Valero Holdings Pty Ltd v Lane Cove Council [2011] NSWLEC 1067

Land and Environment Court New South Wales

Medium Neutral Citation: Valero Holdings Pty Ltd v Lane Cove Council [2011] NSWLEC 1067 Hearing dates: 16 and 17 March 2011 Decision date: 23 March 2011 Before: Moore SC Decision: The appeal is to be upheld subject to the provision of revised plans and settled conditions reflecting the amendments made during the hearing and the determination in this decision that proposed Apartment 4 would have an unacceptable heritage impact and is to be deleted. Catchwords: Existing use rights; impact on the heritage significance of one of a pair of local heritage items; impact on the heritage significance of the pair of local heritage items; adequacy of parking; protection of a Himalayan Cedar. Legislation Cited: Environmental Planning and Assessment Act 1979 Lane Cove Local Environmental Plan 1987 Category: Principal judgment Parties: Valero Holdings Pty Ltd (Applicant) Lane Cove Council (Respondent) Representation: Mr I Hemmings (Applicant) Mr D Wilson (Respondent) Wilshire Webb Staunton Beattie (Applicant) Pikes Lawyers (Respondent) File Number(s): 10707 of 2010

Judgment

Introduction 1Incorporated in the Lane Cove Local Environmental Plan 1987 (the LEP) is a list of local heritage items recognised by Lane Cove Council (the council), and attracting the additional development protection provisions contained in cl 18A of the LEP. On this list is a pair of two-storey Federation era houses in Glenview Street in Greenwich. 2The heritage study in 1987 that led to the listing in the LEP was, relevantly, undertaken by Mr Moore, the heritage expert for the council in these proceedings. For the houses at 19 and 21 Glenview Street, the reason for listing of these two items is given in the following terms: Interesting pair of substantial 2-storey brick houses of identical basic form, which would seem to have been built as part of the "Greendale Park Estate" as "First-Class Houses". 3The listing document also notes that the Greendale Park Estate subdivision plans date from 1885. 4The more southern of these houses, 21 Glenview Street, has, in a comparatively recent past, undergone additions and alterations that include, relevantly for consideration in these proceedings, a three car garage in the front setback; and an uppermost level dormer window/balcony in the front roof form; and a rear, upper storey addition behind the ridgeline so it is now invisible when viewed front-on from the street. Attractive but low-key landscaping has also taken place on the front setback slope leading up to the paved area in front of the three-car garage. 5The northern of the listed pair, 19 Glenview Street (the site), has been used as a residential flat building since 1927 - such a use being prohibited in the LEP, there is an argument about the extent of existing use rights attaching to the site. From Glenview Street, it is generally (and certainly recognisably) in similar form to its original design and its partnership arrangement with its neighbour - this juxtaposition being still readily identifiable with the reasons for the 1987 local heritage listing. 6An air photo contained in Mr Staas's report - Mr Staas being the heritage expert for the applicant - shows the relationship between the pair of heritage items. This air photo is reproduced below together with its explanatory caption. 7However, it is not unfair to describe 19 Glenview Street as being in decline and suffering from a modest degree of neglect. This neglect is exemplified, as observed during the site inspection, for instance, by the fact that the balcony support beam on the upper front balcony is significantly rotted and is only provided with functionality via being propped up with a length of 100 x 50 mm treated pine holding up a further length of 100 x 50 mm treated pine horizontally supporting the underside of the beam. 8This once gracious house has undergone a deal of internal intervention and rearrangement over the decades with the most recent of these changes occurring in ~ 1979 and resulting in the building being arranged to contain three residential apartments. A number of attractive elements of the original structure remain within the building including: * a number of original marble fireplaces; * a number of impact or partially impact ceiling cornices; and * a number of ceiling roses. 9However, it is not unreasonable, in my assessment, to describe the interior alterations and partitioning that has taken place to create the three apartments as being unsympathetic to and are not representative of its Federation era existence as a dwelling of substance in its local community. 10The parcels of land upon which 19 and 21 Glenview Street stand slope upward toward the west with each of the houses being erected toward the rear of the allotment - thus providing limited private open space at the rear of each of the structures. The rear boundary has a small, steep rise behind each of these houses (and their northern neighbour at 17 Glenview Street) with substantial lattice screening being erected along the rear boundary of all three of the allotments to provide privacy from a residential flat building to the west. 11In the front setback on 19 Glenview Street is currently located an open carport structure with a brick paving floor and open slats along its eastern side toward Glenview Street. This carport provides some off-street parking for the present apartments. In addition, the driveway leads to the house where an informal parking space, on a concrete slab, is available adjacent to the southern fence and in front of the entrance door to the present Apartment 2. 12On the northern boundary, at the street frontage, 19 Glenview Street shares a common concrete flight of steps with the adjacent property to the north, 17 Glenview Street. The flight of steps leads, for each property, to a concrete pathway on each property (with a shared paling boundary fence between them). The dwelling on 17 Glenview Street, although of, perhaps, the same general vintage as 19 and 21 Glenview Street, is located much closer to the street frontage of its allotment and it is a single-storey dwelling that has had later rear additions made to it.