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. The proposed development 13The development proposal that is the subject of these proceedings involves additions and alterations to the existing house on 19 Glenview Street; the excavation of a predominantly (but not entirely) underground car park with parking for six vehicles with the driveway access of leading down to this parking area being a little to the north of the present driveway entrance leading up the slope in the property; and the erection of a fourth dwelling - Apartment 4 - on top of part of the podium to the proposed car park. The proposed additions to the existing building involve: * no additions at the ground level; * a minor addition by adding a laundry in the south-western corner; and * in the roof space where there is presently located a small, cramped bedroom for the present Apartment 3, significantly more of the roof space is to be utilised to create a new master bedroom for what will become the most substantial of the three proposed new Apartment configurations. 14The proposed use of the roof space will involve the insertion of a dormer window/balcony in the front roof slope and the addition of a new gable-ended wing extending to the west and slightly below the height of the present north/south running ridgeline. 15The proposed internal alterations to the existing dwelling will involve the loss of some of the remaining original fabric of the building and a significant rearrangement of its internal partitioning and space utilisation - including a complete reconfiguration of the staircase access between the ground level and the first floor. 16At the present time, Apartment 1, the present dominant apartment space in the building, utilises the central and northern half of the ground level; all of the first floor area except the south-western corner and has exclusive access to the majority of the private open space to the rear. 17Apartment 2 comprises the residual southern portion of the ground floor with its bedroom being the front ground level room of the existing structure. 18Apartment 3, in the south-western corner of the first level of the building has, as earlier noted, a cramped bedroom in the roof cavity of that portion of the building. 19It is fair to say that the amenity enjoyed by the occupants of the present Apartment 3 could not be considered to be of a high standard; that of the present Apartment 2 is certainly merely acceptable; and that of the present Apartment 3 is significantly more than acceptable. 20The proposed internal rearrangement of the existing dwelling will have a new Apartment 1 created as a one-bedroom apartment utilising most of the northern side of the ground floor of the existing dwelling. It will have its private open space at ground level between the existing building and the northern boundary fence with 17 Glenview Street. 21The proposed new Apartment 2 will comprise the western section of the ground level of the present building and will have a service space of small dimensions immediately to the west of (and fenced off from) the private open space of proposed Apartment 1. Although the element of the existing deck at the upper level would have partially covered this service area, this deck element will be removed as a consequence of amendments to the plans during the course of the hearing. However, this service area does not constitute private open space of any utility. On the other hand, because there is an access door from proposed Apartment 2 to this service area, this access door (when combined with the principal entrance to the apartment in the south-western corner of the building) means that this apartment will have appropriate cross ventilation. 22Proposed Apartment 2 will, also as a result of amendments to the plans during the course of the hearing, benefit by the deletion of the existing staircase leading from the vicinity of the concrete slab parking area to the deck at the rear of the upper level of the building. The removal of this staircase and the erection of a privacy screen at the eastern end of the residual upper level deck will have the effect of enabling virtually the doubling of the private open space for proposed Apartment 2 to approximately 20 sq m and will also remove the entirely unsatisfactory overlooking of what had been the proposed private open space of only some 9.5 sq m immediately adjacent and effectively subservient to that staircase. 23These plan amendments will also ensure that privacy is afforded to the skylight to this portion of the living area of proposed Apartment 2 - it being observed during the course of the site inspection at the present skylight had been covered with cardboard in what may have been a privacy arrangement. 24The living and bedroom area of proposed Apartment 2, a studio apartment, will receive natural light via its doorway and the adjacent window and via the skylight to its living space. However, there is no likelihood, because of the orientation of the existing built form that the living/bedroom space of this apartment will receive any direct sunlight whatsoever and such sunlight as may fall on any portion of the private open space of this apartment will be minimal (indeed it was joked, during the joint evidence by the planners, that such sunlight as might conceivably fall on this private open space would be at dawn on the summer solstice only!). 25By far the most generous dwelling proposed within the reconfiguration of the existing built form is proposed Apartment 3. It will have the existing south-eastern front room on the ground floor (currently the bedroom for the presently configured Apartment 2) as a study with occupation of the entirety of the upper level and the new master bedroom space proposed in the roof cavity. It will be an apartment of generous proportions and it will have a very high level of amenity for its occupants. This apartment will have, as its private open space, the entirety of the existing rear private open space to the building. It will retain, in slightly altered configuration, the existing swimming pool to the rear and will have a covered open gazebo in the north-western corner of the allotment. 26Proposed Apartment 4, the dwelling proposed to be erected on the northern portion of the podium of the proposed underground car park, will be a two-bedroom dwelling with a communal open space on the roof of its second bedroom - a bedroom proposed to be located at the western end of this structure. The private open space for this apartment will be a deck to the street frontage of its structure and a lawn area to the south of this built element. 27The staircase leading from the underground car parking rises along the western portion of the face of proposed Apartment 4. Amendments during the course of the hearing 28Leave was sought during the course of the hearing for a number of amendments to the proposed development. Leave was granted without opposition and the council conceded that these amendments were minor and, as a consequence, the provisions of s 97B of the Environmental Planning and Assessment Act 1979 were not triggered. The amendments that were made were all ameliorative and were responsive to criticisms of aspects of the original design. The amendments that were made were as follows: * the already noted deletion of the staircase to the upper level in the south-western corner (leading to privacy and open space benefits to proposed Apartment 2); * deletion of portion of the existing deck along the north-western rear face of the existing built form (this being above the service area for proposed Apartment 2 and this removal being responsive to concerns expressed by an owner of 17 Glenview Street about overlooking of his property); * retention of the shared concrete steps from the street but the deletion of the majority of the pathway to the west along the boundary with 17 Glenview Street and the deletion of that portion of the deck of proposed Apartment 4 that came across to the boundary with 17 Glenview Street - this area is now proposed to be available for landscaping and it is also a response to the privacy concerns for 17 Glenview Street; and * the relocation of the entrance gateway to proposed Apartment 1 to ensure that a landing area which had previously been on the common property in the immediate vicinity of a bedroom window on 17 Glenview Street was now to become part of the private area of proposed Apartment 1 - thus removing it from any general trafficability and significantly lessening the likelihood of overlooking into the adjacent bedroom window on 17 Glenview Street. 29In my assessment, the amendments that have been made along the northern, shared boundary with 17 Glenview Street, appropriately respond to and address the specific amenity concerns raised for that property. The site inspection 30At the commencement of the hearing, I inspected the site with the representatives of the parties and their expert advisers. I heard informal evidence from a number of objectors to the proposal and I inspected the exterior and interior not only of 19 Glenview Street but also those aspects of its northern neighbour, 17 Glenview Street. 31I also walked much of the length of Glenview Street to the nearest intersections to the north and south. During the course of the internal inspection of 19 Glenview Street, the heritage experts for the parties, Mr Moore and Mr Staas (for the applicant), pointed out a number of locations where there were remnants or partial remnant elements of the original building fabric of the house. The issues 32The issues that are in dispute between the parties are: * Are there existing use rights on the site for a residential flat building and, if so, the extent of the site to which these are attached? * If there do exist use rights as a residential flat building and the area comprises the whole site, does the definition of residential flat building contained in the LEP require that all apartments in a residential flat building be in a single building? * If any permissible residential flat building is required to be a single building, is there sufficient connection between proposed Apartment 4 and the existing structure sufficient for the totality of the built form to be regarded as one building? * Are the additions and alterations proposed for the existing heritage item at 19 Glenview Street acceptable? * Does the proposed underground car park (and the extent of excavation necessary for it) have an unacceptable impact on the heritage item? * Would proposed Apartment 4 on top of the podium of the underground car park have an unacceptable impact on the heritage item? * Will construction of the underground car park have an unacceptable impact on a Himalayan Cedar tree in the front setback? and * Does the proposed number of parking spaces in the underground car park satisfy the relevant development control plan provisions and, if not, is the proposed number of parking spaces otherwise acceptable? 33In addition to these matters, one of the owners of the house at 17 Glenview Street also raised a number of concerns relating to what he considered to be unacceptable privacy impacts from the proposed development on to his property. However, as earlier noted, the amendments along the northern boundary resolve the specific amenity concerns raised for this property. Existing use rights 34In my consideration of how I should approach my determination of the matters raised concerning existing use rights, I concluded that, if the impact of proposed Apartment 4 on the heritage item at 19 Glenview Street was unacceptable, it was not necessary to determine the extent to which the existing use rights for a residential flat building on the site extended beyond the footprint of the existing building. 35I therefore considered it appropriate to take the applicant's case at its highest on those matters and to proceed to undertake a merit assessment of the various elements of the proposal. I have done so because, if I were to have concluded, as I have done, that proposed Apartment 4 was unacceptable because of its impact on the heritage item on 19 Glenview Street, I need not consider questions of existing use rights. 36I took this view because, as I understood the submissions by Mr Wilson, counsel for the council, did is not seriously contest that there are existing use rights for the present heritage item to be used as a residential flat building containing three apartments nor did I understand that there is any dispute that the existing carport structure forms part of the existing use rights for the purposes of providing parking for residents of those apartments. As a consequence, as I understood Mr Wilson, there is no inhibition, of an existing use rights nature, either to approval of the additions and alterations within the present structure or to the construction of the proposed underground car park. 37As a consequence, as set out below, I have undertaken the merit assessment without the necessity to reach a conclusion on the existing use rights matters that were seriously contested. The internal alterations and re-arrangement 38There have been a number of subsequent heritage studies undertaken of 19 Glenview Street after its initial listing in the council's study. Each of these, effectively, has described the heritage values of No 19 as being its exterior form when viewed in conjunction with a similar (but not identical) exterior built form on the adjacent property to the south at 21 Glenview Street. An example of this is the statement of the level of significance in a study by Colin Brady prepared in support of an application for additions and alterations to 19 Glenview Street. This heritage report includes an assessment of the significance of the item. It concludes, under the heading Level of Significance, with the following statement: It is concluded that the building at 19 Glenview Street Greenwich is of Local Significance by virtue of its history, aesthetic form, and relationship to the residence of similar form symmetrically located at 21 Glenview Street. 39Although this statement on the level of significance continues with the sentence: This significance has in part been reduced by unsympathetic internal alterations, additions to the rear and modifications of detailing and the setting, there is no suggestion that the overall basis of significance is anything other than the external relationship between 19 Glenview Street and 21 Glenview Street viewed in their juxtaposed context. 40Although Mr Moore expressed concern at the further loss of internal fabric that will result if the internal rearrangement to the premises is approved, there is nothing that can be inferred, from any of the historical analyses that are in evidence, that the local heritage significance of 19 Glenview Street is, in any way, dependent on retention of such elements of its internal fabric as might remain. It is clear to me that the importance originally ascribed by Mr Moore in 1987 and subsequently confirmed by all subsequent studies is confined to the nature of the comparison of the similar outward appearance of the two buildings. 41I also note, in his closing submissions, Mr Wilson did not press any matters relating to the loss of internal fabric as warranting refusal or contributing to the warranting of refusal. 42As a consequence, whilst the loss of additional internal fabric might be regrettable, there is no basis upon which I could conclude that that loss would, in any way, impact on the heritage significance of the building as that heritage significance is, I am satisfied, entirely based on the exterior presentation of the structure and its juxtaposition with its southern neighbour. As a consequence, there is no basis upon which I could reject the proposed interior alterations and rearrangement. The proposed additions in the roof space 43The proposed additions in the roof space comprise the dormer windows/balcony in the front ridge slope, a proposed structure somewhat similar to that in the front roof slope of 21 Glenview Street, and the addition of gable ended wing proposed to run to the west below the existing ridgeline of the building. 44The two heritage experts agreed that a similarity of the proposed front structure with that on the built form to the south did not warrant approval, in some form of heritage mimicry fashion, of such a structure for the present built form on the site. 45However it was Mr Staas's evidence that permitting such structures at such locations on heritage items was a generally acceptable approach for such heritage items and was, in fact, an approach that had been taken by this council to similar applications. Although Mr Moore objects to this structure, I am satisfied that it will not detract from the general comparability and understanding of the form of the two buildings whose listing is, as earlier noted, as a heritage pair. 46With respect to the proposed addition to the rear of the ridgeline of the existing roof, it is a much more sympathetic proposed addition than that which has, in the past, been approved on the adjacent heritage listed property. To the limited extent that this roof addition will be visible from Glenview Street, I am satisfied that it will appear to be sympathetic with the present structure and, given the more jarring nature of the rear structure on the other half of the heritage pair, is not unacceptable. 47As the windows in the gable end to this structure will be windows from the proposed master bedroom of Apartment 3 and will have their oblique view toward the upper rear open space of 17 Glenview Street at least partially obstructed by the roof of the proposed open gazebo for the north-western corner of the site, I am satisfied that there are no unacceptable overlooking issues for the adjacent property to the north. 48As a consequence, there is no basis upon which I could refuse either of the elements of the proposed additions in the roof space of the existing structure on the site. The proposed underground car park 49The proposed underground car park will require considerable excavation and will have a podium set back somewhat from the street frontage (in order to protect the Himalayan Cedar currently growing near the north-eastern corner of the site). To the extent that it is possible, the existing low drystone wall at the street frontage will be retained - although it will need to be cut for the purposes of excavation of the driveway entrance. The driveway entrance and the pedestrian access to the south of it along the street frontage, will represent between them approximately 50% of this frontage. They will be significantly higher than elements on either side of the site but will not be entirely inconsistent with the presence of the structures on the north-eastern corner of the property to the north at 17 Glenview Street. 50Excavation of the driveway will require removal of the more southern of the two trees in the present close front setback on the site. This tree, a Golden Cypress, is significantly smaller than the Himalayan Cedar earlier noted. The nature of these two trees is shown in the final of the four photographs extracted later from the heritage report prepared by Mr Staas. 51The council contended that the proposed underground car park and the excavation associated with it would have an adverse impact upon the heritage significance of the existing heritage item at 19 Glenview Street. The position of the heritage experts on this contention was encapsulated, in summary, in their contributions to the joint expert heritage report. In the joint report, Mr Moore said: I do not agree the proposed basement is a "general enhancement" of any value in the context of these items, because of its inappropriate, unacceptable impact on heritage significance. The long-enduring setting of these two houses, is obviously capable of sympathetic enhancement, and there is no need for certainty of it continuing in its current form. The garage entrance and terraced setting obviously change the setting of these houses in which the foreground emphasises the scale and height of the buildings. It will make disparate, and completely change the setting removing or making difficult chances of future, sympathetic foreground development. 52On the other hand, Mr Staas summarised his position as follows: The concealment of the current parking in relation to the presentation of the flat in building the street will be a general enhancement of the setting of the item which would otherwise continue in its current form to serve the existing residential flat use. The present driveway, carport, and scrappy garden setting is of poor visual quality and does not represent any significant or historical context for the building. The design of the new entrance and terraced gardens reflect the existing character of the adjoining site and would not have a significant adverse visual impact to the setting of either item. 53It is clear that the removal of the Golden Cypress, coupled with the removal of the carport and deletion of proposed Apartment 4 from the development, will provide significantly enhanced appreciation of the front of the house on 19 Glenview Street as well as enabling better oblique views of this structure and the adjacent other one of the heritage pair located on 21 Glenview Street. Although, on this aspect, Mr Moore expressed the views set out above, I am unable to agree with his position, particularly in light of the conclusion that I have reached concerning proposed Apartment 4's unacceptability in the heritage context of the pair of buildings. 54Although the entrance structures for both the pedestrian access to the site and the underground car park will, on the southern half of the site's street frontage, present a different appearance, as I have earlier noted, the removal of the Golden Cyprus tree and the comparative lowness of the podium of the car park coupled with the removal of the present visual clutter of the slats on the carport and the deletion of proposed Apartment 4 will ensure that there is, in fact, a better appreciation of the two heritage items, both individually and collectively. 55The car park and pedestrian access are not, themselves, so intrusive in the streetscape as to warrant refusal and are certainly significantly less intrusive in the streetscape than other structures that were observed during the course of the street walk. 56On balance, therefore, with the removal of proposed Apartment 4, I am satisfied that any detriment that might arise from permitting the pedestrian and vehicle entrance structures and the underground car park are sufficiently outweighed by the greater appreciation that will be able to be had not only of the single heritage item on 19 Glenview Street but also of the pair of items - this pairing constituting the underpinning basis for their listing in the LEP. Proposed Apartment 4 57Earlier set out was the statement of significance entitled Reasons for Listing in this Study for the 1987 heritage study for the council. This warrants repeating here as it is critical to an understanding of the disagreement between the heritage experts about the acceptability of the proposed residence are sought to be located on top of the podium of the underground car park. The reasons for listing is 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". 58As earlier noted, the council's fundamental objection to this element of the proposed development is what is said to be its inappropriateness by interference with the understanding of the interrelationship between the two houses at 19 and 21 Glenview Street. As with the discussion of the proposed basement car park and its associated, necessary excavations, the contrast being opinions of the heritage experts are encapsulated in the two relevant sections of the joint heritage report. 59The council's formal Statement of Contentions raised issues concerning this (opposed) freestanding dwelling in two separate topics within the contentions as addressed by the heritage experts. To enable an appreciation of their opinions and to understand the conclusion which I have reached concerning the unacceptability of this proposed dwelling, it is appropriate to reproduce a further four of the photographs contained in Mr Staas's report together with the captions for those photographs. These appear below as an introduction to this discussion: 60It is then convenient to reproduce the relevant elements from the joint report together with the contention element to which they are addressed. The first of these contention elements is as follows: The proposed new freestanding building in front of the existing building would have an adverse impact on the heritage significance of the existing heritage item, and upon the adjoining heritage item at No. 21 which is related to the subject building. 61In his contribution to the joint report on this point, Mr Moore said, relevantly: I do not agree that the form and location are similar in more than a mere "first impression" manner, of shape and location on site. The buildings will be clearly of a different purpose and substantiality, the one a carport, the other virtual house, set upon a very different ground condition. The proposed building will affect views to the existing house and will not be obvious as an outbuilding to the house as No. 21's carport is. It is a smaller house in front of the existing house and will change its status and appreciation on the site. While subordinate in physical size, the building is not subordinate in function as is the carport at No. 21. I do not think screening by vegetation would excuse its presence and injury to the setting of No. 19. 62On the other hand, Mr Staas's response to this element of the contention was in the following terms: The design of the new single storey structure was significantly modified through consultation with Council staff and the heritage adviser to the point where it was considered acceptable for this context and unlikely to have a significant adverse impact on the existing building or its relationship with the adjoining house. The form and location of the proposed structure is similar in form and scale although not in function to that approved by Council on the adjoining heritage site and does not affect any substantial available views to the items from the public domain. The new building is subordinate in scale to the existing building and will remain partially obscured from the street by the existing and proposed vegetation on the front portion of the site. 63The second element pressed in the council's contentions was put in the following terms: The proposed new building in front of the existing building would have an adverse impact upon the heritage significance of the existing heritage item. 64Mr Moore's analysis in the joint statement concerning this element of the contention was as follows: The design of the building does not overcome the adverse impact caused by its placement, scale, and function. It is a development of a far different intensity that at No. 21 and would be incapable of the change which remains possible at No. 21. I do not concur that the design is acceptable, for the reasons I have stated. The basic historical relationship is a key element of the significance of these buildings and will be confused and obscured by the proposed development, which would, if approved, likely encourage a similar damaging development at No. 21. A wide view line does not excuse or outweigh the presence of a building and terraced setting that diminishes the stature of the heritage item, and items, on their sites. These houses were clearly intended not to have substantial structures in front of them, and have not had them. 65The contrary opinion, expressed by Mr Staas in response to this element of the council's contentions, was in the following terms: The design of this building will have an acceptable level of impact on the heritage item and is not dissimilar to the approach approved on the adjoining item by Council. In regard to the attic additions it is similar to many other additions approved throughout the Local Government Area to heritage structures. The design was arrived at following consultation with the Council offices and the Council's heritage adviser who supported his application to the Council as being acceptable. The location of the single storey structure to the side of the site maintains a wide view line to the existing flat building and indeed to the adjoining house so that their basic historical relationship is still able to be understood and appreciated by the public. The basic relationship involved is of two large stone houses of similar design set back on an elevated site. This will not change. 66It is clear from the evidence of the two heritage experts, as set out above, that the difference between them concerning the appearance of proposed Apartment 4 in the front setback to 19 Glenview Street and the acceptability or otherwise its consequential impact on the heritage setting of 19 Glenview Street alone (and 19 and 21 Glenview Street as a pair) is stark. 67On balance, I prefer the evidence of Mr Moore and I do so not merely on the basis of the opinions he expresses but also, as discussed below, on my own impressions formed during the site inspection. 68First, I cannot accept that the proposed Apartment 4 structure for 19 Glenview Street has the same appearance and impact on its adjacent heritage item as the three-car garage in the front setback of 21 Glenview Street does. I have reached this conclusion based on a number of facts. 69The first is that the ridgeline of the garage at 21 Glenview Street is somewhat lower than the ridgeline of the proposed structure at 19 Glenview Street. The ridgeline of the garage at 21 Glenview Street is one with a low gable end to the street with the ridgeline receding behind it toward the house at 21 Glenview Street. The structure is, as a consequence, one that sits lightly in its context. 70Importantly, as Mr Moore observes, it is clearly a structure of which is subservient to the house (and, in my opinion, actively associates with this dwelling) on 21 Glenview Street. On 21 Glenview Street, there is flowing upward a lightly landscaped bank with a garden staircase compared to the more formalised lawn and low retaining walls above the southern part of the proposed car park structure at 21 Glenview Street. 71This combination of lightness and association cannot be applied to proposed Apartment 4 on 19 Glenview Street. It is bulkier, higher and closer to the street. I do not consider, for these reasons, that, although partially concealed by the Himalayan Cedar, it can be said to sit lightly in its setting compared to the relevant comparable element of the pair of buildings that form the basis for the heritage listing. 72The nature of the more complex roof structure for proposed Apartment 4 is not only the higher gable end facing the street but also includes a further ridgeline with gable ends at right angles to that. The ridgeline of proposed Apartment 4 running parallel to the street frontage thus presents in a fashion that is not recessive in context with the heritage item. 73In a contextual sense relevant for this heritage impact assessment (and not making this a comment in any sense of legal determination relating to existing use rights), proposed Apartment 4 is clearly a separate and disconnected dwelling in the front setback of the existing heritage structure on 19 Glenview Street. 74It is appropriate to note that the front setback and proposed roof height are consistent with those of 17 Glenview Street to the immediate north. However, the nature of the roof for the proposed Apartment 4 is sufficiently stylistically different from that to the north to discount (but not entirely eliminate) assistance from 17 Glenview Street in offsetting proposed Apartment 4 being viewed as not being subservient to or functionally associated with the heritage item itself. The very limited extent of this assistance thus provides no sufficient comfort to the applicant on this point. 75Just as the opening up of the view that the existing heritage structure as a consequence of the removal of the Golden Cypress is sufficient to overcome any visual impact of the pedestrian and car park entrances, the intrusion of a separate dwelling, I accept, significantly detracts not only from the view to the house on 19 Glenview Street but from the understanding of it as part of the heritage pair. 76The combination of these factors is that the heaviness of the Apartment 4 structure and its disassociated and non-subservient nature require the refusal of this element of the proposal. 77In my opinion, although the overall development will lead to a greater appreciation by passers-by of the appearance of the two principal structures in their side-by-side setting, to give any offsetting that occurs from this opening up to mitigate the unacceptability of proposed Apartment 4 would, in my opinion, constitute double counting as I have already had regard to the benefit of this opening up as part of my consideration in finding the underground car park's streetscape presentation and entrance and its modest podium, to be acceptable. 78A consequence of my conclusion concerning proposed Apartment 4 is that this will also lead to the deletion of the proposed communal open space on the top of the second bedroom of proposed Apartment 4. 79I consider that the development of an appropriate revised landscaping plan for the area of proposed Apartment 4 and the proposed communal open space, developed in a fashion so that it does not involve plantings that will have the effect of destroying the benefits of opening up of viewing of the structure on 19 Glenview Street (as a consequence of the removal of the Golden Cypress) can be left to be settled by the applicant with the council - if the applicant wishes to be given a development consent in terms that will follow from this decision. 80Directions have been given at the conclusion of this decision for the preparation and filing of revised plans to reflect the amendments adopted during the course of the hearing and to reflect the deletion of proposed Apartment 4. Directions are also given for the settling of revised conditions of consent to enable giving effect to this decision. However, if the applicant has not filed and served revised plans within the permitted time period or re-listed the matter before me pursuant to the leave given in the directions, the directions provide for a self-executing regime that will dismiss the appeal in its entirety without further reference to the parties. The trees toward the front of the site 81Two trees are growing toward the frontage of the site. The first of them is a Golden Cypress and the second is a Himalayan Cedar. These trees, on the photographic evidence, are a little over 20 years old. The more southern of the trees, the Golden Cypress, is proposed to be removed as part of the construction of the entrance to the proposed underground car park. 82The Himalayan Cedar, the significantly larger of the two trees, is proposed to be retained. The relative size of the two trees can be seen in the second and fifth of the photographs extracted from Mr Staas's statement of evidence and reproduced earlier as part of the discussion concerning the heritage impact on the properties. 83As earlier noted, in the heritage discussion, the removal of the Golden Cypress for the car park entrance will, in fact, open up to the viewing line to the front of the existing house on 19 Glenview Street and, as a consequence, this opening up is a sufficient contribution to the appreciation of the heritage value of the pair of houses at 19 and 21 Glenview Street to render this car park entrance acceptable. 84However, in the council's Statement of Contentions, the council raised an issue concerning the impact of the construction of the underground car park on the well-being of the Himalayan Cedar. 85A joint statement was tendered that had been prepared for earlier proceedings that have been discontinued (but which related to a proposed development on the site that had, as one of its elements, an underground car park that was, for all intents and purposes, identical to that proposed in these proceedings). That joint arboricultural statement, prepared by Mr English (on behalf of the applicant in those proceedings) and Mr Maish (on behalf of the council) disclosed an agreed position that the proposed car park could be constructed without having an adverse impact on the Himalayan Cedar provided a range of agreed conditions were inserted in the conditions of consent and complied with. 86In the council's draft conditions of consent concerning the current proposal, the arboricultural conditions for the protection of the Himalayan Cedar have been inserted from that earlier agreed position. 87As a consequence, accepting the uncontradicted joint arboricultural expert evidence and in the absence of any reason to question it, I am satisfied that those conditions are appropriate response to the protection of the Himalayan Cedar. Parking 88Although there was a dispute between the council and the applicant as to whether or not there was adequate parking proposed in the underground car park, the effect of my determination not to approve proposed Apartment 4 means that, on any basis of calculation, including whether or not the downstairs study of proposed Apartment 3 should be regarded as a bedroom or not, there is more than sufficient parking available for the apartments within the existing building able to be provided in the underground car park. Conclusion 89Taking the applicant's case at its highest and without needing to determine whether or not existing use rights on the site would extend to the erection of proposed Apartment 4, I have concluded that the heritage impact of proposed Apartment 4 would be unacceptable. 90As I have concluded that the remainder of the proposal would be acceptable with the deletion of proposed Apartment 4 and the provision, to the satisfaction of the council, of a landscaping plan for the portion of the front setback proposed to be given over to proposed Apartment 4 and the proposed communal open space atop its second bedroom, it is unnecessary for me to reach a conclusion concerning the proposed extent of existing use rights attaching to the site. 91Having reached that conclusion (as I did not understand that the council resisted there being existing use rights for a residential flat building on the site within the fabric of the existing structure and the additions and alterations proposed to it together with those existing use rights extending sufficiently to the present carport provided car parking arrangements on the site to validate the proposed car park), it is thus appropriate to set out the nature of the orders that will provide a limited development consent to the applicant and the directions necessary to reach that position. Orders 92As a consequence, therefore, the orders of the Court, when revised plans reflecting this decision are filed and served and revised settled conditions of consent are provided, will be that the appeal will be upheld and a development consent for alterations and additions to the existing structure at 19 Glenview Street, Greenwich to reconfigure it to contain three apartments together with underground car parking for six cars will be granted conditional development consent. The exhibits will be retained until final orders are made and the the appropriate exhibits will be returned. Directions 93To enable effect to be given to this decision, I give the following directions: (1)The applicant is to file and serve revised plans (reflecting the amendments made in the course of the hearing and by this decision requiring the deletion of the proposed Apartment 4) with those revised plans to be filed and served by the close of business on Friday 1 April; (2)The respondent is to file revised and settled conditions of consent, in hard copy and electronically to the Court by e-mail marked for my attention, by the close of business on Friday 1 April; (3)The matter is set down for mention before me at 9 AM on Wednesday, 6 April; (4)Liberty to re-list before me on one day's notice if there is in any dispute arising out of directions (1) or (2); (5)If directions (1) and (2) are complied with, I will make orders in chambers and vacate the mention on 6 April; and (6)If direction (1) is not complied with and the applicant does not request, prior to the close of business on Friday 1 April, re-listing of the matter pursuant to the liberty in direction (4), the appeal will be dismissed and the mention on 6 April vacated without further reference to the parties. Tim Moore Senior Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2011