Amendment of planning permit issue- neighbour from Hell

[mykie]

In 2009, I purchased a house on a large block which had town planning approved permits and plans to build at the rear, which I completed just recently. During the building phase I was notified by council that there was a complaint that had been lodged by my neighbour at the rear and that there might be an error in the floor levels at the rear of the property. Unfortunately after my surveyor checked the floor levels this turned out to be true and I had to pay a fine and apply for an amendment to the town planning permit and add in conditions to help reduce the issue of privacy because part of the house now overlooked the property at the rear’s backyard more than it should have as a result of the discrepancy in the floor levels. In consultation with the town planner I created conditions which would help reduce the issue which I considered more than reasonable and fair, especially considering my unit is only a single story and is hardly looking over my neighbours side anyway. I also consulted with all neighbours but the objector who didn’t want anything to do with me, and outlined to them the conditions which they were happy to sign off on. After council considered all evidence in front of them council eventually sent me a Notice Of Decision indicating that they were happy to approve the amendment. However now the objector has requested the matter be heard at VCAT at which I am told the earliest hearing is early next year! This has caused a huge concern for me as I have sold the front unit subject to sub-division, which I cannot get until this amendment is approved and I obtain a pass on the final inspection on the rear unit. My belief is because the neighbour has precluded any ability to reach a satisfactory outcome and has avoided any chance of mitigating with me a solution that would be fair and reasonable for both of us that I should be able to sue for damages? I was hoping somebody might be able to let me know too, how I might be able fasten this entire process up as it has nearly been a year now since it all began and with the earliest possible hearing being next year I was hoping somebody might have some clues as to what I might be able to do.

 

[brendio]

In 2009, I purchased a house on a large bloke.

Must have been a really large bloke if you can fit two houses on him!

In seriousness though, I can't help you with your other concerns, though I'm sure someone on here can give you some pointers.

 

[Aaron Sice]

what barrow is your neighbour pushing?

ask the neighbour directly what you can do to appease the situation.

otherwise ask planning to exercise their discretion in this instance to avoid VCAT - because even they don't want to go there.

 

[tubs]

Go find a barrister who deals with planning. You can apply for an expedited hearing in VCAT. I tried (and failed) to get one. There's a day list which gets heard every Friday, and you can get on it with about 2 weeks notice. If they agree your case warrants an early hearing you can get one.

But make sure you get a barristers advice on how to approach this because you'll only get one shot at it.

In VCAT each party pays their own way so your chances of suing are basically zero. They have a right (unfortunately) to object. It's stupid I know because people can delay you for months.

We used Craig Porter to represent us. If you want to try him, Google is your friend.

 

[mykie]

Must have been a really large bloke if you can fit two houses on him!

In seriousness though, I can't help you with your other concerns, though I'm sure someone on here can give you some pointers.

haha damn do I have egg on my face.

I hope somebody can help me, cheers.

what barrow is your neighbour pushing?

ask the neighbour directly what you can do to appease the situation.

otherwise ask planning to exercise their discretion in this instance to avoid VCAT - because even they don't want to go there.

The neighbour does not seem to be too approachable. On various occasions I attempted approaching her on solutions but she wasn’t having a bar of it and told me before slamming the door on my face that the matter would be dealt with by the council and by VCAT. I know for a fact that the original planning permit was objected to by also, it just seems she would rather the house not be there.

By planning, if you mean the council planning department than they have already excercised their discreation in my favour, problem is, now they are taking it to VCAT and I don't think there keen on any sort of mitigation. It just seems they want to delay me as much as they can as even council has told them they have little chance of achieving anything as there going up against the council and not just me.

Go find a barrister who deals with planning. You can apply for an expedited hearing in VCAT. I tried (and failed) to get one. There's a day list which gets heard every Friday, and you can get on it with about 2 weeks notice. If they agree your case warrants an early hearing you can get one.

But make sure you get a barristers advice on how to approach this because you'll only get one shot at it.

In VCAT each party pays their own way so your chances of suing are basically zero. They have a right (unfortunately) to object. It's stupid I know because people can delay you for months.

We used Craig Porter to represent us. If you want to try him, Google is your friend.

Thanks for the tip, I have been using Lionie kellaher thus far, but I don't think she can represent me in VCAT so I might give Craig a call.

 

[mykie]

Also, on the off and very slight chance that VCAT do not rule in my favour what is the most likely outcome that may occur?

The neighbour has signalled to council that she want a 5 metre wall separating our houses, however council rebutted this as extreme given it would be quite an inappropriate for the area.

In all seriousness, could they force me to knock down the far end of the house given it is completed?

 

[Aaron Sice]

sounds to me your neighbour is a NIMBY (not in my back yard).

she will probably have an issue with whatever you do, be it build a house or fart too close to the fence.

house is built? get a tenant in there. if not - sorry to hear

 

[mykie]

sounds to me your neighbour is a NIMBY (not in my back yard).

she will probably have an issue with whatever you do, be it build a house or fart too close to the fence.

house is built? get a tenant in there. if not - sorry to hear

house is finished, but I don't think I can get a tenant in there while all this stuff is going on? Id I did, I can't imagine the legal avenues the NIMBY would take then?

 

[Aaron Sice]

house is finished, but I don't think I can get a tenant in there while all this stuff is going on? Id I did, I can't imagine the legal avenues the NIMBY would take then?

pff - is there a law saying you can't put a tenant in there? it's not deemed illegal YET....unitl it is, you have every right to the maximum enjoyment / benefit of the property, bar selling it without disclosing the issue of course.

 

[handyandy]

Wouldn't have though you don't have a cert for occupancy so really you couldn't occupy.

If you do put a tenant in then just sign them to a very short lease so that you can evict them quickly if required.

Cheers

 

[Rockstar]

So where does the builders responsibility lie in all of this? Wasn't it him who made the error in the first place?

I would hope that common sense prevails for your sake and you get a quick and just result. I can't see VCAT changing councils judgement.

Good luck with a quick resolution.

 

[kero]

if the VCAT is anything like SAT here in WA, can't see why they won't decide to your favour.

i am putting $100 for you to win.

 

[Perp]

I also consulted with all neighbours but the objector who didn’t want anything to do with me

Am I reading this that you only consulted with people who didn't give a toss, but not the person who had shown an interest? I can understand that you may not want to talk to them face-to-face if hostile, but I assume you at least sent them plans for them to have the opportunity to provide written feedback? If not, I would think you're not going to have an easy run at VCAT.

After council considered all evidence in front of them council eventually sent me a Notice Of Decision indicating that they were happy to approve the amendment. ... I have sold the front unit subject to sub-division, which I cannot get until this amendment is approved

So is the amended plan approved by Council or not?

My belief is because the neighbour has precluded any ability to reach a satisfactory outcome and has avoided any chance of mitigating with me a solution that would be fair and reasonable for both of us that I should be able to sue for damages?

Nope. They have a right to object.

As for whether you can tenant the rear property, if the amended plans were approved and you pass the final inspection, I should think you'd get a certificate of occupancy and the building would be legal unless and until it is later deemed illegal.

 

[mykie]

Am I reading this that you only consulted with people who didn't give a toss, but not the person who had shown an interest? I can understand that you may not want to talk to them face-to-face if hostile, but I assume you at least sent them plans for them to have the opportunity to provide written feedback? If not, I would think you're not going to have an easy run at VCAT.


So is the amended plan approved by Council or not?

Nope. They have a right to object.

As for whether you can tenant the rear property, if the amended plans were approved and you pass the final inspection, I should think you'd get a certificate of occupancy and the building would be legal unless and until it is later deemed illegal.

I attempted vigorously to consult with the objecting neighbour about possible remedies and solutions, but as previously mentioned, on the instances when I tried to gage their feedback and consult with them I was told angrily that they didn’t want to speak to me and that it would be dealt with by the council and VCAT. She never was never interested in having a look at the remedies that I was proposing.

Council have issued a notice of decision saying they were going to approve the amended plans but cannot actually issue a permit due to the objectors have taken it further by taking it to VCAT.

I don't think I can have the place rented out as somebody said earlier, I dont have a certificate of occupany.

They may have a right to object but I am assuming not on a basis of a case that is frivolous and vexatious, in that case, should I win at VCAT I may have the ability to sue for damages.

 

[mykie]

So where does the builders responsibility lie in all of this? Wasn't it him who made the error in the first place?

I would hope that common sense prevails for your sake and you get a quick and just result. I can't see VCAT changing councils judgement.

Good luck with a quick resolution.

This is my first project and I am owner building the place. When I came across the error it was at around the same time the complaint was lodged and I immediately requested an amendment to the planning permit.

 

[Aaron Sice]

if the VCAT is anything like SAT here in WA, can't see why they won't decide to your favour.

i am putting $100 for you to win.

VCAT are more fascist than SAT - they have an agenda to push as WELL as hearing appeals.

 

[Perp]

I attempted vigorously to consult with the objecting neighbour about possible remedies and solutions, but as previously mentioned, on the instances when I tried to gage their feedback and consult with them I was told angrily that they didn’t want to speak to me and that it would be dealt with by the council and VCAT. She never was never interested in having a look at the remedies that I was proposing.

Oh, I see what you're saying, but aren't you required to consult in writing? Gosh, I wouldn't want to approach somebody personally, who I knew was hostile! Here in Brissie you have to send the neighbours a copy of the plans and invite written submissions. Doing it this way forces them to "put up or shut up", and state precisely on what grounds they object. It also hopefully gives them time to calm down and state their issue rationally, by having to write it.

Doing it in writing also creates proof that you attempted to consult. I'm surprised you're allowed to consult verbally; how would you ever prove that you attempted to consult?

Council have issued a notice of decision saying they were going to approve the amended plans but issue a permit as the objectors have taken it further by taking it to VCAT.

Still not clear to me - is there a missing "won't" prior to "issue a permit"? If so, then I think I understand: a permit was on it's way, but held up when the objection was filed at VCAT? Bummer.

They may have a right to object but I am assuming not on a basis of a case that is frivolous and vexatious, in that case, should I win at VCAT I may have the ability to sue for damages.

It would be extremely difficult to win such a case. How do you know or prove that they're being frivolous and vexatious? Even if it's just that they don't want anybody living there, I seriously doubt that that would rise to "frivolous and vexatious". F&V would only cover far more extreme circumstances, eg a bitter ex-spouse who lives 3 suburbs away objecting purely to make your life difficult, or something similarly bizarre. But if they have any objection about the development itself, even if it's found to be unjustified, or insufficient to prevent development, won't fall in the F&V container, I'd be willing to bet.

I know it's frustrating, and I'm feeling for you. I just don't think you've got a legal remedy.

If you want a recommendation on the best practical move forwards, rather than legal rights, or what would be just, I have a suggestion. Get your draftsman/architect/planner to write to, phone, or visit the neighbour, and see if a more detached third party can find out what the specific nature of their objection is. It may be that the problem will, in fact, be very simply solved, if the neighbour feels that their concerns are heard, and that you're trying to accommodate them. This will be quicker and cheaper than going to VCAT, even if it means you have to make slightly more modifications than you intended.

Ensure the planner (or whoever) is a good listener, and really good at making the neighbour feel heard. They'll need to be an excellent communicator, and if they're really good, they may even be able to explain to the neighbour "look, I understand that this change is difficult for you, but I've been to Tribunal a thousand times before and this property's going to go ahead. I think if it goes to Tribunal it will probably get through unmodified, but if you can tell us exactly what you'd like to try and address your concerns, the owner may be willing to do it in order to avoid the delay. Use this to your advantage! If you'd like more plants on your side of the fence, or some windows frosted, now's the time to try and negotiate that."

Good luck!

 

[mykie]

Oh, I see what you're saying, but aren't you required to consult in writing? Gosh, I wouldn't want to approach somebody personally, who I knew was hostile! Here in Brissie you have to send the neighbours a copy of the plans and invite written submissions. Doing it this way forces them to "put up or shut up", and state precisely on what grounds they object. It also hopefully gives them time to calm down and state their issue rationally, by having to write it.

Doing it in writing also creates proof that you attempted to consult. I'm surprised you're allowed to consult verbally; how would you ever prove that you attempted to consult?

Still not clear to me - is there a missing "won't" prior to "issue a permit"? If so, then I think I understand: a permit was on it's way, but held up when the objection was filed at VCAT? Bummer.

It would be extremely difficult to win such a case. How do you know or prove that they're being frivolous and vexatious? Even if it's just that they don't want anybody living there, I seriously doubt that that would rise to "frivolous and vexatious". F&V would only cover far more extreme circumstances, eg a bitter ex-spouse who lives 3 suburbs away objecting purely to make your life difficult, or something similarly bizarre. But if they have any objection about the development itself, even if it's found to be unjustified, or insufficient to prevent development, won't fall in the F&V container, I'd be willing to bet.

I know it's frustrating, and I'm feeling for you. I just don't think you've got a legal remedy.

If you want a recommendation on the best practical move forwards, rather than legal rights, or what would be just, I have a suggestion. Get your draftsman/architect/planner to write to, phone, or visit the neighbour, and see if a more detached third party can find out what the specific nature of their objection is. It may be that the problem will, in fact, be very simply solved, if the neighbour feels that their concerns are heard, and that you're trying to accommodate them. This will be quicker and cheaper than going to VCAT, even if it means you have to make slightly more modifications than you intended.

Ensure the planner (or whoever) is a good listener, and really good at making the neighbour feel heard. They'll need to be an excellent communicator, and if they're really good, they may even be able to explain to the neighbour "look, I understand that this change is difficult for you, but I've been to Tribunal a thousand times before and this property's going to go ahead. I think if it goes to Tribunal it will probably get through unmodified, but if you can tell us exactly what you'd like to try and address your concerns, the owner may be willing to do it in order to avoid the delay. Use this to your advantage! If you'd like more plants on your side of the fence, or some windows frosted, now's the time to try and negotiate that."

Good luck!

Thanks for the tips.

Yes, the permit was on the way before the objection came up.

I have already consulted with the town planner to help negotiate a solution. The town planner has worked as a mediator between us both. I detailed 3 ideas to help resolve the issue which I put to the town-planner to put to the objector. They included frosting the windows to the rear of the property that faced the neighbour, planting trees of a certain pot size to provide a screening and rising the fences to a height of 1.2m. These measures were more than they ever would have got if everything went to plan but they still were not happy and continued to take the avenue of taking it to VCAT. When I spoke to the town planner and pleaded with her as to what they were wanting, the objector wanted a ridiculous 6m wall on the fence line, this was obviously rebutted by the council as it would have been deemed in appropriate for the area and extreme given the slight flaw that has occurred.

 

[Rockstar]

the slight flaw that has occurred.

What was the difference in floor level?

 

[tubs]

I've had another read of your OP.

It seems that your neighbour is being frivilous, although not necessarily vexatious. Asking for a 6m fence is absurd, and that demonstrates it being frivilous. If you are a small amount higher, then you should simply raise the fence by that much.

The council has approved it but unfortunately because it needs a planning permit your neighbour has taken the opportunity to object.

I would lodge with VCAT as soon as possible. You have no choice but to do this. Your neighbour has a legal right to appeal the council's decision, and by the sounds of it will not negotiate.

Also, since you have sold the front property subject to subdivision then this is holding up the sale, and will have financial implications if it is not passed. You have done everything in good faith, and done all the right things from a planning point of view. And it is a very simple matter. So I think this is a good chance of getting an early hearing.