VIC Neighbours Built Pergola on Our Property - Property Law Recourse?

[Snowman]

I wonder if I could please ask for your thoughts on my issue.

Our neighbours have erected a 'pergola' - or at least that's what we thought they were doing.

Since finishing the 'pergola', the noise from their house has become unbearable. They spend most of their time in the 'pergola', and have installed a sound system complete with a subwoofer - our entire house shakes whenever their music is on (anytime from 9.30am until pick a time during the night - several times it's been on for 24 hours).

Over the Christmas break, I had to adjust our antenna on the roof - from our roof, I had a clear view of the 'pergola'.

The 'pergola' takes up pretty much all of their back yard and has been fixed onto our garage wall (where the subwoofer appear to have been installed). It has three sets of double patio doors, a completely encased roof with seven sky-lights, two chimneys, an air conditioning unit and a compete set of guttering. One side joins onto their house (it opens up into their house), one side joins onto our laundry, and the other joins onto a wall they appear to have build along side our fence - the clearance from the roof of the 'pergola' to our eaves would be less than a foot wide (and about a meter from our kid's bedrooms).

The chimneys would be less than two meters from our house - we have noticed we've had a lot of carbon build up under our eaves which I think must be from cooker/pizza oven/whatever is in the 'pergola'.

We were not consulted in relation to joining their 'pergola' onto our wall.

Would something like this receive appropriate planning permission without consultation with the neighbours? We have a recollection that, when the neighbours first moved in around 5 years ago, they mentioned that they were planning on building a 'pergola'/outside entertainment area and that they had found a 'loop-hole' around applying for permits.

To me, what they have done is built an extension - most probably without approval and have completed the vast majority of the building work themselves (they are not builders) - whilst it appears to me (also not a builder) that what they have done has been done to a reasonable standard, I am concerned as they have installed a fireplace/gas heaters/gas BBQ etc.

Please let me know your thoughts - does it sound dodgy? What can/should I do under property law if so?

Cheers

 

[@thelawbundle]

Hi Snowman,

Yes - this sounds dodgy.

Without seeing your local planning scheme I can't be more specific than that but based on your description of the structure, I'd be very surprised if they didn't need require a development permit. I'd also be very surprised if your local planning scheme allows the small set-back that you've described.

As to your question about what you can do, I see 2 options at this stage:

1) Go yo your local council's website. This should contain a lot of information about town planning. There should be a facility on there where you can search for development permits that have been granted to your neighbour - see if they have one for the pergola. If they do not, lodge an enquiry with your Council asking them to investigate the matter and advise you whether or not the structure is lawful. If the structure is not lawful, enquire as to what the council proposes to do about it (they should start by serving formal notice).

If your Council is tardy, put pressure on your local councillor to get the issue resolved or get the Ombudsman's office involved. You can also ask the Council about any noise standards that apply to your neighbour (under Council's by-laws, or environmental legislation - I am not familiar with the relevant Victorian legislation and so I apologise for not being more specific).

2) Engage a town planning solicitor to advise on the legality of the structure and also any environmental nuisance standards that would apply (e.g. noise pollution). They may advise you that you have some cause of action for a private nuisance claim and/or assist you in approaching your local council about any development offences, for example.

Obviously, from both a practical and cost perspective, option 1 may be preferred.

Perhaps you can update us as to any response from your Council? After that, we may be in a position to offer some further insight.

Hope that helps.

 

[Snowman]

Thank you lawbundle

 

[Tripe]

As a rule you normally need a building permit on any structure greater then 3m x 3m, plus it needs sign off by a building surveyor.

If it is attached to the boundary fence, it most likely has been built in the side setback zone, and needs council approval.


Call your council (send in pictures) and ask a few questions about the structure.