Carroll v Lane Cove Council

Land and Environment Court

New South Wales

Case Title:

Carroll v Lane Cove Council

Medium Neutral Citation:

[2011] NSWLEC 1223

Hearing Date(s):

2 and 3 May 2011

Decision Date:

03 August 2011

Jurisdiction:

  Class 1  

Before:

Murrell C

Decision:

(1)The appeal in respect of the property known as 24 Wallace Street, Greenwich is upheld.
(2)The development application submitted to Lane Cove Council, and as amended and shown in exhibit M, is determined by the granting of consent, subject to the conditions in annexure A.
(3)The exhibits are returned to the parties with the exception of C, M, N, O and exhibit 9.

Catchwords:

APPEAL - Demolition and Erection of dwelling house; impact on heritage conservation area and adjoining heritage items, impact on streetscape, impact on views and privacy; setback from street; height of building and whether trafficable carport roof is appropriate in streetscape and its precedential effect

Legislation Cited:

Lane Cove Local Environmental Plan 2009

Cases Cited:

Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 (3 August 2009)
Goldin and Another v Minister for Transport [2002] NSWLEC 75
Pafburn v North Sydney Council [2005] NSWLEC 444 (16 August 2005)
Super Studio v Waverley [2004] NSWLEC 91
Zhang v Canterbury City Council [2001] NSWCA 167

Texts Cited:

Category:

Principal judgment

Parties:

Greg and Collette Carroll (Applicant)

Lane Cove Council (Respondent)

Representation

- Counsel:

Counsel
Mr G McKee, Solicitor (Applicant)

Mr S Griffiths, Solicitor (Respondent)

- Solicitors:

Solicitors
McKees Legal Solutions (Applicant)

Pikes Lawyers (Respondent)

File number(s):

11008 of 2010

Publication Restriction:

Judgment

1. The applicant in these proceedings is seeking to construct a part two and part three-storey dwelling house on and the land known as 24 Wallace Street Greenwich.

1. The appeal lodged with the Court was against the deemed refusal of the Council. However, leave was subsequently granted to change it as an appeal against conditions that attached to the consent granted by the council. In essence, the conditions appealed are in respect of a reduction in the ridge height of 600 mm, such that the ridge RL was not to exceed 39.231. That is condition 2(a). The other condition that the applicant is appealing is condition 2(b) that: the trafficable roof-terrace over the carport must be deleted and replaced with a non-trafficable roof.

Site and environs

1. The subject site is shown in the aerial photograph at figure 1. The western boundary of the site adjoins the footpath of the unformed portion of Upper Serpentine Road and at this point the land falls steeply away to the Greenwich Reserve on the foreshores of the Lane Cove River. The site rises gradually from the front boundary of Wallace Street to the rear boundary by approximately 3 m.

1. Wallace Street is a no through road, finishing where there is a dramatic drop in topography and the subject site is the last one on the southern side of the street. The site is within the Greenwich Heritage Conservation Area (HCA).

1. Currently on the site there is an existing two-storey…