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August 2, 2017

Case study – When planning applications become a battleground between neighbours

It is not unusual for planning applications to become contentious between neighbours.

In fact they can often become very heated and relationships can become strained and often breakdown between neighbours. We have seen it first hand on more than one occasion. While we accept this for what it is as part of the planning process it none the less saddens us when relationships between neighbours sour as a result of one developing their property at the perceived expense or detriment of another. The below tale of woe sets out an all too familiar occurrence and explains how perilous poor neighbourly relations can be in the planning approval process.  

In June 2015 we applied to Nillumbik Council to develop a second house on a large block of land in Eltham. Anyone who knows Nillumbik Council will be aware of their strident position on tree retention within sites as part of development. This was our main concern at the outset of the project as the site was semi-rural in character and surrounded in large native trees. However, our client had a different concern. He was convinced from the outset of the project that his neighbour would take them to VCAT even if Council supported the application. The reason he was convinced was because there was a long history of dispute between them and this planning application was going to present the next battle. The combative saga had been ongoing for a number of years and involved a wide ranging, yet typical neighbourly disputes such as fencing, noise complaints etc. The Council approved the planning application on the 9th October 2015 but as expected an appeal against this approval was lodged to VCAT by the neighbour. The development itself comfortably complied with the regulations as set out in the planning scheme and hence received Council support. Despite this any neighbour can still appeal the decision of Council without the need to provide any compelling evidence to support the grounds of their appeal. The case was heard by VCAT on the 28th April 2016 and the VCAT order upholding the Councils approval was issued on the 24th June 2016. Although a positive outcome, this unnecessary saga cost our client a full nine month delay in the commencement of his project. The development commenced construction in late 2016 and is scheduled to be complete in late 2017 as an owner builder project. Predictably our client wanted to know if there was any avenue to pursue costs associated with the delay and the appeal from his neighbour after the decision was issued by VCAT. The simple answer is no. It would require a very unique set of circumstances for VCAT to award costs against an objector appealing an approval decision by a local Council, despite the clear weakness in their case. The reason for this is because it would be seen as a deterrent to any future objector to a planning decision to appeal if the threat of costs being awarded against them looms. This could be perceived as being unjust towards objectors in the planning process and an advantage for developers.  

Planning permit approvals is an adversarial process and if a dispute emerges it is likely neither party will end up happy with the outcome. The test for professionals in the industry is to reach an outcome that is acceptable to parties. It is always in your interests to maintain amicable relationships and open communication with your neighbours if you intend to develop your site. A simple concept but not an easy one when the stakes are high and emotions are charged.