CIH 88 Pty Ltd v Willoughby City Council

File Number(s): 2025/108916

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal brought under s 30(1) of the Heritage Act 197**7 (NSW) (NSW Heritage Act) against the making of an interim heritage order (IHO) by Willoughby City Council (the Respondent) for “Walworth”, a dwelling at 106 Sydney Street, North Willoughby (the site).

2. The IHO was made by the Respondent, pursuant to s 25 of the NSW Heritage Act, on 25 February 2025 (Exhibit 1).

3. The Court benefited from a site view of the interior and exterior of the property on 17 November 2025 accompanied by the parties including their heritage experts.

The site and its context

4. The site is legally described as Lot 1 DP 1311714.

5. The site is a rectangular allotment, on the western side of Sydney Street, with an area of 1574 m2. There is an existing single-storey residence on the site, with painted roughcast render walls and a hipped slate roof with two projecting gables above bay windows, set behind an established garden.

6. The immediate context of the site is within a residential area of single and two storey detached dwellings.

Issues

7. The Applicant contends that the place is not of local heritage significance based on historical documentation and physical evidence when assessed against the Heritage Council of NSW “Assessing Heritage Significance” guidelines (Heritage NSW assessment guidelines) (Exhibit C).

8. The Respondent contends that the site does meet the threshold for local heritage significance against four of the seven criteria in the Heritage NSW assessment guidelines, which justifies the imposition of the IHO on the site.

Chronological background to the appeal

9. The key points in the chronology of events relevant to this appeal are:

10. On 31 January 2025, the Applicant lodged a Complying Development Certificate application for the demolition of the existing dwelling house and associated structures on the site.

11. A “Preliminary Heritage Assessment” of the site was prepared for the Willoughby City Council’s meeting agenda on 24 February 2025, recommending the making of an IHO over the property. (Exhibit 1).

12. The IHO was made by the Respondent by publication in the NSW Government Gazette No 70, 25 February 2025 (Exhibit 1). The IHO applied to the whole of Lot 1 DP 1311714.

13. On 20 March 2025, the Applicant commenced these proceedings by filing an appeal in Class 1 of the Court’s jurisdiction, appealing against the making of the IHO under s 30 of the NSW Heritage Act.

14. On 25 June 2025, the Respondent resolved to forward a planning proposal to the Department of Planning and Environment to amend the Willoughby Local Environmental Plan 2012 to list the site as an item of local significance.

Legislative Framework

10. The making of an IHO is provided for by the terms of the NSW Heritage Act.

11. The Minister for Heritage authorised local councils to make IHOs for items in accordance with s 25 of the NSW Heritage Act, subject to conditions listed in Sch 2 of the authorisation set out in NSW Government Gazette No 90, 12 July 2013 (Exhibit 5). The conditions require that, inter alia, a scheduled Council (including Willoughby City Council) must not make an IHO unless it has considered a preliminary heritage assessment of the item (prepared by a person with appropriate heritage knowledge, skills and experience employed or retained by the Council) and considers that “the item is or is likely to be found, on further i**nquiry and investigation, to be of local heritage significance”. (Schedule 2, 1(b)(i) of the NSW Government Gazette No 90). (Emphasis added.)

12. The power for making an IHO under s 25(2) of the NSW Heritage Act requires Council’s consideration that the place or building “…may, on further inquiry or investigation, be found to be of local heritage significance, and that the council considers is being or is likely to be harmed”. (Emphasis added.)

13. Local heritage significance is defined at s 4A(1) of the NSW Heritage Act as “…significance to an area in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item”. (Emphasis added.)

Evidence

14. The Applicant relied on the heritage advice of Mr Graham Brooks, and the Respondent relied on the expert evidence of Ms Vanessa Holtham. The experts prepared a joint report (Exhibit C) and gave concurrent evidence.

15. The experts agreed in their Expert Report (Exhibit C) that the second condition under s 25(2) of the NSW Heritage Act for making an IHO is met, in that the building is likely to be harmed due to the Complying Development Certificate issued on 31 January 2025, (CK24126/01), for the demolition of the existing dwelling house and associated structures on the site.

16. The experts did not agree that the first condition under s 25(2) of the NSW Heritage Act for making an IHO is met, regarding whether the place is or may, on further inquiry or investigation, be found to be of local heritage significance.

17. The Heritage NSW assessment guidelines (Exhibit C) note that, to be considered an item of local heritage significance, it is sufficient for a place to meet one of the seven criteria identified in the guidelines.

18. Ms Holtham considers the building to be significant as an early timber weatherboard farmhouse-style building dating from the mid to late 19th century, representing one of the earliest buildings in the Willoughby local government area, and one of the largest timber houses remaining in the local area. She further considers the building to be of aesthetic significance as in her opinion it contains original features of high quality in excellent condition. On this basis, when assessed against the Heritage NSW assessment guidelines, Ms Holtham considers the building meets the following four criteria:

“Criterion (a)- Historic Significance An item is important in the course, or pattern, of NSW's cultural or natural history (or the cultural or natural history of the local area)

…

Criterion (c) – Aesthetic/creative/technical achievement An item is important in demonstrating aesthetic characteristics and/or a high degree of creative or technical achievement in NSW (or the local area).

…

Criterion (f)- Rare An item possesses uncommon, rare or endangered aspects of NSW's cultural or natural history (or the cultural or natural history of the local area).

Criterion (g)- Representative An item is important in demonstrating the principal characteristics of a class of NSW's cultural or natural places; or cultural or natural environments…”

19. Mr Brooks is of the opinion that the place does not meet any of the criteria for listing as an item of local heritage significance when assessed against these guidelines.

Date of construction of the building

20. The experts do not agree on the date of construction of the timber-framed component of the house or whether the painted roughcast masonry structure with two bay windows which presents to Sydney Street was built at the same time as the timber-framed structure or subsequently.

21. Ms Holtham gave evidence that, in her opinion, the timber-framed structure dates from earlier than the 20th century, potentially circa 1864-1870. She noted that, in Willoughby Council Historic Rate books from 1882, the site was then described as a “house, land and a dairy”. (Emphasis added.) Ms Holtham speculates, based on her assessment of the physical fabric of the existing building, that the earlier building could have been moved and incorporated into the current structure, although no documentary evidence was provided to support this conjecture. Ms Holtham considers that the masonry frontage was added circa 1916-1917, noting that the description of the property in Willoughby Historic Rate Books changed in 1917 from “weatherboard cottage*”* to “weatherboard cottage and brick*”*. (Emphasis added.)

22. Mr Brooks agrees that there was a house on the land as early as 1882, but believes that this was not the current house. In Mr Brooks opinion, this house dates from the early 20th century, circa 1900-1908, to which the bay window masonry frontage may have been added circa 1919, evidenced by the different materials used and the joint in the floorboards at the connection between the masonry structure and the timber-framed structure behind, although he also considers it also possible that the building may have been erected in a single stage. Mr Brooks acknowledges that the building displays detailing consistent with an earlier construction date, but gave evidence that in his opinion Victorian details (for example skirting board profiles) carried through for a 25-year period from the late Victorian period up until World War II.

23. The Applicant tendered a map described as ‘Sydney Water Field Book’, titled ‘Willoughby Sheet No 31’, and stamped ‘Department of Public Works, Sewerage Construction, 1899’ (1899 Map). This tender was challenged by the Respondent on the basis that this document was provided by the Applicant’s heritage expert only during joint conferencing, and as a result of its late introduction, the Respondent had inadequate opportunity to verify the document. I allowed the document to be tendered (Exhibit D) on the basis that it was referenced in the supporting documents in the joint report.

24. Mr Brooks gave evidence in cross-examination that the 1899 map was obtained from Sydney Water archives. It shows a building on the western portion of the lot as it existed at that time (ie. prior to subdivision) but sited well behind the location of the existing house, on the site of what later became a tennis court (indicated on a 1943 aerial photograph, Exhibit C), land which was later subdivided and built upon. The building indicated on the map appears to be smaller and in a different form to the existing dwelling.

25. Mr Brooks gave evidence that the Applicant engaged a surveyor to produce a survey drawing overlaying the location and size of the building shown on the site on the 1899 map on the current site plan. Limited weight must be given to the precision of this survey plan as no information was provided about how this dimensioned survey plan was created when the original drawing is not dimensioned.

26. However, it was not in dispute between the experts that the building indicated on the 1899 map is located behind the subject site rather than on the site of the current building.

Aesthetic significance and integrity of the building and its fabric

27. The experts did not agree on the integrity of the existing building.

28. Ms Holtham considered that building has original features in excellent condition, including elements such as joinery, leadlight windows, tessellated tiles and plasterwork, that the evolution of the building is significant, and that the building has significance due to the quality, intactness and condition of its Victorian and Federation fabric.

29. Mr Brooks disagreed with Ms Holtham that the building has aesthetic significance sufficient to meet the threshold for listing as an item of local heritage significance; in his opinion the building is very typical in style and detail of a turn-of-the-century residence. Mr Brooks considers there have been extensive changes to the building over time, including the introduction of reproduction or salvaged fabric, for example to floorboards and fireplaces, along with the additions in the 1980s and 1990s, which in his opinion adversely affect the significance of the dwelling.

30. Mr Brooks does not agree with the assessment of the building as a former farmhouse, due to its large size and elaborate interior detail.

31. Ms Holtham considers the building to be special due to its timber construction, and rare as a large timber dwelling within the Willoughby local government area.

Submissions

32. The Applicant submitted that the site does not meet any of the criteria for listing as a local heritage item. Furthermore, the Applicant submitted that in their view the assessment of the heritage significance of the site is complete and no further investigation or inquiry will occur, therefore the Court’s role is to determine whether the site is of local heritage significance, citing Forte Construction Group Pty Ltd v Inner West Council [2018] NSWLEC 1400 (Gray C).

33. The Respondent submitted that the Court, in the course of exercising the power to make the IHO, is not required to make a conclusive finding of fact as to whether the building is of local heritage significance, but rather whether the necessary threshold test has been met, in that the building or place, on further inquiry or investigation, may be found to be of local heritage significance, citing Byron Ventilink Pty Ltd v Byron Shire Council (2005) 142 LGERA 215; [2005] NSWLEC 395 (Pain J).

Findings

34. The 1899 map clearly shows a building in a different location from the existing dwelling. Whilst it is possible that the building could incorporate late 19th Century fabric from a former dwelling as speculated by Ms Holtham, I also accept Mr Brooks’ evidence that a building erected at the beginning of the 20th century may display earlier Victorian detailing and floor planning (with its central corridor and symmetrical room layout), and therefore the construction of the building on this site may date from post 1900. In the absence of conclusive documentary evidence or physical evidence, it has not been demonstrated to my satisfaction that the building is, or is likely to be, representative of a former farmhouse or associated with pastoral activities and thus the initial phase of development within the local government area. On that basis, I find the building is unlikely to be important in the course or pattern of the cultural history of the local area, and therefore it does not meet the threshold for criterion (a) or criterion (g) of the Heritage NSW assessment guidelines regarding historical significance or representativeness.

35. While acknowledging that the building has undergone alterations and additions over time, not all changes to a building inevitably result in the loss of those characteristics and attributes which render a building of local heritage significance. Mr Brooks did not demonstrate evidence of extensive changes to the fabric or the internal layout of the early central core of the building, nor that the later alterations and additions to the building are unsympathetic to an extent which damages the integrity of the earlier building. I accept Ms Holtham’s evidence that these core building elements (including its interior joinery including skirtings, doors, fanlights, etc.) remain substantially intact and in good condition, and that the masonry front façade, (with its paired bays, sidelight and fanlight windows with stained glass, and tessellated tiles with slate treads), whether or not it is a later addition, is likely to be important in demonstrating aesthetic characteristics of significance in the local area, and therefore meets criterion (c) of the Heritage NSW assessment guidelines.

36. I also accept Ms Holtham’s evidence that the building, as a large timber residence with a masonry façade, either built contemporaneously or as a later addition, is unusual within the Willoughby local government area, and that the building possesses uncommon or rare aspects of the local area’s cultural history. Whether constructed in a single phase of development or over two separate phases, I accept Ms Holtham’s evidence that the development with its core timber-framed structure with a superimposed masonry façade is unusual and rare in the local government area, and likely to be of significance under criterion (f) of the Heritage NSW assessment guidelines for this reason.

37. Furthermore, as the date of construction and original form of the building remains unresolved and these aspects warrant further inquiry and investigation, I consider that these further enquiries that could be made are likely to lead to a finding that the site is of local heritage significance.

Conclusion

38. On the basis of the evidence before me and for the reasons set out above, I find that the IHO for 106 Sydney Street, North Willoughby has been validly made, and that the building meets the test for an interim heritage order under s 25(2) of the NSW Heritage Act, in that the site faces a threat of harm, and is or is likely, on further enquiry or investigation, be found to be of local heritage significance.

Orders

39. The orders of the Court are:

40. The appeal is dismissed.

41. The exhibits, other than Exhibits 1, A, B and C are returned.

N Macken

Acting Commissioner of the Court

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