Lucantonio v Concord Council

On 14 July 1998 a meeting took place between Mr Fleming, Mr Dean Lucantonio, the applicant's husband and builder of the dwelling, and Mr Jon Mathias the applicant's architect. The meeting was convened for the purpose of formulating a development application that was acceptable to both the council and the applicant. As a result development application 565/98 ("the development application") was lodged with council on 2 September 1998. The development application provided for the demolition of the existing bungalow and the erection of a new two-storey brick veneer house compatible with the existing style of bungalow and in accordance with certain architectural drawings. The development application was supported by a statement of environmental effects by Mr Mathias together with coloured architectural drawings ("the development plans") prepared by him and bearing his name. The statement of environmental effects noted that the council was not in favour of the contrasting two tone effect of the garage roof tiles nor the strong yellow-ochre colour finish of that building. Mr Mathias included the following description of the proposed new dwelling:- This house has been designed to meet the above performance objective by relating it as sympathetically as possible to the single storey Californian Bungalow style of houses in the street.

Elements that relate to this style include the large areas of pitched roof with unglazed terra cotta tiles, gables and intersecting gables with horizontal weatherboard spandrel panels and the horizontal emphasis of the verandah roofs with minimum support and the rendered banding on the brickwork.

The roof has been brought down fairly low to help it fit more with the single storey character of the street. The face brick will be selected from the range of existing red bricks in the street and the rendered banding will be sandstone coloured to emulate the sandstone foundation block typical of many bungalows including the existing one on this site.

In addition there will be timber casement windows, columns with modified classical references and the existing stone work will be re-used in the rear terrace steps the front plinths to the columns and/or as garden edging.

This design should make a positive contribution to the pleasant character of the street.

On 27 October 1998 council considered a report by Mr Flemming in relation to the development application. This report noted, inter alia:- Materials and finish: Concerns were also raised with the previous Building Application in terms of the finish of the building and in particular the use of a rendered and painted finish to match the existing garage to the rear. The current design proposes to utilise a combination of face brick and render in the form of banding. This is seen as a reasonable compromise to the full rendered option proposed in the first application and is supported.

CONCLUSION: The style and finish of the dwelling would be sympathetic with adjacent buildings and the immediate streetscape and the front elevation of the dwelling, particularly the attic style gable and roof would give the impression of a bungalow-style dwelling. The design is considered an improvement over the previous application.

The proposed dwelling is not considered excessive in size or scale. Concerns regarding setbacks, building height envelope and privacy have been addressed. The applicant has made a number of concessions in order to address concerns raised by the objectors, and Council, and it is therefore recommended the application be approved.

On 27 October 1998 council resolved to approve the development application. A notice of determination of a development application was issued to the applicant by the council dated 16 November 1998 ("the consent"). The following provisions from the consent are of relevance:- G1(a) This Development Consent does not constitute approval to carry out building work. Building work may only commence upon compliance with the following conditions and the issue of a CONSTRUCTION CERTIFICATE. G1(c) The building must be erected in strict conformity with the plans and specifications approved by Council (enclosed herewith) and the conditions hereon specified and in compliance with the requirements of the Environmental Planning Instruments, Local Government Act 1993, Building Code of Australia and Council's Codes and Policies. G1(d) The erection of a building in accordance with a development consent must not be commenced until: (a) detailed plans and specifications of the building have been endorsed with a construction certificate by: (i) the consent authority, or (ii) an accredited certifier, and … X9 The form, materials, colour, finish and texture of the proposed dwelling shall, as far as practicable, reflect the character and style of the immediate streetscape. In this regard, the applicant shall submit samples of proposed brick, tile and details of the architectural finish prior to the issue of a certificate of construction.

X10 The application is to comply with council's code for floor space ratio, taking into account the requirement of the code for verandahs.

On the 15 December 1998 the applicant lodged a Schedule of Finishes ("the schedule") with council pursuant to condition X9 of the consent. The schedule described the cement render of exterior walls as, 'Cement render exterior walls murobond paint -tuscan colour'. The colour of the exterior wall was described as 'tuscan' and a colour sample was attached. For roofing material the schedule proposed, 'Roof Tiles -unglazed terracotta' and attached was a colour photograph showing two orange terracotta tiles bearing the caption, 'natural clay'. The schedule described the external timberwork as 'Murowash -Tuscan colour same as walls'. The other features described in the schedule were as follows:-

· Windows - Natural Western Cedar · Handrails External - Black Satin · Gutters (where visible) - Natural Copper · Brickwork by Boral - "Burwood Black" as per sample

The applicant submitted construction plans ("the construction plans") to council pursuant to condition G1(d) of the consent. Such plans were drawn in black ink on white paper and bore the name of the applicant's architect, Mr Jon Mathias, and the date 8/98. They appear to show a dwelling identical to the dwelling shown on the development plans. However on close scrutiny it is apparent that there are differences between the two sets of plans relating, inter alia, to the finish of the gable ends and the roof line, including the roof line over the proposed family room.

The construction plans were approved by council on 27 January 1999. The certificate of construction issued by council bears the following notation:- As the Principal Certifying Authority, Concord Council certifies that the work if completed in accordance with these plans and specifications will comply with the requirements of s 81A(5) of the Environmental Planning and Assessment Act 1979. The council does not seek rectification of the roof line alterations.

The applicant proceeded with the erection of the dwelling. The council contends that the dwelling is different in many respects from the proposed dwelling the subject of the consent and has accordingly issued the order to require the dwelling to comply with the plans lodged in support of the development application.

For convenience the Court will state the submissions of the parties in respect of each of the matters in dispute.

The schedule provided to the council nominated the type of roof tiles to be used by the applicant as unglazed terracotta tiles of 'natural clay'. However, on the dwelling the applicant has used unglazed terracotta roof tiles of natural clay colour intermingled with tiles of ivory colour. This has produced a mottled appearance identical to that of the garage roof.

The applicant maintains that the construction plans showed 'unglazed terracotta' roof tiles and since such tiles have been provided there is compliance with the consent.

The dwelling has eleven circular columns surrounding it. Consent was given for the construction of six columns. Also, the columns used in construction are of a different style. The applicant acknowledges that the number of columns has increased but states that the style of columns proposed in the development application was impractical.

Firstly, a window has been constructed on the ground floor of the house at the southern end of the eastern elevation where the construction of bi-fold doors was approved by council. The applicant acknowledges this departure from the terms of the consent. Secondly, a window has been constructed at the northern end of the western elevation with a lower sill height than that approved by council. Thirdly, on the first floor at the southern end of the western elevation is a larger window than that approved by the council. Finally, a ground floor window between the columns on the western elevation is larger than that approved by council.

The applicant submits that the approved development and construction plans do not show window dimensions and alternatively submits that the windows as constructed do not affect the amenity or the privacy of neighbouring residences.

All windows in the house have been constructed with rendered surrounds that are raised above the external walls. The applicant submits that the construction plans show raised surrounds to the windows. The council submits that raised surrounds were not shown on any set of plans approved by council.

Both the development and construction plans indicated barge boards to the projecting gables. However, the dwelling has been constructed without such barge boards. Instead, corbelling in the same style as on the garage has been used. The applicant admits that no barge boards have been used but claims that corbelling is shown on the construction plans.

The plans accompanying the application for development consent specified "Top sections gables selected weatherboards' for gable ends. However Mr Lucantonio altered the construction plans. Although the appearance of the weatherboards remained on the plan, he erased the words, 'Top section gables selected weatherboards' and substituted the words, 'combination face brick and cement render'. The gable ends of the house have been bricked up and completely rendered.

The balcony shown in the plans represented an open structure with a galvanised steel railing. The applicant has instead constructed the balustrade of the balcony in brick giving the dwelling an entirely different appearance to that proposed by the plans. The applicant submits that because the floor of the balcony was lowered this resulted in a higher finish. The balcony is approximately 700 mm higher than that approved by council.

The council states that both the approved development plans and the approved construction plans show an external finish predominantly of 'Burwood Black' face brick with one band of cement rendering extending beneath the window sills to the first floor level. The house as constructed has been completely rendered in yellow ochre, which is the same colour as the garage. The applicant submits that she informed council, by letter dated 22 January 1999, that she was proposing to adopt the same external finish for the house as that used on the external walls of the garage. Further, the applicant submits that council failed to respond to such a letter.

Mr Brian McDonald, an architect and urban planner retained by council, inspected the site in November 1999 and on 8 June 2000. He reported as follows:-

3.4 There are so many departures from the external appearance depicted in the approved plans that there is no resemblance whatsoever between the building nearing completion and what the Council believed it had approved for construction. In November 1999, I provided a list of items noted. This list is at Appendix 1 with notations added to indicate some of the work done since. In my opinion the applicant has done everything possible to recover the pseudo Tuscan appearance of the previous applications to which the Council had refused consent - clearly indicating this was his intention all the time. 3.5 Had the design of John Mathias been followed the building would have, although larger in size than others in the immediate vicinity, fitted harmoniously in a streetscape of predominantly brick and tile single storey transitional Federation/1920s California bungalows. Despite a few less sympathetic more recent constructions in the locality there is a very consistent streetscape character in this part of Concord. 3.6 The building now standing at 13 Archer Street is significantly out of character and due to its external design, it is out of scale with its suburban context. Its location on a corner block makes the intrusive nature of the building even worse.

3.9 CONCLUSION The work has proceeded to include render of all brickwork and substantial completion of an out of character, out of scale and very prominent pseudo Tuscan Villa in a streetscape of predominantly Transitional Federation/1920's California bungalows. It is clearly contrary to the Federation character of the approved application design. I support Council's requirement to have the building modified to fit into its urban context properly and display better civic manners. Mr McDonald was not cross-examined and the Court can draw the inference that his evidence, as a matter of fairness to the council, is not contradicted (see s 46(2) Evidence Act 1995 (NSW); Browne v Dunn (1893) 6 R 67; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1). The applicant's evidence

Mr Newlin Mazaraki, architect, testified for the applicant and confirmed that the dwelling as constructed is quite different in appearance to that shown in the development plans. Mr Mazaraki acknowledged that there had been departures by the applicant from the development plans, specifically the number of columns, the window construction, the barge boards and the corbelling. He considered that the type of corbelling shown on the construction plans was not the type of corbelling used on the dwelling.

Mr Lucantonio testified that he had forwarded a letter to council on 22 January 1999. The letter stated as follows:- To confirm our telephone conversation today we advise the following:

At this stage we are unsure of how much or where we would like to see the face brickwork. We will give it some thought as its not a crucial decision that needs to be made now, our aim though, as previously expressed, is to keep the detail in close harmony with the recently approved and completed garage, although the render to the upper floor will be smoother in texture, and the render to the ground floor will be smooth with indents as indicated on the elevations. As our garage is the most recent building constructed, and it is situated on the same parcel of land as our proposed residence we will be using this building as the basis for detail for the construction of the new residence in accordance with the DA consent condition X9. Mr Lucantonio testified that six days after forwarding the letter by post he also sent a facsimile to the council because he was anxious to receive a response. The facsimile sheet tendered in evidence shows the date 28 January 2000. Council has no record of having received the letter, either by mail or by facsimile and the council officer named in the letter, Ms Sophie Surdich, has no recollection of having any conversation with Mr Lucantonio concerning the finish of the walls as claimed by him.

31. It is apparent that the applicant desired a dwelling of the same architectural style as the garage, which had been firmly refused by council for the specific reason that, 'any such dwelling would not be in keeping with the area'. The applicant was therefore well aware that council would not approve such a dwelling.

32. Mr Mathias testified that he was unaware of the alterations that had been made by Mr Lucantonio to the development plans. A letter written by Mr Mathias to Mr Lucantonio dated 23 June 2000 establishes that he did not approve of the alterations to his plans and that he regards the alterations made to the roof and eaves as changing 'the whole concept of the design'. Additionally, Mr Mathias has not been called as a witness in circumstances in which his testimony might have assisted the applicant. The Court is entitled to draw the inference that his testimony in respect of the contested items would not have assisted the applicant in accordance with the principle in Jones v Dunkel (1959) 101 CLR 298.

33. The order lists 15 distinct elements of non-compliance with the consent and with the schedule:

1. The roof tiles used on the dwelling are not in compliance with the schedule;
2. The columns are different in style and in a greater number;
3. There are piers five courses in height beneath the columns to the western elevation and south-west corner of the dwelling;
4. The proposed window to the south end of the eastern elevation has been replaced with bi-fold doors;
5. • 8. Several windows are larger than proposed in the development plans and construction plans and the window surrounds constructed are not detailed in the construction plans;
6. There are no barge boards;
7. There is a 'jerkin head' to the eastern area of the roof;
8. The gabled ends to the dwelling have been bricked up and completely rendered;
9. There has been an alteration to the balcony the result of which has been to give the appearance of a more enclosed structure than that proposed by both sets of plans;
10. There has been rendering of the first floor external walls;
11. There is no selected red face brick, nor is there rendered bands in sandstone colour, instead the whole house has been rendered;
12. The finish has been altered by the addition of detailed corbelling.
13. The Court therefore finds that each of these works was unauthorised. Council does not however seek any order in relation to the 'jerkin head'.

The applicant has constructed a house which appears substantially different from that which was shown in the development plans, and which differs from the construction plans. The dwelling contains none of the important finishes as stipulated in the schedule and required under condition X9 of the consent. The applicant knew that such dwelling would not have been approved by council and is accordingly development without consent. The Court finds that the issue of the order by council was justified.

The question remains whether the Court should dismiss the appeal under s 17(d) of the Land and Environment Court Act 1979 or to revoke or vary the order, or to make any other order, under s 121ZK of the EP&A Act.

The Court has given consideration to the following matters:-

The construction plans were approved by the council:- The council does not press for alteration to the roof line as modified by Mr Lucantonio in the construction plans. However, the council does seek rectification of the gables. Since such alterations were made to the construction plans, and approved by council, it is bound to accept such alterations.

The style of the dwelling is compatible with current development in the area:- In close proximity to the site are numerous other dwellings which have been approved by the council and which have either been recently constructed or are in the course of construction. These dwellings are of a variety of styles or finishes, many of which do not accord with the description of ' single bungalows of a traditional style '. The Court notes the observations of Mr Mazaraki that the styles of building in this area are changing. It appears that the applicant deliberately sought to achieve one of the newer 'Tuscany' styles rather than the traditional style of development for which development consent was granted. Despite similar developments in the municipality no right existed for the applicant to construct the dwelling otherwise than in accordance with the approved plans. 40. The impact of the dwelling on the streetscape is significant:- The dwelling is located on a prominent street corner. Also, the appearance of the house is incongruous with the traditional single storey style of most residences in the street. It was due to the position of the dwelling on a prominent corner and the need to preserve the streetscape that council declined to grant permission for the first floor addition to the original dwelling as proposed by application 311/97. The garage, erected at the rear of the site, does not possess the prominence of the house and it does not have the same impact upon the streetscape. 41. There was an alleged notification to the council of the alterations:- Mr Lucantonio did not receive any response to his letter of 22 January 1999 purportedly notifying the council of proposed alterations to the plans and finishes as submitted and in the events which have happened it is not necessary for the Court to make a finding that such letter was received by council. It is surprising that Mr Lucantonio proceeded to build the house without obtaining the directions he referred to, especially as he regarded a reply of great importance and his proposal was directly contrary to known requirements for the site. In relation to rendering the wall finish and the roof tiles Mr Lucantonio also alleges that he spoke to a council receptionist, Ms Surdich, who informed him that he could provide finishes to the dwelling as he wished because the dwelling was not a heritage building. The Court cannot be satisfied that such conversation occurred. It is in any event irrelevant because Mr Lucantonio, being a builder, must have known that a receptionist would not be authorised to make such a concession and that such a concession would be unlikely in view of the history of the development applications for the site. 42. The applicant's awareness of procedure:- The Court is satisfied that Mr Lucantonio was aware that certain procedures would need to be followed to permit any departure from the construction of the dwelling as provided by the consent. After the rejection of the original plan to develop a first floor of the bungalow Mr Lucantonio wrote to council threatening to appeal to the Land and Environment Court and said, inter alia:- Both my wife and I have decided that this correspondence will be our last before we appeal to the land and environment court, we have already urged our solicitor to initiate proceedings but at his request write this letter as a last attempt to make Council see commonsense and realise that we have no alternative but to continue with the current architectural style, any attempt to try and condition us, and intimidate us to adopting anything less than what we already have in terms of new construction is frivolous and will only result in expense on Concord Council's behalf as well as our own in having to proceed with the land and environment court to gain an approval that should have been granted by Concord Council. Although the letter was written in relation to a previous development application, which was rejected, the inference can be drawn that the applicant at all times was determined to construct a dwelling of her own choice and was well aware of her legal rights in her dealings with the council.

43. Mr Lucantonio referred to all of the departures from the plans as being matters of 'detail'. As such, there is no reason why they should not be altered to conform to council requirements even though some cost will be incurred as these departures were deliberately contrary to council's requirements. Whether the council is prepared to make any concessions is entirely a matter for its determination. Accordingly, the Court finds that the applicant is to comply with the order of council dated 3 February 2000 with the exception of points 10 and 11 contained in the order.

1. The applicant comply with the whole of the order of council dated 3 February 2000 except points 10 and 11 of the order.
2. Costs reserved.
3. The exhibits be returned.

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