Carcary v Willoughby [2004] NSWLEC 116

Land and Environment Court of New South Wales

CITATION : Carcary v Willoughby [2004] NSWLEC 116 revised - 8/06/2004 PARTIES : Karen Carcary Willoughby City Council FILE NUMBER(S) : 11456 of 2003 CORAM: Brown C KEY ISSUES: Development Consent :- application to modify approval for dwelling heritage impact LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Willoughby Local Environmental Plan 1995 CASES CITED: DATES OF HEARING: 26/03/04 EX TEMPORE 03/26/2004 JUDGMENT DATE :

APPLICANT Litigant in person

RESPONDENT LEGAL REPRESENTATIVES: Ms H Irish, barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11456 of 2003

Brown C

26 March 2004 Karen Carcary Applicant

v Willoughby City Council Respondent

Judgment

1 . This is an appeal against the refusal of Application (DVA) No.– 2001/0024 to modify an approval granted by Willoughby City Council for the erection of dwelling at 287 Mowbray Road, Chatswood (the subject site).

2 . The modifications to the original approval are set out in detail in the affidavit of Mr Craig O'Brien, a development planner employed by the council. Internally, the modifications are not seen as an issue by the council. External modifications, particularly to the roof form, are the basis for the council's rejection of the application.

3 . The subject site is located within the South Chatswood Conservation Area. The subject site also adjoins a listed heritage items at 283 Mowbray Road. Heritage requirements are found in clause 56, 57, 58, 59 and 60 of Willoughby Local Environmental Plan 1995 (the LEP). Clause 57 (3) states that consent shall not be granted unless the court has considered the extent to which the proposed development " would affect the heritage significance of the heritage item or the heritage conservation area" . Clause 58 states that consent shall not be granted to development in the vicinity of the heritage item or a Conservation area " unless it has assessed the effect of a development on the heritage significance of the heritage item or Conservation area and their setting". Willoughby Development Control Plan No. 19 - Heritage and Conservation (the DCP) provides more specific controls.