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Permits objected by neighbours

Discussion in 'Development' started by ibizzle, 12th Aug, 2015.

  1. ibizzle

    ibizzle Member

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    Hi all,

    I've got a large block that is in the process of permits for a couple of units.

    If the neighbors object during the advertising stage - is it possible for that property to never get the permits? Can the council overrule the objection given it ticks all the planning guidelines.

    This might sound like a silly question but assuming it's in a pro-development council.

    Regards,
     
  2. AndrewTDP

    AndrewTDP Urban Planning Consultant Business Member

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    Guessing not NSW but yes. I've had developments approved with 100 + objections.
     
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  3. Depreciator

    Depreciator Moderator Staff Member

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    If one objection could stop a complying development from happening, nothing would ever get built.
     
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  4. ibizzle

    ibizzle Member

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    Thanks. This is in Melbourne and a small scale residential unit development on a main road. Plenty of activity happening around the area but it makes me think what is the real purpose of advertising if objections end up getting overruled by council.

    Cheers
     
  5. Leo2413

    Leo2413 Well-Known Member Premium Member

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    If neighbours object, council may make some changes to your plans to address the concerns or they may dismiss some or all of the neighbours 'concerns'. I don't think its likely the project will die altogether.

    Go on the council website and look at DAs and you will see how council responds to many of the neighbours objections. A lot of the time they do dismiss a large portion of them.
     
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  6. Aaron Sice

    Aaron Sice Well-Known Member

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    "No" is the default answer for the masses.
     
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  7. Scott No Mates

    Scott No Mates Well-Known Member

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    Planners usually address the objections by asking for amendments or further information. If there are unresolved objections or nonconformances then the planners report will be referred to the council for approval.
     
  8. Skilled_Migrant

    Skilled_Migrant Well-Known Member

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    NIMBYs are usually ignored for their whines:
    • My Views
    • My privacy
    • My sunlight
    • My quality of life
    • Loss of equity in my property
    • My neighborhood density
    • Me me me me....
    Councils are required to consider the neighbor's views under the Enivornment and Planning Act, but the reason for rejection (in Victoria) of an application would usually be a violation of Victorian Rescode and neighborhood requirements.

    Architects are usually smart enough to tick all the boxes of rescode and rarely would a problem highlighted by a neighbor insurmountable by minor design amendments.

    The bigger (than NIMBY) concern for council is being challenged by the developer in VCAT for a minimal fees and council's decision thrown out on flimsy ground resulting in loss of face, time and money. Developer has more to lose than the neighbor and is usually (exceptions exist) the developer who takes the council to court/tribunal.

    http://www.austlii.edu.au/ is a good resource to understand that councils are becoming less relevant in the development process. I have also found a lot of technical and legal solutions in the AUSTLII databases to the problems that I encounter in development and pointing out the legal precedence of an issue is almost always binding on the council.

    Good luck with your development and do keep us updated on the progress.
     
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  9. FireDragon

    FireDragon Well-Known Member

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    Views and privacy are important. During my DA submission, Council arranged someone to check the views of some of the neighbouring units. In order to get my DA approval, I removed one of the 3 bedroom units from the plan because it blocked the view of one of the neighbouring units.
     
  10. Chilliblue

    Chilliblue Well-Known Member

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    The objections need to be in line with the proposed building not complying with councils regulations.

    Any neighbour can lodge an objection but it does not mean it will be listened to.
     
  11. Skilled_Migrant

    Skilled_Migrant Well-Known Member

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    Hi FireDragon,

    I agree about privacy but it is the inflated interpretation of privacy by NIMBYs that I have concerns with. As per Victorian rescode the privacy can be effected if :
    • The new dwelling has views into an existing window. Easily fixed by fence, obscured windows, windows located above 1.7 m, louvre screens, wide external sills etc.
    • Views into Secluded Private Open Space (SPOS). Before NIMBYs can claim invasion of privacy they need to prove that there are indeed views (within 9m of new window) of a space which satisfies each criteria and accompanying test of:
      • Open space
      • Seclusion
      • Private space
    Councils occasionally interpret views into a backyard as SPOS which is incorrect and both the council and NIMBYs can be corrected / challenged. While privacy is often brandished as a standard objection, in implementation it has a very narrow interpretation with regard to developments.

    Happy to be proved wrong, but I doubt that there are (any) state level regulation, which entitles inhabitants to views. If that were the case, CBD high rises would never eventuate. There are minor provisions of access to sunlight and ventilation and limiting overshadowing in the planning and building regulations.

    I do concede some neighborhoods character might impose view restrictions but are likely to be rare.

    I would appreciate if you can provide some more details on the suburb, and conditions/regulations under which council imposed such an extreme measure as removal of a 3 bedroom unit. It would also be interesting to know why couldn't the objective be met by design alteration.
     
  12. AndrewTDP

    AndrewTDP Urban Planning Consultant Business Member

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    Tenacity Consulting v Warringah Council established the 4 planning principles for view sharing in NSW.

    Essentially.
    1. What are the views of.
    2. Where are the views to.
    3. Does the proposal comply with development standards
    4. What are the impacts on the views.

    Not much help for those outside NSW though.
     
  13. FireDragon

    FireDragon Well-Known Member

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    Hi Skilled MIgrant, the development is in Sydney but I don't think it's an extreme measure as the removal of the 3 bedroom unit is around 3% of the overall floor space. Below is the response from Council regarding the view impact. I've removed the planner's assessment comments due to privacy issue.

    View Loss Assessment:

    To assess whether the extent of view loss which would result from the proposal is reasonable, an analysis has been undertaken with reference to the Land and Environment Court Planning Principle established in the matter of Tenacity Consulting v Warringah (2004) NSWLEC 140:

    1. Quality of Views:
    The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.


    2. Reasonable Expectation of View Retention:
    The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.


    3. Extent of Impact:
    The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.


    4. Reasonableness of Proposed Development:
    The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbors. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.
     
    Last edited: 16th Aug, 2015
  14. Skilled_Migrant

    Skilled_Migrant Well-Known Member

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    Thanks Andrew and Fire Dragon,

    Just added Tenacity Consulting v Warringah Council to my reading list.

    However on a cursory read it appears that the views assumed significance because of Warringah Local Environmental Plan under design future character (DFC) as defined in local laws.

    So, the implementation of view impact is relevant only if the local by-laws (of neighborhood characte) require such a consideration, rather than a state level requirement. Lesser neighborhoods can safely omit view impact IMHO.

    Am I missing something ?
     
  15. FireDragon

    FireDragon Well-Known Member

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  16. AndrewTDP

    AndrewTDP Urban Planning Consultant Business Member

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    The case set out Planning Principles. Planning principles are not legally binding, and do not over ride any specific council controls. However, in this instance, most councils now use these principles for establishing view sharing/view loss for a new development where this may be an issue.

    The key is often the quality of a view and where the view loss is from, and whether the development is compliant. For example, if a property gains views from the side boundary, over a vacant lot, towards a lake, and someone proposes a 2 storey house under the 8.5m height restriction and under a 0.5FSR on the vacant land (I'm using a generic example here for ease), then the objector cannot reasonably expect for these views to be maintained. Therefore Principles 2 and 4 are easily met (i.e. it is not reasonable to maintain the view, and the proposal is compliant with the controls). Therefore view loss cannot be used as a valid ground of objection.

    However, if the land has a 10m height restriction, and the view loss is from the rear of the house, of Pittwater, and the proposed development is 12m in height, then there is a reasonable chance of refusal based on view loss - or at least amending the plan so as to ensure compliance with the controls.

    The significance of the view is also very important, as set out in Principle 1. A view of Sydney Harbour has more signifcance of a view of a local playground. So much more weight is placed on protecting the view of the harbour than a minor local view. This is why view loss isn't generally an issue in most developments - potential impacts on privacy, overshadowing and loss of amenity are far more prevalent.

    I've probably worked on around 30+ jobs where view loss have been central to the approval of a development. Only one has been unsuccessful and that was because the applicant did not wish to redesign (against my advice). Over half of them I have demonstrated that the proposal is reasonable, and that ongoing access to views cannot be given where development can legally occur within the view corridor. The others have necessitated a minor redesign (generally roof profile or slightly more stepping), with only one resulting in the loss of a dwelling.

    Hope this makes some sense.
     
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  17. PGS

    PGS New Member

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    Hello Guys
    Hope you can help me.
    Just picked up on your thread because I am doing a knock down and rebuild in Pittwater and the neighbour across the road and 2 houses further down has just come and seen me about his view from his upstairs balcony and 2 bedrooms which will be mostly lost. His view is the diagonal gap between mine and my neighbour's property and has interfaced land and water views. His current view is not expansive (say 15-20% of 180 degree and about 1.5 Km) but with a planned Cathedral roof line over the back living area and one of our rooms sitting on the side boundary with its roof feeding back into the middle of the main roof area his view will be considerable reduced if not lost altogether. The building foot print is larger than the existing one and extends further down the property and out to the side boundaries but is within all building boundaries and is far less than the building height restrictions. Both the old house & new are single story, we are maximising the boundaries and we have uninterrupted views from all parts of the back of the house. I am not sure how this may affect view sharing requirements?
    So my questions are:-
    What is the likely outcome if he submits an objection.
    What are the chances the council will reject the DA.
    Will this mean I will have to change that part of the cathedral roof line to something lower/different/flat to allow access of the view. (this cathedral roof is separate and joins back into the main roof but at a lower point and is the only roof area which blocks the guys view)
    I really don't want to do this as I want to have the cathedral ceiling throughout all living areas.
    I would very much appreciate any comments
    regards
     
  18. Anthony416

    Anthony416 Active Member

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    Andrew has outlined many great points in relation to this matter. As for PGS's question I would suggest that you should continue some dialogue with the potential objector and point out that you have already partially considered his position (and possibly others) by being well under the height restrictions. This may work in your favour a bit if you have to go to the L& E Court at some stage.

    I would suggest you go with what you want to do, submit the DA and if necessary make some minor concession afterwards or if it drags on go to the Court yourself. This is the position that many developers seem to take.
     
    Last edited: 20th Jan, 2016
  19. PGS

    PGS New Member

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    Thanks Anthony416
    I will press forward as you say
     
  20. Alex Ng

    Alex Ng New Member

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    Hi everyone,

    Hope anyone could help with my concern. We have recently bought a unit as a part of 2 block only, we're the second one.
    When we were dealing with the real estate agent , he told us about the neighbor and advised that they have applied for the extension ( put another storey up ) and have been rejected a few times. Now, few month later ( as of now ) they have applied it again and from the conversation that I recently had with them, look like they got it granted.
    Just wanted to know if that happened to anyone or heard of similar story ? Got approved after being rejected few times ?

    Many thanks for any answers

    Cheers

    Alex