[see s114-130 Planning & Environment Act]
by Ian Wood, President of SOS & Member of PIA (Planning Institute of Australia(
Occasionally when construction commences on a development, some aspect of the building does not comply with the planning permit (eg, floor levels or walls significantly higher than shown on the plans, window openings appearing where none were shown originally, etc)
What you do next depends on why these changes have occurred – whether the building contractor didn’t follow the building permit, whether the building surveyor didn’t follow the planning permit, or whether extra unauthorised details (such as extra height and more windows) were surreptitiously included on the final plans submitted for endorsement by council. If these unrequested and unauthorised changes are not detected by the council planner (and they ofton aren’t), they get endorsed and technically become part of the planning permit.
Rectification gets more difficult the further down this list you go. If you make a formal complaint, Council should be prepared to enforce the planning permit if the contractor or Building Surveyor are at fault. But if the planning permit itself is flawed because council failed to detect unauthorised changes to plans submitted for endorsement, they will be loath to act because they could be legally liable for damages if enforcement is upheld due to consequent rectification and construction delays.
Assuming you were an objector to this development, you would have received the Notice of Decision to issue a permit, which would have included any recommended changes (finalised as conditions). These may have included the changes that you are concerned about (in which case you should have immediately challenged that decision at VCAT – s82 P & E Act).
You would normally also ask Council for a copy of the Delegate Report to see the detailed assessment of the application and why extra conditions were or were not included on the draft permit.
When you are notified of permit conditions and don’t challenge them within 21 days (thus allowing a permit to issue), you can’t then appeal against those changes (unless you were not notified of council’s decision and thus didn’t realise that a permit was to be granted. In this case you need to appeal under s89 to cancel or amend the permit BUT THIS CAN BE RISKY – see separate section under FAQ on s89 appeals).
If the building is already underway and the changes that concern you are not included in the permit conditions, the first thing to do is obtain as much evidence as you can (eg, photographs, measurements, any relevant documentation) and then formally complain to your council. They will check and should act to enforce the permit.
However, particularly with minor breaches and especially if the council itself has made mistakes, they will be loath to act, as explained above. In this case, try to get the council planning unit to allow you access to a copy of the stamped endorsed plans together with the approved permit, to compare against the plans in the development application when it was assessed. Some councils allow you to check any planning file but many others only let you see “open” files (ie, applications that are still being assessed).
However, if you explain that you need the information for a possible VCAT appeal, they are more likely to let you see the endorsed plans. Your local councillor may help – councils have a policy of answering inquiries within a certain time (usually a week). However, some councils will refuse to allow access to all files except those that are still open, in which case you may need to lodge a Freedom of Information request with the Council. Unfortunately, this usually takes up to 45 days to be dealt with.
If you confirm from the endorsed plans that there is a clear difference between the plans and what is being built, you should demand that the council enforce the permit via a Planning Infringement Notice, or for more serious breaches, a formal Enforcement Order at VCAT.
If Council doesn’t act, you would need to lodge an enforcement appeal yourself instead (s114 P&E Act). You’ll need concrete evidence and you should seek professional help with such an appeal.
You also need to act fairly quickly – VCAT expects objectors to act as soon as they become aware of the problem.