NSW Property Law - Claim to Have Property Restored to Original State?

[Daksha Pindoria]

The owner of one of the properties adjoining my property has built up the ground, has taken down our adjoining fence without any conversation with myself and has now called me asking if I will be paying half of the cost to put in a new fence with a retaining wall.

When I visited my property, which currently has tenants, I find my driveway area is damaged...grass is missing...it is an uneven area. I find a big heap of stones in my front yard! It looks as though some machinery has gone over my land.

I haven't approached this owner just yet but what can I do here to claim back everything to its normal state under property law? Surely I don't need to pay for anything?

 

[Lance]

Hi Daksha,

I would start by confirming with my tenants how the damage occurred. If as you suspect it was the adjoining property owners that did it you could ask them to fix it and follow it up with formal letter demanding that they return boundary to the previous standard and rectify all damage by a specific day.

If they are difficult about it when you talk to them include a statement that failure to do so will result in the matter being referred to the small claims court. If they don't fix it by the date (be reasonable 2 weeks or a month is normal) then get some quotes and take them to court for the cost to fix it.

 

[Daksha Pindoria]

Thanks Lance. Have asked the tenants who have confirmed they were never asked to use our property. Will go through the process you have mentioned.

In terms of them wanting to put up a retaining wall:
1) do I need to obtain survey plans to ensure it is put in the right place?
2) does the retaining wall need to be ontheir side as they require it or does it need to be 50:50?

Thanks.

 

[Rod]

1) No. That is their responsibility.
2) It can be on the fence line, but that creates future issues. I'd be saying put it on your own land.

 

[Wobby77]

We are in a similar situation, our neighbour did say he was going to build a fence at his own cost. But then he built a retaining wall that he didn't need as he is lower than us, put the fence on top and then filled his land up to the bottom of the fence. He has done this to stop the overland water flow that came through his property when it rains. Do not let them build anything until you have approved it. If you think they will go ahead anyway put a order on them to not do any work.

The fact that he removed the fence prior to asking, you are also no liable to pay for half the costs as agreement to share has to be done and agreed before hand as well. He will have to put the fence back up to how it was at his own expense. I would watch them closely in everything they do as we are now living a nightmare.

The council are onto ours to put in drainage as he didn't have the proper permit to move that much fill in, but the extra water flow has already damaged our pool area.

DNRM say it's an illegal Levee and council can direct it to be removed, but they will not.

QCAT won't help until council are done, but they won't put anything in writing.

I have now served the neighbour with papers to finish the fence the same as he started, as he only did 2/3 of the boundary. We cant go into our back yard without being abused, intimidated or threatened.

We got a peace and good behaviour order on him last week. He has left our side of the fence a mess with mounds of concrete.

My opinion, don't sit and wait, be pro-active and nip any possible issues in the butt now. I wanted to tell him a year ago he was going to cut us off, but hubby said to wait, now no one will do their jobs and help. We now will be in and out of court to get him to fix the illegal things he has done

Good luck!

 

[theslydog]

I also had a similar situation. The next door property sold and new neighbours moved in while I was OS. A relative checking my property informed me that they thought the new neighbour was doing some excavating on my property and sent pictures. The properties were fairly new and no fence had at that point been erected. The neighbour had made a measurement from a private road that was not actually in the exact place as shown on the plan. Thus their measurements were out by a few metres.

When I returned from OS I got the council to come and view the new development. They agreed that the land had to be returned to its natural state and any excavating would actually require a DA.

The council duly gave the new neighbour a date to have their mess rectified by. When this date passed without any work being carried out, the council gave them a final date to have it fixed by or they would be fined and the council fix it and they would be charged for that too.

Needless to say, they fixed the mess they had created.
Luckily this neighour was only there for a short time and has since sold and left. The new new neighbour is much more agreeable.

 

[Tripe]

Any neighbor needs to communicate about any issues regarding replacing or building a new fence.

In a urban areas a fence normally needs to be rabbit proof and at least 5 ft.

If they pull down an exisiting fence without communication with you, and put up a new one, then you have no responsibility to pay 50% of the cost.