A McKellar woman says the ACT Planning Authority has not carried out a decision of the Administrative Appeals Tribunal about a dual occupancy next door.
The woman, Heather Filmalter, has objected to plans for the conversion of an open carport to a dual-occupancy one-bedroom flat, the corner of which is 70cm from her boundary.
She says the authority lost her original objection and approved the plan. The authority acknowledged losing the objection, but the authority said it could not revoke the approval.
She appealed to the tribunal which set aside the approval of the plan. It said an amended plan could be approved provided the fibre-plank construction were replaced with brick matching the house and that a suitable privacy wall be constructed.
The authority said it would keep her informed of further developments.
That was in August last year.
On September 13 she got a letter dated September 9 saying a new plan had been lodged. It provided for brick-veneer construction and a wall with brick piers with in-fill panels of metal or timber cladding.
The letter said it was a plan “”which I consider complies with the requirements of the Administrative Appeals Tribunal’s direction”.
Mrs Filmalter thought not.
Whatever the conclusion on that, Mrs Filmalter’s gripe is that the authority approved the plans on September 10, the day after it sent her the letter.
She had no chance to object; no chance to see the new plans; no chance to assess herself whether they complied with the tribunal’s direction.
“”They sent out a letter one day and approved the plans the next,” she said.
The Chief Territory Planner, George Tomlins, said he had a duty to implement the tribunal’s decision. The appeal and objection process had to stop somewhere otherwise there would be a never-ending circuit.
His legal advice was the the authority should implement the decision of the tribunal in a professional way without further recourse to the parties or other factors. In the case the tribunal had not stipulated a brick wall, and what was proposed fitted the decision.
Mrs Filmalter said she had spent about $4000 in legal costs at the tribunal, because she was faced with a lawyer from both the authority and the neighbour.
Her view is the new plan does not comply because the spirit of the decision was to protect her amenity and privacy and reduce noise. The ground level of the neighbour’s house is 1.5 metres higher than hers. She also found that the new plans put the dual occupancy’s closest wall 50cm from her boundary “”cribbing another 20cm”.
Only a solid brick wall would do the job, she said. Timber would have to be maintained and would let noise in.
Mrs Filmalter said over the past few months she had been corresponding with the authority about the new plan and yesterday she had found excavation work had begun on the site.
Mr Tomlins said her only recourse on whether the authority was carrying out the tribunal’s decision would be to court.
Earlier this week another building dispute revealed that the tribunal and its successor the Land and Planning Appeals Board cannot enforce their own decisions. The ACT Attorney-General, Terry Connolly, said only a court order could enforce the decision, but enforcement issues were rare because tribunal decisions were usually respected.