Dividing fence dispute and retaining wall adjustment without agreement

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Masobaso

Member
7 December 2020
3
0
1
This has been a long running dispute about the true boundary and building of a new fence that has evolved into a retaining wall dispute. I'll try to spare the details about the dispute but in summary, the neighbour claimed with nothing but his own measurements that the dividing boundary between our small lots was actually about 15 cms more on our side - 15 cm doesn't sound a lot but it is when your side access passage in narrow enough anyway. He took down the existing fence - which we agreed needed replacing - but before we agreed on the replacement. In the end I had to go to QCAT, who told me that I had to pay for a full survey to prove where the boundary was (not him - I didn't want to move the fence line, he did). And he lied through his teeth in the hearing.

Years later for mine and my family's mental health I relented and agreed to a stupidly elaborate and high fence on "his" defined new boundary line, but this required specially made brackets so that the fence could be suspended over the existing retaining wall - his back yard is on the high side and the wall was (is) inside the true boundary between the properties. He now claims that it is a shared retaining wall (it was there before we bought the property but is painted and rendered the same as the rest of the our house - the old fence was running alongside it.

But he then, without consulting me and without my knowing, drilled reinforcing rods down through the wall (it's core filled brick and rendered) and raised its height with hardwood sleepers on top on MY side of the new fence palings and it looks terrible - the neighbour can't see it, though he claims that he needs it because he'll be filling in on his side (i.e. raising the height of his land - and presumably the pressure on the existing wall). I also was planning to repaint and fixe up the wall as it has some render cracks but I can't do that now due to the terrible additions. The builder is his mate and is rude and condescending (and left piles of treated timber sawdust on the property without clearing up after him).

I'm at a loss on what to do - the sleepers are going to be nigh on impossible to remove as he's over engineered it and any securing bolts are on the palings side and unreachable without removing them. The chemset bolts drilled down through the wall can probably be cut off with an angle-grinder but if he does fill in, then it'll overspill into my side access path. I'm going out of my mind but can't think of a resolution and after my previous farcical experience with QCAT I can't see any point going there. Is there anything I can do to maintain the integrity of my property and force him to back off and leave us alone?

Thanks...

Greg
 

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Docupedia

Well-Known Member
7 October 2020
378
54
794
A retaining wall is not a fence. The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 makes that clear at section 11. QCAT does not deal with retaining walls - only dividing fences.

Retaining walls need building approval unless they meet all of the following criteria:
- Less than 1 metre high
- Further than 1.5 metres from a building or another retaining wall
- Only supporting soil behind the wall, nothing above
- Not part of a pool fence
- Combined wall and fence height are less than 2 metres
- Not built over a service (sewer or stormwater)
- Meets structural requirements
- Not in an easement or covenant area
- Meets earlier development conditions
- Not in a waterfront setback area

If you suspect the building work is not compliant, you can report illegal building work and structures to your local council.
 

Masobaso

Member
7 December 2020
3
0
1
This has been a long running dispute about the true boundary and building of a new fence that has evolved into a retaining wall dispute. I'll try to spare the details about the dispute but in summary, the neighbour claimed with nothing but his own measurements that the dividing boundary between our small lots was actually about 15 cms more on our side - 15 cm doesn't sound a lot but it is when your side access passage in narrow enough anyway. He took down the existing fence - which we agreed needed replacing - but before we agreed on the replacement. In the end I had to go to QCAT, who told me that I had to pay for a full survey to prove where the boundary was (not him - I didn't want to move the fence line, he did). And he lied through his teeth in the hearing.

Years later for mine and my family's mental health I relented and agreed to a stupidly elaborate and high fence on "his" defined new boundary line, but this required specially made brackets so that the fence could be suspended over the existing retaining wall - his back yard is on the high side and the wall was (is) inside the true boundary between the properties. He now claims that it is a shared retaining wall (it was there before we bought the property but is painted and rendered the same as the rest of the our house - the old fence was running alongside it.

But he then, without consulting me and without my knowing, drilled reinforcing rods down through the wall (it's core filled brick and rendered) and raised its height with hardwood sleepers on top on MY side of the new fence palings and it looks terrible - the neighbour can't see it, though he claims that he needs it because he'll be filling in on his side (i.e. raising the height of his land - and presumably the pressure on the existing wall). I also was planning to repaint and fixe up the wall as it has some render cracks but I can't do that now due to the terrible additions. The builder is his mate and is rude and condescending (and left piles of treated timber sawdust on the property without clearing up after him).

I'm at a loss on what to do - the sleepers are going to be nigh on impossible to remove as he's over engineered it and any securing bolts are on the palings side and unreachable without removing them. The chemset bolts drilled down through the wall can probably be cut off with an angle-grinder but if he does fill in, then it'll overspill into my side access path. I'm going out of my mind but can't think of a resolution and after my previous farcical experience with QCAT I can't see any point going there. Is there anything I can do to maintain the integrity of my property and force him to back off and leave us alone?

Thanks...

Greg
Hi - thanks. I have seen that list of compliance. So, you believe that I can go to the council and report non-compliance without having to go into the who owns what and where is the boundary malarkey?

Thing is, it's NOT a new retaining wall, just changes to an existing but I can say for sure that;

- Less than 1 metre high: In parts it is now higher than 1 metre.
- Further than 1.5 metres from a building or another retaining wall: It is NOT more than 1.5 metres from the house as you can see in the picture - although it never has been so would prior approval or merely its existence imply that approval has been gained before?
- Only supporting soil behind the wall, nothing above: I think this is the case.
- Not part of a pool fence: No
- Combined wall and fence height are less than 2 metres: It's way more than 2 metres on my side and in parts, I think it is on his, which is part of the reason he wants to raise the ground level so that it won't be - he's a cheeky son of a b***h and he thinks that's OK.
- Not built over a service (sewer or stormwater): No
- Meets structural requirements: Not sure - I guess I'd need an engineer to validate that. The builder is a condescending cowboy, not an engineer.
- Not in an easement or covenant area: Don't think so.
- Meets earlier development conditions: Don't know.
- Not in a waterfront setback area: No

So perhaps if I just approach him and say that I believe the wall is now not compliant and that I will call the council he might relent - thing is, the neighbour has been intimidating me and my family since this dispute began and he's a massive aggressive prick. Maybe I should just go to the council like I did when he removed the previous fence without my permission - he has a dog and they threatened to impound the animal so he put up a temporary fence made of wooden pallets. This whole thing has been a bad joke since QCAT made the wrong call earlier on.
 

Docupedia

Well-Known Member
7 October 2020
378
54
794
You could go to Council directly. For a few dollars it might be a better investment to engage a private certified to have a look at it - they’ll know for sure what is wrong with it, and who to speak to in Council, and are more likely to be taken seriously and with more urgency. The problem you may have is I understand some Councils have stopped doing site visits during COVID. Not sure if that affects you or is still in place.
 

Masobaso

Member
7 December 2020
3
0
1
HI - thanks that might be a good idea to try. I think you missed out a crucial word - I need to get a Private Certified... who? Engineer, surveyor, builder? Could you please let me know. Thanks, Greg
 

Docupedia

Well-Known Member
7 October 2020
378
54
794
Sorry, autocorrect error. A private certifier. Council doesn’t sign off on building work and hasn’t done so for years. all sign offs are done by private certifiers who inspect it against the approvals and regulations.