Advice needed

Hi there,

I was wondering if anyone here had experience whereby a plan and permit was approved by council, but yet my neighbour had opposed to our plan and decided to bring me to VCAT.

The reason being:
1. Our proposed for 3 storey unit, which we had amended to 2 storey before plan and permit approved
2. Front set back average according to our neighbour is 9m, in which council had approved for 7m
3. They needed 5 hours of sunlights, according to our neighbour that our townplanner had fabricated the report. Our planner had provided all the shadow diagram on a few hours of sunlight and it did not show any shadow will fall through their windows.
4. They are worried about asbestos on the current existing property, which is not part of council plan and permit submission and we had provided our builder response on how asbestos house to be demolish.

Currently my town planner is planning to charge me around $10K to proceed with this case against our neighbour through VCAT. And timeline will take 6 months to tackle.

Anyone could give me some idea, if we could claim this $10K back from our neighbour, if we to win this case? Anyone had experience on such cases with the above reason that there is a chance that I might lose this case? What do you think about the 10K cost?

I appreciate any inputs from anyone.

Thank you

 

1. VCAT is a no costs jurisdiction I believe. So generally not, although there are probably some exceptions too.

2. No one can tell from the info provided.

3. Again, can't really tell without more info.

Not sure why points 1 and 4 are even relevant though? Is that what's on the appeal notice?

 

The only thing that sounds like a risk is the shadow diagrams - if they are wrong then you might be in trouble. The problems you describe don't sound like death knells though. It is normal for shadow diagrams to only show selected hours of the day and not show window penetration.

Hard to say on the $10k without knowing the details, but that kind of cost isn't uncommon at all. You won't be able to get it back though.

 

Thanks for the above replies, I attached the full appeal from my neighbour.

At current I am only given an indication of the fees, but a full breakdown will be presented in the coming days.

Any thoughts or input will be helpful.

 

1. You can only seek costs if the appeal is deemed to be frivolous or vexatious - it's difficult to prove and only happens in rare circumstances. So the chance of claiming costs is remote
2. timeline is more like 12 months not 6 at VCAt at the present time
3. Item 4 asbestos etc - not relevant, there is seperate legislation covering that
4.10k is a reasonable cost, but, you will need to be absolutely sure your documentation is up to scratch and accurate - an application can be rejected if there is a lack of information
5.Have you considered paying little more and getting planning lawyer?
6. Consider paying small fee and getting a second opinion

 

Fight it and fight hard, once they have got this over you, they will apply for a similar sized development and you won't have a snowball's chance in hell of getting yours approved as the density on next door's block will be so much greater than at present and you will have many more issues and neighbours to contend with. Address the issues raised in all of their objections if that is part of their claim.

@Tufan Chakir suggests a reasonable course of action.

Ensure that point 1 - all documentation is correct (is it 6 or 7 units, two or three storeys/mix of both), has the neighbour simply viewed the neighbour notification plans or the complete set of approved documentation?

Point 2 i)Setback - which has precedent the existing setback line or the lesser condition of 7 m in the DCP/LEP?

Point 2 ii) - overshadowing/daylight, this will be in the standard. WFH is temporary and optional.

Point 2 iii) - quanitify "significant impact", does the existing fencing cause shadowing? How much additional shadowing will the construction cause? Is the yard utilised?

By the sound of it, the permitted use of the blocks are units ie more intensive than the current single dwellings. The neighbour has a lot more to gain by preventing you from building to the current plans (if they are in fact reasonable, which is why the council has approved them).

 

Thanks Tufan, do you know any good planning lawyer? I will be meeting my town planner to hear their suggestion soon, I hope they have planning lawyer set up on their price, at current no idea...

 

I will fight for sure, not going to give up after 2 years of planning... lol

point 1, the latest ads posted mentioned 6townhouse and 2 storey units for all the units.

point 2. i) set back had been approved by council as 7m, average is a little less than 7m.

point 2 iii) the current house have plenty of tall trees on the fence, they were happy when we chopped down the tree, at current the shadow from the trees are covering their their side of the house... the planner had looked into the shadow problem and the fence stays the same as current height.

are you saying that the neighbour might win this case?

I am trying to get the sense of all these...

Thanks Scott

 

No idea - your TP and TP Lawyer will have more of an idea. Have you also considered getting council's TP who wrote the report which went up for approval in on the act (even for advice)? What were the contents of the report that the TP prepared to support your application to the councillors/building committee at council (if they have delegated authority)?

 

My next meeting will be with the TP, then they will represent me at VCAT and will be presenting the answer to all the questions with our neighbours in upcoming April.

Thank you everyone here that had given me inputs. I will sought out the planning lawyer to see how much this will help in easing my neighbour’s problem.

 

Yes, there are a few around. But it will be the planning lawyer that runs the case, not your town planner. It depends a lot on how important this is to you, and what the risk is. Your planner should be able to give you balanced advice that is in your interests. For an appeal I wouldn't go past lawyers Best Hooper.