City Planning Works Objecting to a DA

Note: The responses below are for general guidance only. They should not be regarded as substitutes for appropriate professional planning or legal advice.

I have been notified about an adjoining DA - what should I do?
If you receive notification of a development application on a property adjoining your own and you have some concerns, you should outline these concerns in a letter of objection to the local council. Provided the objections you raise are reasonable and relevant to the proposed works, council officers are obliged to address your concerns within their report on the DA. Be aware that your objection will be on the public record and available to your neighbours. As a neighbour, you do not have right to veto a council decision regarding a DA.

Note: City Planning Works does not offer its services for the preparation of objection letters.

What information can I get from council about a DA?
Under the Government Information (Public Access) Act, members of the public may ask to see a complete file on a DA. Copies may be requested (subject to a charge for copying). Most material on the file is on the public record but this does not include internal floor plans of residential projects. All objections lodged are part of the public record and may be viewed by both the applicant and neighbours. Some councils require a request form to be filled out by anyone wishing to see a file, but no charge may be made for viewing the file.

Can a development be approved without the neighbours being notified?
Yes, under certain circumstances. Under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, development proposals for new dwellings or additions may be categorised as complying development or even exempt development. If complying development, you will receive notification only after the application has been certified and immediately before construction, as complying development does not require council approval. All other development applications are notified. You should therefore receive notice of any other type of development if the site directly adjoins your property or if your property is affected by a proposal.

Lack of notification may be sufficient reason to invalidate an approval. However, notification is deemed to have been made if council posted the notice, even if it was subsequently lost. To find out whether there is any basis for claiming notice was not given, go to the council and ask to inspect the file. Usually information about who has been notified and the notice itself will be found on the file. To protect against this problem of failure to notify, councils often place notices on the site itself, alerting the local community to a proposed development. If, after checking the council file, you believe you were not appropriately notified, consult a specialist lawyer.

Can I challenge a development approval?
Theoretically, yes, but in practical terms, no. For most developments, approval is the end of the story. There is no general right of appeal for objectors, except in respect of a special class of high impact development known as “designated development”, such as a marina, mine, quarry or piggery. Otherwise an appeal to the LEC is possible only if an error has been made in the processing of a DA, a fact that can be very difficult to establish. If you wish to challenge an appeal, you need to consult a specialist lawyer. This is a very difficult and expensive form of litigation.

What can I do if the building under construction next door looks different from plans I was shown?
If the building next door appears significantly different from the plans you saw during the DA notification period, first contact the Principal Certifying Authority (PCA). The contact details of the PCA should be located in a prominent position on the front fence of the new development.

A Construction Certificate (CC) authorises only work which is ‘not inconsistent’ with what was approved in the DA stage. It is important to understand that ‘not inconsistent’ does not mean ‘the same as.’ A reasonable level of change is permitted when the approved building design is elaborated in the Construction Certificate drawings. If the PCA is unable to give you a proper answer as to why the development appears different from the plans, consult the council or a surveyor, architect, planner or engineer to find out if the development is ‘consistent’ with the approved plans. If the on-going construction significantly differs from the DA in significant and substantial ways, and if these variations will adversely affect your property, you should contact a specialist lawyer.