The ACT’s new planning appeals body has no power to enforce its decisions.
If they were ignored people would have to go to court to get enforcement.
This was confirmed by the ACT Attorney-General in response to a Kaleen woman who won part of an appeal against her neighbour over an extension that she said invaded her privacy because a balcony overlooked her garden and people could see right into the house.
The woman, Claire Lintern, said the decision had not been complied with. She said yesterday that she is powerless to do anything because the threat of court costs closed that avenue.
Ms Lintern’s appeal was pre-Territory Plan and went to the Administrative Appeals Tribunal.
Mr Connolly wrote to her: “”Your first concern is that the Administrative Appeals Tribunal is unable to enforce its decisions. This is correct. Tribunals are not generally given powers of enforcement. . . . The [new Land and Planning Appeals] Board is in the same position as the AAT as regards the enforcement of its decisions.”
He said when enforcement was needed “”recourse must be had to a court”.
Ms Lintern has spent $2000 on legal costs already. She had to get rid of her lawyer a short way into the Administrative Appeals Tribunal because the lawyer for the Department of Environment, Land and Planning was tying the thing up for hours and her costs were going up.
She finished the case herself, and the tribunal decided that as a condition of approval “”the eastern end of the timber deck be enclosed by an opaque screen of appropriate construction approved by the ACT Planning Authority”.
Now she has to go to court to enforce the decision.
“”I would happily do that without a lawyer, but I was warned that if I lost I could be up for $30,000 for the department’s costs,” she said.
It was not worth it.
She said the had put up what looked like a shower screen, which Ms Lintern says is ugly and inappropriate.
“”Opaque means impenetrable,” she said.
She had been denied a remedy because of the system, despite the merit of her case.
The neighbour said, however, that he and his wife had first submitted a compromise which had the side wall of the send storey extended across the width of the balcony. Ms Lintern through her solicitor had agreed to it, but when Ms Lintern realised the wall did not go to the ground, she had gone back on the agreement, so the whole original project had been put before the AAT.
In response to the AAT decision the neighbour, who declined to be named, said he had submitted a plan with “”poly-carbonate in an aluminium frame” at that end of the balcony and the authorities had approved it. So he had built it to plan, except for a gap at the bottom to allow the wind through.
A second inspection had required that gap to be filled and he was getting the material to do that.
“”After that the matter should be closed,” he said.
The Save Our City Coalition says the case highlights a problem with the quality of the ACT’s planning administration. Jacqui Rees, president of the Canberra Conservation Council, which chairs the coalition, said the costs, time and effort made planning appeals either prohibitive or not worth it. The problem was with the appalling lack of quality in the decision-making in the first place. It was not giving enough weight to the amenity of existing residents in the slavish pursuit of the Government’s 50-50 in-fill-greenfields policy.
The coalition of 19 residential groups are looking at pooling resources to fund some test cases.
Mr Connolly pointed out that enforcement of tribunal decisions was rarely an issue because parties usually respected them.
Ms Lintern said the department’s costs in the AAT were about $18,000.