David Road v Hornsby Shire Council [2008] NSWLEC 1461

Land and Environment Court of New South Wales

CITATION : David Road v Hornsby Shire Council [2008] NSWLEC 1461

Applicant: David Road Pty Ltd PARTIES : Respondent: Hornsby Shire Council

FILE NUMBER(S) : 10189 of 2008

CORAM: Roseth SC - Sullivan AC

KEY ISSUES: Development Application :- demolition of hertiage item

DATES OF HEARING: 11 November 2008 and 12 November 2008

DATE OF JUDGMENT: 14 November 2008

Applicant: LEGAL REPRESENTATIVES: Mr M Craig, SC instructed by Mr J Hones, solicitor of Hones LaHood Respondent: Mr I Woodward, solicitor of Storey & Gough

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC Sullivan AC

14 November 2008

10189 of 2008 David Road Pty Ltd v Hornsby Shire Council

JUDGMENT 1 Senior Commissioner and Acting Commissioner: This is an appeal against the refusal by Hornsby Shire Council (the council) of a development application to demolish the existing heritage-listed building, known as Glenowen, on lot 2 DP 286138, David Road, Castle Hill.

The heritage item 2 The site is rectangular, 1,063m2 in area, and on the south side of David Road, northeast of its intersection with Treetops Road. The original Victorian Georgian single-storey house, Glenowen, is on the northeast side of the allotment. A two-storey addition, built in the 1930s, adjoins it. The area around, once an orchard, is now low-density housing.

History 3 In 2004/2005 the council considered an application to subdivide into eight allotments the 6,000m2 parcel on which Glenowen, a property listed as being of local heritage significance, then stood. A Statement of Heritage Impact, prepared by Mr Tony Prescott, a heritage architect, accompanied the application. The Statement was predicated on the premise that Glenowen would be retained and concluded that the subdivision would not adversely affect the significance of Glenowen. Another report, Landscape Heritage Assessment, prepared by Mr Chris Betteridge, also accompanied the application. That report stated: Glenowen has recently changed hands and the new owner wishes to subdivide the property, not only to obtain a financial return from the investment, but also to help defray the cost of restoring the heritage values of the property and managing them in the future (emphasis added) . 4 In April 2005 the council granted deferred commencement consent to the application. In order to obtain an operational consent, the applicant was required to submit a Conservation Management Plan for Glenowen. The deferred commencement condition said: The conservation of the existing heritage listed home and treatment to the existing areas within the curtilage shall be carried out in accordance with a detailed conservation report prepared by a qualified heritage architect. The report shall be submitted to Council's Heritage Officer for consideration and approval granted prior to commencement of the consent. 5 The applicant submitted the Conservation Management Plan in July 2005, whereupon the council released the consent. The Conservation Management Plan undertook to restore and conserve Glenowen. The subdivision works are now complete and several allotments have been sold. No work has been done on Glenowen or its garden. 6 Some time between 2005 and 2007 the council widened David Road and resumed a 3m wide strip from Glenowen's front curtilage. As part of the widening, trees and bushes were removed from the front. 7 In April 2007 the applicant commissioned Mr J Mathias, a heritage architect, to prepare a Reassessment of Significance Following Removal of Most Contributing Elements. The reassessment stated that …because of the removal of most of the elements contributing to the significance of the property and the house, it is considered that they both now have very low levels of significance such that they no longer need to be conserved. 8 In June 2007 the applicant lodged an application proposing the demolition of Glenowen. Following notification, the council received one submission. The council refused the application in August 2007 on the basis that Glenowen is a "rare example of a Victorian Georgian style brick homestead", the demolition of which was not sufficiently justified. The applicant lodged the appeal in March 2008.