Can Council (Victoria) alter planning permit at lock up stage ?

G'day Everyone,

Hobson's bay council planning officer came around (uninvited) to inspect a 2 storey unit (battle axe subdivision) under construction and issued a directive to install Louvre screens on two windows up to 1700mm as the windows are at 1200 height and therefore considered overlooking the neighbors private open space.

When pointed out that the construction was as per the approved permit (2011) and endorsed plans, the council conceded that they had stuffed up during the planning stage and would be happy to pay for the cost of screening.

However installing the screens would reduce the windows transmissible area to less than 10% of the room area and therefore violate BCA requirements with regard to natural lighting. When I highlighted the violation of BCA, I was told council will go to VCAT. Issues on which opinions are solicited:

• Can council change the plans at such an advanced stage of construction ?
• If yes, am I obliged to accept their substandard solution or go for a more delayed and expensive outcome at VCAT wherein the council pays for redesign and delays ? I intend to stay for a year for qualifying for CGT as PPOR and then on sell.
• Can a planning officer come on site during construction ? My (limited) understanding is that only a police officer (criminal matters), building surveyor or a worksafe inspector is authorized to visit a construction site for inspections.
  
• What view is VCAT likely to take ? Give prominence to privacy issues or disregard councils late reaction since the planning permit is binding once issued over planning scheme. The latter option would set an unhealthy precedence wherein council can revoke any permit and therefore renders planning permit useless.
  
• Any other suggestions on what I can / should do ?

Cheers
Skilled

 

Not aware of the ability for council to simply issue an amendment to the approved plans - would have thought it would be done by letter etc.

An officer of the council may enter the property at anytime AFAIK to undertake investigations etc without prior notice.

I can understand the point that the officer has issued a correction notice but it would be contestible as it is imposing a new condition (unless it is consistent with the conditions already applying to the CC).

 

Thanks Scott,
It is a new condition. How do you reckon is the tribunal going to interpret it, if I were to contest it ?

 

Sounds to me like your neighbour lodged a complaint. Council covering their backside now as it is there doing.

 

Spot On OC1.
Verbal complaint nothing written.

Neighbor had 3 weeks time frame to lodge a VCAT appeal after Notice of decision by council but chose not to do anything. What happened to ''speak now or forever hold your peace'' ?

Apologies about the whinging and whining. Have filed for a restraining order in magistrate's court against the neighbor (persistent NIMBY who has taken to damaging the property now).

 

Update

Council filed a hearing with VCAT for amending the permit being a material mistake on council's behalf.

This was followed up by the council with 3 planning inspections (1 just a day before VCAT hearing) and 2 public nuisance notices for floodlights which were not even switched on. In addition other threats were made to bring about more enforcement and infringement proceedings.

Final hearing was on 23 Nov. Just managed an occupancy certificate on 20 Nov being a private building surveyor.

The case was thrown out in half an hour by VCAT member for the reasons of:

• Building being complete
• Council not filing for hearing as soon as practicable.

The costs were awarded against the council.

In addition Mayor has ordered an investigation into the matter as the costs incurred by the council was over 35,000.

Lessons learned

• Use a private building surveyor.
• Try and get the plans endorsed by VCAT thereby restricting council's ability to interfere later in the development stage.
  
• Do not develop near an Ex / current councilor's property
• Try to transfer the planning risks and costs to the planner even though it may be a bit extra in the beginning.

 

Re: point 3

May require some formal complaint against the councillor (ICAC equivalent ) for using undue influence on council employees to achieve an unwarranted outcome.

 

So happy to hear your outcome.

 

@SerenityNow: Thanks for the warm wishes.

@ScottNoMates: I tried what you have suggested, 4 years back by complaining to Victorian Ombudsman. The complaint was rejected for want of evidence. Evidence is hard to come by when council staff is verbally instructed by the Councillors. In this, case the Councillor being a neighbor actually had a right to object.

Thankfully VCAT saw the relation between the proceedings and Councillor's interference and did make a deprecatory remark in the practice hearing.

Back to the original question that I had asked.

• Council (at least in Victoria) cannot change approved plans, only VCAT has the powers to do so. Just need to stand your ground.
• However they can make life very difficult for you by misusing their powers of entry.