Carcary v Willoughby [2004] NSWLEC 116

Carcary v Willoughby [2004] NSWLEC 116

The proposed modifications, particularly the two-storey wall component and roof form closer to the street, were discouraged by the DCP and would remain visible despite vegetation, causing an unacceptable impact on the streetscape and character of the South Chatswood Conservation Area; cost implications could not take precedence over the council's heritage requirements, so the appeal failed under cl 57(3) of the LEP.

Jurisdiction
Australia
Judgment Date
26 March 2004
Procedural Posture
Appeal Against Refusal of Application to Modify Development Approval for Erection of a Dwelling / Ex Tempore Judgment
Outcome
Appeal dismissed; modification application refused.
Legal Topics
['modification of Development Approval' 'heritage Impact' 'conservation Area' 'streetscape and Character' 'substantially the Same Development']
['planning and Environment' 'development Consent' 'heritage Conservation'] ['modification of Development Approval' 'heritage Impact' 'conservation Area' 'streetscape and Character' 'substantially the Same Development']

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Procedural Posture

Appeal Against Refusal of Application to Modify Development Approval for Erection of a Dwelling / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the modification application was substantially the same development as the original approval.' 'Whether the proposed modifications would have an unacceptable impact on the South Chatswood Conservation Area, the adjoining heritage listed building, and the streetscape and character of the area.']

Ratio Decidendi

The proposed modifications, particularly the two-storey wall component and roof form closer to the street, were discouraged by the DCP and would remain visible despite vegetation, causing an unacceptable impact on the streetscape and character of the South Chatswood Conservation Area; cost implications could not take precedence over the council's heritage requirements, so the appeal failed under cl 57(3) of the LEP.

Court Disposition

Appeal dismissed; modification application refused.

Orders

  • ['The appeal is dismissed.' 'Application (DVA) No.– 2001/0024 to modify an approval for the erection of a dwelling at 287 Mowbray Road, Chatswood is refused.' 'The exhibits are returned.']