the applicant to retain the 16 sq m exceedence of the floor space ratio. 4 I had the opportunity of visiting the site in company with the representatives of the parties in hearing a number of residents' concerns. I did so on 7 February. 5 On that occasion, I was concerned that adequate notice had not been given to the residents of the proposed consent orders, which the Council proposed to enter into. 6 I did, however, hear the residents on the merits and read and considered the terms of a statement of evidence prepared by the Court-appointed expert planner, Ms Kerry Gordon, in the proceedings. 7 Ms Gordon's evidence deals with all of the merit matters that are raised by the neighbours opposed to the proposal and also deals with the question of compliance with the development control plan. 8 If it were necessary for me to proceed to this step, I would be satisfied on the basis of Ms Gordon's reports that there were no design merit matters relating to specific nominated impacts that would act to warrant requirement of the removal of 16 sq m. 9 However, it is not necessary for me to consider those matters that Ms Gordon deals with concerning compliance or otherwise with the provisions of the development control plan for the reason that a requirement by condition that the floor space of a particular level of a development be decreased by a nominated area or to a nominated area or floor space ratio, in my view, is one, which is entirely inappropriate to be imposed for reasons of uncertainty. 10 I am satisfied, prima facie, that if such a condition were imposed and challenged in Class 4 of the Court's jurisdiction, it would probably be found to offend against the principles laid down by the Court of Appeal in Mison v Randwick City Council (1991) 23 NSWLR 734. 11 I am satisfied that the imposition of such a condition in the very broad terms that were proposed originally by the Council (absent a nomination of those portions of the first level of the building from which the 16 sq m were to be removed), is inappropriate to be allowed to be maintained. 12 For that reason, contrary to the other broader matters that might have been in issue between the parties and dealt with by Ms Gordon's report, I am prepared to uphold the proposed consent orders. 13 In doing so, I observe that I am expressly doing so founded on the terms of the condition and am not expressing any opinion whatsoever as to the consistency or otherwise of the application by the Council of the floor space ratio provisions of the development control plan in this location nor on any matter which might be taken as creating a precedent if the Council were to impose conditions on other non-compliant development proposals where those conditions contain a sufficient degree of specificity of requirement to be capable of being considered reasonable conditions to be imposed on a development. Tim Moore Commissioner of the Court 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.