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
JUDGMENT DATE :

03/26/2004

LEGAL REPRESENTATIVES:

APPLICANT
Litigant in person

RESPONDENT
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.

4 . The Statement of Issues identifies five separate issues. Issue 1, asks whether the modification application is substantially the same development as the original approval. This was considered as a preliminary issue and it was found that the answer to this question was "yes".

5 . The remaining issues can be conveniently grouped into a single issue that asks whether the proposed modifications will have an unacceptable impact on the South Chatswood Conservation Area, the adjoining heritage listed building and the streetscape and character of the area. The consideration of this issue was undertaken as an On Site Hearing.

6 . The applicant was self represented and provided a report addressing the issues raised by the council. No specific expert heritage evidence was provided.

7 . The council provided a report from Ms Jennifer Hill, a heritage architect. She describes the amendment as being significantly different to the existing approval. The second-storey presents as a two-storey wall on one side, which is highly visible in the streetscape. Mowbray Road has a highly intact and consistent pattern of original one and two storey residences. There on no detracting new developments in the street block. The mass of the two-storey volume previously located to the rear of the building has now been moved forward. She states the raised gable roof form is not characteristic and will detract from the Conservation area. The building has also been moved forward some 800 mm thereby reducing the area for landscaping. The loss of landscape screening in this area combined with the increased bulk and scale of the building results in the building being visually dominant. This unacceptably impacts on the setting of the adjacent heritage item and the South Chatswood Conservation Area.

8 . In considering this issue the Court had the benefit of plans showing the original approval and the amendments proposed in this application however this gives an incomplete understanding of the issues raised by the council. Ms Hill helpfully conceded that the impact on the adjoining heritage item is not significant as the design and roof form adjoining this building is consistent with the DCP requirements. The principle issue relates to the opposite elevation where a section of the elevation provides for a two-storey wall. This results in increased size and prominence, being closer to the street than the approved plans. The Court was taken to numerous references in the DCP, including requirements on scale, massing and form, design elements and design future character where this section of the building was seen as being a poor heritage design response.

9 . Ms Carcary argued that this was not a significant matter, being set back a considerable distance from the street and aided by the angle of the front boundary. Additionally, she maintained that the current amendment represented significant cost savings over the original approval.

10 . If the proposed amendments were looked at in isolation, the impacts may not be seen as significant. However, this is not the position the Court must adopt. The DCP is a document endorsed by the council and it is incumbent on the Court to consider its contents. There is little doubt that the DCP discourages development in the form proposed in the application. This is the basis of Ms Hill's evidence. In my view, the basis for the DCP requirements is sound, being based on a comprehensive study of the area. While I empathise with Ms Carcary over the cost implications, it is not a matter that can be given precedence over the council's heritage requirements.

11 . The fact that that the two-storey wall component is partially screened by existing vegetation is also not sound basis for supporting the amendment. I agree with Ms Hill that the two-storey component will still be visible and will have an unacceptable impact on the streetscape and character of the Conservation Area.

12 . For these reasons, and in accordance with cl 57(3) of the LEP, the appeal must fail.

13 . The Orders of the Court are:
1) The appeal is dismissed,
2) Application (DVA) No.– 2001/0024 to modify an approval for the erection of a dwelling at 287 Mowbray Road, Chatswood is refused.
3) The exhibits are returned.

________________
G T Brown
Commissioner of the Court