Clarke v Willoughby City Council [2011] NSWLEC 1151

Land and Environment Court New South Wales

Medium Neutral Citation: Clarke v Willoughby City Council [2011] NSWLEC 1151 Hearing dates: 31 March 2011 Decision date: 27 May 2011 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The parties are to file short minutes of order that reflect the findings in the judgment by 10 June 2011. 2. Liberty to restore on two days notice. Catchwords: APPEALS - Section 96 application and s 97 to delete deferred commencement condition requiring design changes. Impact on heritage significance. Legislation Cited: Environmental Planning and Assessment Act 1979 Willoughby Local Environmental Plan 1995 Cases Cited: Over our Dead Body Inc v Byron Bay Community Association Inc [2001] NSWLEC 125 McClenahan v North Sydney Council [2007] NSWLEC 312 Leal & Anor v Woollahra Municipal Council [2008] NSWLEC 1253 Category: Principal judgment Parties: Jennifer Clarke (Applicant)

Willoughby City Council (Respondent) Representation: Counsel: Mr N Eastman, Barrister (Applicant)

Ms D Townsend, Solicitor (Respondent) Solicitors: Mallesons Stephen Jaques (Respondent) File Number(s): 10954 of 2010 and 11012 of 2010

Judgment 1Willoughby City Council (the council) approved a development application (2009/79) on 14 December 2009 for internal alterations to the existing dwelling at 40 Findlay Ave, Roseville (the site). The development consent was subject to a deferred commencement condition (A) that required amended plans to be prepared which included: (a) retain the built-in entry hall furniture including seat, mirror, lining and storage table; (b) amend the proposed enlarged openings to the ground floor such that they allow for the retention of the built in hall furniture; and (c) demonstrate that the existing stair will not be impacted by the proposed alterations, the internal door between the hall and the kitchen is to be retained and closed off on the kitchen side, and that the parquetry flooring will be retained and restored. 2The deferred commencement condition provided a 12 month period from the date of the deferred commencement notice for the plans to be submitted. 3Appeal No 10954 of 2010 is against the refusal by council of an application under s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify the development consent to delete sub conditions (a) and (b) of the deferred commencement condition. Plans that satisfy sub condition (c) but remove the built in entry hall furniture and the wall between the entry hall and dining room have been submitted as part of the s 96 application. 4Appeal No 11012 of 2010 is an appeal under s 97 of the EPA Act to delete the deferred commencement condition. Under s 95(6) of the EPA Act the deferred commencement consent would have lapsed on 15 December 2010. Pursuant to s83(2) of the EPA Act the lodgement of the s97 appeal saves the consent from lapsing while the appeal is heard.