Council Headache: Help wanted to interpret their final letter

yjun355 on 01/09/2014 - 21:01
Last edited 01/09/2014 - 21:32

Hi guys,

Hopefully someone can give good advice. Ozbargainers seem to have been relatively helpful for these kind of issues lately.

  1. My Story Summary

a. He run yoga classes approved by council 8 years ago at home.
b. Years recently build temporary structure (like pargo)
c. New Neighbour complained about structure.
d. 3 months, council hassling: first thing they said it is 1 mm bigger that minimum size without approval, needs to be certain distance from boundary wall, fire inspection.
– Got fire safety approval,

e. They then said no drainage (separate correspondence).
They say they can never provide formal approval.
f. either way, back and forth. All correspondence from council very extremely hard to interpret to a common person. Its ambiguous and just quote all pieces of law.
Never clearly states, what are exact objection and what you need to do to resolve.

  1. Letter from Council

I refer to concerns raised with Council in regards to unauthorised building works being carried out as well as unauthorised use of the subject premises. This matter was investigated by Council’s Health and Building Compliance Officer and it was determined that appropriate approvals and consent of Council was required to be lodged with Council prior to commencement of any work.

You are advised that it is an offence under the provision of the Environmental Planning and Assessment Act 1979, to carry out development works without Council approval. It is contrary to the provision and intent Environmental planning and Assessment Act 1979, which may render you liable to a penalty of up to $1.1m.

In this instance, Council has issued you with a warning for the offence.

The carrying out of the building work without the required prior development consent and construction certificate undermine the integrity of the planning system and importance of compliance with state building regulations before work is carried out, which may result in buildings and other structures failing to meet the required standards.

In relation to the use of the subject premises for the purpose of yoga classes, please be advised that under State Environmental Planning Policy (Exempt & Complying Codes) 2008; subdivision 22, to conduct a home business falls under the exempt development which is permitted without consent providing it meets all the requirements under specified criteria.

Please be advised Council will not be taking any further action at this time.

  1. Need Help Decipher Council Letter

Really need help what people think:
a. To me, council is saying, we investigated, we are not giving approval, we give you warning, you could get 1.1 million dollar fine, we will not pursue this any further i.e. so, if you continue you would get the fine.

b. My dad reads it, we investigate, we give you warning, you could get 1.1 million fine, we we are not pursuing further i.e. its all ok. We are letting you carry out.

Its so hard to get clear answers especially in writing from council people. They relatively helpful but its just unclear what they are saying.

Also, anyone know about free public lawyer to consult especially in council matters. I live near maroubra/kensington.

Home & Garden

Comments

  • cypher67 on 01/09/2014 - 22:01
    +2

    Call your council and ask would be the easiest solution rather then getting the peanut gallery to weigh in.

    But I will anyway!

    I read this as: Your in violation, if you don't stop you could get said fine, we wont be pursuing with any legal proceedings provided you stop doing what we said you did + Legal BS.

    • iseenya on 02/09/2014 - 09:21

      The Council letter said nothing about stop or get a fine. The Environmental breach was a one-off, done deed and they have issued a 'don't do it again' warning, so that case is now closed. OP should check with a lawyer to be certain, but I agree with his dad's interpretation at item (b).

  • yjun355 on 01/09/2014 - 22:13

    Fair point. Do you know there is any way to get advice? Without paying $1000. Isn't there some free advice and public level?

  • MITM on 01/09/2014 - 22:39
    +1

    Your local Citizens Advice Bureau can help - but cypher says it all.
    A) Pull down the pergola and put up a tent - continue on with your approved yoga classes.
    B) Get a draftsman to draw up the pergola and submit it to council for approval (if it is built correctly in the first place - draftsman will know).
    C) Rebuild it properly - starting with the draftsman
    D) Build a low cost steel carport.

    Your original yoga approval stays in place.

    I'd say you've had a good run until the new neighbour turned up. He is probably looking to shut down your operation whatever you do.
    Have you considered moving to a park or getting a place ?

    I moved my business out of home BEFORE the neighbours complained.

    • yjun355 on 01/09/2014 - 23:18

      Fair enough. Easy said that done. This is really low scale operation. Like 3-5 people in a class. Its done more as hobbie rather than full scale business.

      I was consider the approval side. Perhaps get a retrospective approval.Hopefully they have such a thing.

  • cst on 01/09/2014 - 22:46

    Try this for free legal advice…http://www.klc.unsw.edu.au/free-legal-advice There is a list of eligible suburbs of which Maroubra is one.

    I wish you well.

    • yjun355 on 01/09/2014 - 23:17
      +1

      Thanks. That will be helpful. Thats exactly I have looking for.

  • Davo1111 on 02/09/2014 - 01:01
    +2

    1 mm bigger that minimum size without approval,

    So just plane one edge 1mm down?

    • iseenya on 02/09/2014 - 09:14

      That size claim has gotta be BS, given the limits of accuracy of measuring a structure of that size. Also, 1mm would be less than the temperature/size variance - any structure shrinks on a cool day and expands on a hot one, particularly if there's steel framing.

      • yjun355 on 02/09/2014 - 09:31

        Well, it is. I should post the letter. Basically, all the communication from council is ambiguous. All I want is simple list of:

        These are our objections:

        If you fix below we ok with structure:

        Instead they literally right 1000 of words quoting sections of law. Its just so hard to interpret.
        They helpful in a way, they drop the minimum size issue (obviously unofficially).
        I am getting my dad to publish the book on amazon with all factual account.

        Anyways, they moved from it and last thing they said on phone is if you fix your drainage.

        • [Deactivated] on 02/09/2014 - 12:44

          Is it seriously, definitely 1mm?? lol that's insane.

  • Mimbula on 02/09/2014 - 09:28

    With regards to the use of your land for a home occupation, you must meet the criteria specified in the Planning Scheme to continue this use. Please contact the Statutory Planning Department of your Council to obtain a copy of this criteria.

    In terms of the structure built without planning or building approval you should just book an appointment to speak to the investigating officer at the Council Office. Ask them if you need to bring any documents with you, e.g. plans. The potential to be fined should be taken seriously and you should be seen to be taking responsibility for your actions, and trying to rectify the situation. The figure they've stated is probably a maximum penalty amount which they've stated to make you aware of the seriousness of your situation.

    Additionally, you may like to contact your neighbour and try to ask them about their concerns, with the aim of making peace with them, opening up communication and getting them on your side. Especially because car parking from yoga classes may affect their ability to have visitors over when there is limited car parking. But look at the planning scheme for your home occupation as car parking requirements must be met too. Also, objections received from a home occupation can be cause to have it shut down - all the more reason to be friends with your neighbours!

    I agree that Council wording in letters can be vague and confusing for a lay person, so it is always better to meet with the Officers in person so that they can determine your level of understanding and try to getter communicate and clarify what they are saying.

    Good luck!

    • yjun355 on 02/09/2014 - 11:12
      +2

      Thanks. Pretty much did what you said.

      My dad had chat with council. They comments was consistant with you and others said.
      Basically, they said the case is close from their perspective. Also, said if you get certification from builder, then they wont question about structure for 7 years.

      Whole ordeal took 3 months. Seems finally closed. Person at council was actually helpful and genuine try to resolve. As it was reasonable.
      Probably just tied in council inefficiencies and bureaucracy to get it over the line. Wish the communication was lot clearer and simpler and less ambiguous.

      Told me dad to write a small book with factual account of sequence of event. More for personal documentation so that if case issue comes up in future. So, don't have to think about it then.

    • Natt on 02/09/2014 - 13:38

      Mimbula's advice is great :)

  • Natt on 02/09/2014 - 13:36

    I probably have a slightly different interpretation. And its made without checking the legislation they quote, which might change the answers.

    And it's just MY OPINION. What I MIGHT do in your spot. There probably grammar mistakes as well since this is an Ipad but my eyes hurt now :p

    Someone "raised concerns" with the Council that you have:
    1) built a building without council approval/consent
    2) are using the premises for something you don't have council approval for

    This was investigated by a Compliance Officer who decided:
    1) the person the letter is addressed to built without council approval/consent. They have been issued with a warning instead of them trying for a conviction
    2) that your yoga class might be exempt from needing approval - so they are not going to pursue "further action" or try and figure that out

    The bits about legislation is to support:
    - they believe you would have been fined for point 1 if they decided to try and prosecute (and it was successful)
    - it's important to get the approval/consent of the council because that's how they make sure building meet the right "standards"

    The council cannot give you "permission" to do something illegal. So I don't think it's saying "carry on". That's kind of like saying we believe you committed a speeding offence. You get a warning. You are still speeding but that's OK. You can keep speeding.

    You would need an "exemption" for that - not a letter.

    Also when they say they can "never approve" it means there is no procedure to approval a building 7 years after it's been built without the right approval:
    - there are objection parts to the process that are impossible to do now (different neighbours etc)
    - the standards might be different, so what complied then may not comply now
    - the approval process might have been different
    - they would be encouraging "speeding"

    It's also not saying they won't take any action. I think it's saying:
    1) in the past the Council reckons you built something without approval/consent which you are getting a warning for
    2) they are not going to look at the "unapproved use" providing you meet the "exempt" requirements

    From there it gets fuzzy:
    - Because if you keep doing classes you will need to check it really is exempt
    - an illegal structure can mean problems reselling/ insuring etc
    - if you don't remove the structure and decide to alter you are probably committing another new offence

    Getting the approval will mean:
    - the building meets the safety standards they are worried about
    - providing you do things right and lodge all the approvals if you decide on alterations etc then it's approved work on an approved structure. With the warning rather than prosecution it's a non-issue, although they still think you committed an offence. I would be asking the council their opinion on that.
    - you would need to check with the insurer about whether it causes any issues, but it's probably going to be a lot easier

    Note the letter talks about failure to get approvals/permits. It does not say the building would/does not comply with the correct building "standards"

    Bottom line
    - ensure your yoga classes are actually exempt, if they are decide whether you want to write to the council confirming that
    - if they are not exempt get the approvals you need. You will continue to offend if they need approval as you are doing it on an ongoing basis.
    - see if the building can get certification, and if it can then decide if you want to notify the council. If it can't then figure out what you need to do and see if the council is willing to issue approvals for that process
    - consider pulling it down if it can't meet the certification. Put in an exempt structure, or go through a rebuild properly - remembering that has an objection part which your neighbour might lodge

    And other bottom line is:
    - even if you fix everything you might have a concerned neighbour. Note they did not identify who made the complaint in the letter. Perhaps there are issues to smooth over there if possible.
    - if you got "permission" for the classes from the council IN WRITING then consider giving it to them as it demonstrates they may have not looked at all the evidence properly

    And whatever you do make:
    - put and get things IN WRITING!!! emails with the right persons included in the send list are your friend
    - think about consequence before taking action and decide if you need specialist advice

    • yjun355 on 02/09/2014 - 21:15

      Thanks for your input.
      In regards to putting in writing. My dad has sent few emails. He said when you ask specific questions like
      "Is it ok to start classes now", they don't reply :). I suppose they are very careful in terms of what they say. On phone however, they are are more open and chat a bit freely.

      Having said that, he has all communication. I asked him to document it into a .pdf and we can publish into a book on kindle.

      Either way, I made a call today, he actually recorded a video (he was on speaker phone). It was actually positive. The compliance officer explained sort of what you are saying. Basically, just like speeding fine but we are letting you go with a warning. In they are any future complaint then they not going to do anything about. Personal would have to go to civil court. He suggested to chat to neighbour and offer to build higher fence.

      So, we glad all ordeal finally over. Surprisingly it was resolved in our favour. Just 3 months of hassle.

      Thanks for your input.

  • Shadow54 on 02/09/2014 - 14:11

    I would - in the first instance - go and have a chat with the Planning Department at the Council. There may be a human there who can interpret the bulltish for you.
    Unless you happen to live in my Council area, in which case you'd better hire a team of lawyers……

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