Lucantonio v Concord Council - [2001] NSWLEC 52

Land and Environment Court

of New South Wales

CITATION: Lucantonio v Concord Council [2001] NSWLEC 52

PARTIES:
APPLICANT
Lucantonio
RESPONDENT
Concord Council

FILE NUMBER(S): 10174 of 2000

CORAM: Cowdroy J

KEY ISSUES: Development Consent :- Appeal against council's order requiring removal of unauthorised work - development not in accordance with conditions of consent - appeal dismissed

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 121B

CASES CITED:

DATES OF HEARING: 9/11/00, 10/11/00, 18/12/00

DATE OF JUDGMENT:
02/08/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr O Stichter (Solicitor)
SOLICITORS
Otto Stichter and Associates
RESPONDENT
Mr D Carson (Solicitor)
SOLICITORS
David M Carson, Lawyer

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 10179 of 2000
CORAM: Cowdroy J
DECISION DATE: 8/02/01

Paulette Lucantonio

Concord Council

JUDGMENT

1. By application class one filed on 29 February 2000, Paulette Lucantonio (“the applicant”) appeals against an order (“the order”) issued by the Concord Council (“the council”). The order was made pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). The order requires the removal of unauthorised works from a two storey dwelling (“the dwelling”) at 13 Archer St, Concord (“the site”) and modification of the dwelling to comply with plans lodged with development application 565/98.

History of applications for site development

2. A brick bungalow existed on the site prior to 1997. In April 1997 the council granted consent to building application 311/96 made by the applicant for construction of a garage at the rear of the site. Such garage was finished in bagged brick, rendered in a mustard colour and roofed with terra cotta tiles of two colours. These finishes did not accord with the usual style of a traditional bungalow of the locality.

3. On 2 October 1997 the applicant applied to the council for consent to construct a first floor addition to her existing dwelling (“application 311/97”). Application 311/97 proposed a bagged brick external finish and a tiled roof similar to the style of the garage. Various objections to application 311/97 were received by council. A report by the Council in the Field Committee, dated 18 November 1997, contained the following relevant statements:-

It would appear the greatest concern has been expressed regarding streetscape and whether the proposal is an appropriate response in terms of the existing character of the immediate vicinity. This is a difficult issue to address. The immediate vicinity is dominated by single storey period dwellings which remain relatively intact.
The proposal is in a prominent position on a corner block, and may set the tone for future development of the immediate area.

…
There is concern about the finish of the building which is to be bagged render and painted to match the garage. This is considered unacceptable. The building should be either face brick in keeping with the predominant material within the street or a smooth render and a neutral colour. A condition will be included covering the use of appropriate materials.

4. The Committee report recommended…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lucantonio v Concord Council

Details

AGLC: Lucantonio v Concord Council [2001] NSWLEC 52
Case: [2001] NSWLEC 52
Decision Date: 02/08/2001

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was asked to decide an appeal by Paulette Lucantonio against an order by Concord Council that she remove unauthorized work from her two-storey house at 13 Archer St, Concord, and modify it to comply with the plans supporting her development application. The council had granted consent for a first-floor addition to the existing bungalow, subject to conditions, but the council found that the construction did not comply with those conditions and issued the order requiring removal and modification of the dwelling. The court had to decide whether the council's order was justified and, if so, whether the court should dismiss the appeal or make any other orders. The court found that the applicant had deliberately constructed the dwelling contrary to the terms of the consent and that the council's order was justified. The court dismissed the appeal and ordered the applicant to comply with the council's order, except in relation to two points, and reserved costs. The court also ordered the exhibits to be returned.

Orders