VIC Neighbour destroyed my sealed driveway, won't repair

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Trevor Mills

Active Member
6 June 2019
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0
31
My neighbour's property is running adjacent to my long driveway. He recently did a site cut (he cut 3m down). Because he did not get his property surveyed to establish the boundary, he cut into my driveway about 1m ine and 1m deep.

I told him I wanted the full width of my driveway, so his only two options were to build a very expensive 3m high retaining wall and back fill, or reduce the height of my driveway by 1m. He chose the later option, and proceeded to rip up my sealed driveway.

Now that he's finished his site cut, he is refusing to restore my driveway to its original condition (i.e. get it re-sealed). Stupidly I do not have any written agreement in place, but I have witnesses and voice recordings that prove he has acknowledged his obligation to repair my driveway.

What law(s) are relevant in this scenario?

Before I engage a lawyer, I want to send him a letter of demand outlining his obligation to reinstate my driveway while citing the relevant laws.

Please help!
 

Scruff

Well-Known Member
25 July 2018
902
133
2,389
NSW
If I'm not mistaken, this would simply be a breach of contract issue, so it would be a civil matter.

If you recorded the conversation where the agreement was made, then that should be sufficient to prove that a contract exists. In Victoria you can legally record any conversation that you are a party to, so there shouldn't be any issue using the recording as evidence if the need arises.

(If anyone kicks up a fuss about the recording, then refer them to Section 6 of the VIC Surveillance Devices Act.)
 

Trevor Mills

Active Member
6 June 2019
6
0
31
If I'm not mistaken, this would simply be a breach of contract issue, so it would be a civil matter.

If you recorded the conversation where the agreement was made, then that should be sufficient to prove that a contract exists. In Victoria you can legally record any conversation that you are a party to, so there shouldn't be any issue using the recording as evidence if the need arises.

(If anyone kicks up a fuss about the recording, then refer them to Section 6 of the VIC Surveillance Devices Act.)

Thanks for the reply. Just out of interest, would it make a difference if there was no evidence (voice recording) of a verbal contract? Like, surely there would be an expectation that if granted my neighbour use of my property so he could conduct work on his property, that he reinstate my property to its original condition??? If this is the case, is there any legislation I can point to?
 

Scruff

Well-Known Member
25 July 2018
902
133
2,389
NSW
I'm not a lawyer, but it would make sense to me that there be legislation that deals with rectifying damage to neighbouring properties. But if there is, I'm not sure it would apply here.

The problem I see with this scenario is that you both agreed to "modify" your driveway (ie; dig it out by 1m), not to prevent or rectify damage. The agreement therefore wasn't to "restore the driveway to it's original state", but rather to tear it up and excavate a new driveway. So whether or not he's required to seal that "new" driveway would depend on the terms of the agreement you made. If the agreement was "dig it out by 1m and seal it", then he has clearly broken the agreement. But if it was just "dig it out by 1m", then there's a valid argument that sealing was never part of the agreement.

So I guess the real question is, if there is a law that applies here, does it only apply to rectifications, or can it be applied to modifications as well? The big problem with that question, is that there was another option available (retaining wall and backfilling), therefore the modification may not be seen as being "necessary" by a tribunal or court and that could have a bearing on whether or not any such law would be applicable in the circumstances.

I'm taking stabs in the dark here, so sorry I can't give you something more definitive. Hopefully one of the experts can provide some clarification because it's certainly an interesting issue.

In regard to not having any evidence of the agreement, you shouldn't have too much trouble showing that an agreement existed based on the balance of probabilities. The problem that you will face however, is trying to convince a tribunal or court of what the actual terms of the agreement were without any physical evidence. That will be very difficult to argue.
 
Last edited:

Rod

Lawyer
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27 May 2014
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www.hutchinsonlegal.com.au
What material was previously used to seal your driveway?

When did you first complain about the state of the 'finished driveway? Do you have any emails of texts complaining about the state of the driveway?

At first look, you would have a good case for getting the new level sealed, but the devil here is the detail.