(given orally at the hearing and subsequently revised)

3 This is an application pursuant to section 87 of the Planning and Environment Act 1987 to amend condition 1(g) of planning permit No 2001/6922, which was issued on 19 August 2003 at the direction of the Tribunal. The permit allowed the construction of two double storey dwellings and condition 1(g) provides that the endorsed plans must show:

(g) Screening of rear upper level windows to 1.7 metres above floor level to prevent overlooking of sensitive areas of adjacent properties, whilst allowing distant views.

4 Construction of the dwellings has been completed and screens as shown on the plans endorsed by the council in accordance with condition 1(g) have been constructed. The applicant is concerned because she claims that the screens as constructed do not achieve their purpose in that they allow overlooking of her backyard. The applicant's property adjoins the rear of the subject land. The applicant was a respondent/objector at the previous Tribunal hearing and consented to the inclusion of condition 1(g) to address her concerns about overlooking.[1]

5 The applicant is aggrieved because the plans showing the screens were not submitted to her for inspection before they were endorsed by the responsible authority. She and Mr Dalal have endeavoured to negotiate with the respondents to improve the degree of protection offered by the screens but to no avail.

6 An application by a third party to cancel or amend a permit is a serious matter and not an action that is undertaken lightly where there is no consent by the permit holder. There are a number of statutory hurdles which must be overcome to establish standing to make such an application and which govern the Tribunal's power to cancel or amend a permit. Section 88 of the Act sets out the limits on the power to cancel or amend a permit and provides as follows:

88. What are the limits on the power to cancel or amend a permit?

The power to cancel or amend a permit under this Division may be exercised -

(a) if the permit relates to the construction of buildings or the carrying out of other works, at any time before those operations have been completed; or

(b) if the permit relates to any other development of land, at any time before that development is substantially carried out; or

(c) at any time, if the permit relates to the use of land.

7 There is no dispute that construction of the dwelling on the subject land pursuant to permit 2001/6922 has been carried out and is now complete. This therefore precludes the Tribunal from being able to exercise its discretion to amend the permit even if all the other provisions of the Act were satisfactorily addressed. In my view this application is misconceived and should be struck out.

8 In reality, it seems that the applicant's concerns relate more to enforcement. There is nothing wrong with the condition as it is worded. Rather, the screens which were shown on the plans and have been approved by the council through its endorsement of the plans, do not, in the applicant's view, meet the objective set out in the condition namely to prevent overlooking of sensitive areas of adjacent properties. The battens on the screens are not angled to prevent downward views, as impliedly suggested by Senior Member Sharkey in his decision (see para 27). In addition, there is a wide gap between the screen and the wall which enables views of the applicant's back yard.

9 However, the screens have been built as shown on the endorsed plans and an enforcement order under section 114 of the Planning and Environment Act 1987 may not be the answer. What the applicant is really challenging is the council's decision to endorse the plans showing these screens. To do this, a declaration under section 149B may be required.

10 There was no obligation on the part of the council to submit the plans to the applicant for comment prior to endorsement. The responsible authority has the responsibility for endorsing plans and satisfying itself that the plans meet any conditions that have been included in the permit. I have not considered the merits of this case and make no comment about whether or not the plans can reasonably be considered to meet the requirements of condition 1(g). Striking out this application does not preclude the applicant from making any applications under other provisions of the Act. However, enforcement order application or applications for declarations carry with them a greater likelihood of costs being awarded if the application is unsuccessful than in ordinary merits based applications for review. Such proceedings can be costly for all parties and need to be well founded if such proceedings are to be commenced. It therefore seems unfortunate in all the circumstances that a relatively minor matter such as this cannot be resolved by negotiation.

[1] Arnheim v Bayside City Council P890/2003, see paras [20]-[21] and [26]-[27]. In fact Mr Dalal appeared at the previous Tribunal hearing. Mr Dalal is the partner of the applicant, Tara Stewart. It is unclear whether he is representing her as her legal representative or as her partner.