“He who cannot put his thoughts on ice should not enter into the heat of dispute.” – Friedrich Nietzsche
There are few things that get people more hot under the collar than a new development proposed next door. Whether it’s a single dwelling, a block of apartments or a commercial use, even Nietzsche would probably have had difficulties keeping his emotions in check if he felt that his lifestyle was about to be altered – for the worse – by a new development in his street.
Whether you’re the one carrying out the development or an existing resident who’s about to be impacted, it can be a turbulent time. Feelings are fraught, tempers are frayed and neighbourly relations can quickly sour when the spectre of development rears its much-maligned head within a stone’s throw of someone’s treasured home and castle.
It’s a common situation that’s happening almost every day on any street in any suburb. So you’d think that, by now, everyone would be reasonably clear about the rules and regulations that apply. But, judging by the inquiries we receive, the matters we act in and the cases decided by the courts, there are still many myths, misconceptions and misunderstandings about what the legal position actually is whenever new development is proposed.
Here are 5 of the most common areas of confusion that we encounter as property, local government and town planning lawyers:
- If a council approves development a neighbour has a right of appeal
This is a prevalent belief that is the cause of unnecessary anxiety on the part of someone planning to construct a new building and gives false hope to neighbours. As a general rule, only the person who lodged the development application can appeal from the decision of the council. There are a few very limited circumstances (for certain specified types of development) in respect of which a neighbour has a right of appeal if the council approves a development, even if it is next door.
- A neighbour is entitled to input into the design of an adjoining development
While neighbours can certainly lodge their objections with the council, their opinions and preferences will not necessarily prevail, even if negative impacts can be demonstrated. The council is required to take the objections into consideration but can decide not to implement the requested amendments.
- If a development does not comply with the council planning controls it will be refused
Not so. The planning system in New South Wales incorporates a level of flexibility which means that strict compliance with all development standards is not necessary. Even if there are a number of non-compliances with planning controls, while in some situations this may be indicative of an unsuitable development design the number of non-compliances is not, of itself, determinative. In assessing the proposal, it’s necessary for the council to take into consideration the nature and extent of each of the non-compliances and the impacts which flow from them.
- If a design change would reduce or remove an impact then the council must require it to be done
Sometimes, a relatively minor change to a design would have the effect of diminishing or removing completely an impact on an adjoining home. While it might make a lot of sense to do this, the council is not under a duty to require that change to be made.
- Once a development has been approved there is nothing that the neighbours can do
In very limited circumstances, legal proceedings can be commenced to have a development consent declared invalid. On its face, this appears to contradict the first point which states that there is no right of appeal for neighbours. However, this is not the same as a right of appeal. In order to succeed in proceedings of this nature, you must be able to establish that there was a legal flaw in the approval process.
Whenever change is proposed, it’s understandable that people can become concerned about what the possible impacts might be. But, as with any situation where there are conflicting interests, it’s essential to properly understand the facts and know your rights before you make any decisions.
Whether you’re a developer, a neighbour or a concerned local resident, no matter which side of the fence you’re sitting on, it’s always important to know where you stand.
This article does not constitute legal advice.
Susan Hill, Special Counsel with Hones Lawyers, is an Accredited Specialist in Local Government & Town Planning Law. She has been a solicitor for over 30 years, with extensive experience in Land and Environment Court matters.