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Valero Holdings Pty Ltd v Lane Cove Council.

País/Territorio
Australia
Tipo de la corte
Otros
Fecha
Mar 23, 2011
Fuente
UNEP, InforMEA
Nombre del tribunal
Land and Environment Court of New South Wales
Juez
Moore.
Número de referencia
[2011] NSWLEC 1067
Idioma
Inglés
Materia
Medio ambiente gen., Tierra y suelos
Palabra clave
Desarrollo sostenible Patrimonio cultural
Resumen
This case concerned an appeal against Council’s refusal of a development application for alterations and additions to a heritage house which was being used as a residential flat building. The appeal was upheld subject to the deletion of one of the proposed apartments on the basis that it would have an unacceptable heritage impact. The issue of existing use rights was also discussed but was not determinative. The proposed development was for alterations and additions to the existing house, the excavation and construction of a predominantly underground car park, the erection of a fourth apartment (Apartment 4) on top of part of the podium to the proposed car park, and internal alterations to the existing house to reconfigure the three existing apartments. The proposed structure was compared to the three-car garage on the adjacent heritage property, however it was held that the proposed apartment was bulkier, higher, closer to the street, did not sit lightly in its setting and was not recessive in context with the heritage item. It was clearly a separate and disconnected dwelling in the front set back of the heritage structure and would detract from the existing house being seen as part of a heritage pair. Consequently, the Senior Commissioner held that the ‘heaviness’ of the Apartment 4 structure and its dissociated and non-subservient nature meant it would have an unacceptable heritage impact and as such required the refusal of this element of the proposal. An issue in dispute between the parties was whether there were existing use rights for a residential flat building, and if so, the extent of the site to which these rights attached – for example, would the proposed new apartment above the car park be included in the existing use rights? In relation to this issue, the Senior Commissioner considered that the Council did not appear to seriously contest that there were existing use rights for the use of the building as a residential flat building. As such, the only existing use rights issue for determination was whether the extended beyond the footprint of the building – that is, to the proposed Apartment 4 on top of the car park. On this point, Senior Commissioner Moore noted it would only be necessary to assess this issue if Apartment 4 was found to be otherwise acceptable. As Apartment 4 had been refused on the basis of its impact on the heritage value of the building, it was not to reach on conclusion on this issue.