NSW Retaining Wall, Dividing Fence and Boundary Line Issue

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dmcroydon

Member
14 November 2020
2
0
1
We have a dividing fence issue. Our neighbour demolished and rebuilt their house. In their DA they were to cut and fill in order to build a concrete slab. Instead, they just filled their entire property from front yard to backyard. To hold their fill they built a Tashman Block retaining wall starting from 400mm to 900mm high and 5-7 cm from the boundary line according to a surveyor’s report. No DA was sought from the council but the council said it is just a minor non –compliance, no action required. They said that our privacy problem is a dividing fence issue.

The neighbour admits in writing that due to changes made in rebuilding their house, the fence is insufficient and has a privacy issue but cannot agree on how to resolve the problem. Our current fence is in fairly good condition hardwood paling but now it is only 900mm high on their side but still 1.8 m on our side.

The issue is we cannot build any fence centred on the boundary line as there is not enough space. The fencers require between 300 -400mm posthole to be able to build the concrete sleepers as support to elevate the height of the fence. This means that the fence will need to be completely built on our property and we feel it is unfair to lose part of our property. Also, there is a large gum tree on our side that will need to be cut if the fence will be moved onto our property.

We had been to NCAT twice to resolve this problem. At the first hearing, our fencing notice did not much the order sought. We reapplied and asked the fence to be built on top of the neighbour's retaining wall but they had a structural report that the retaining wall is not structurally strong enough to hold a fence. We asked that the retaining wall be moved to accommodate the building of the fence but the NCAT member said NCAT cannot rule on retaining walls that are not part on the dividing fence.

Can someone advise us, please? Any help will be much appreciated. Thank you very much.
 

Harry De Elle

Well-Known Member
11 February 2017
58
3
199
Hi DM,
Firstly is it feasible to laminate new timber post sections to your existing posts so as to enable you to extend the fence height ?
Sorry but I do not know what DA stands for.
Secondly any non compliance that impacts on the amenity a neighbour as a consequence of building works should be remedied.
I do not like the idea of the council being as flippant as they seem to be.
I would apply to NCAT again and join the council as a respondent along with the owner and builder.
 

dmcroydon

Member
14 November 2020
2
0
1
Thank you for your advice.

No, it is not possible to laminate new timber post section as it would be unstable and could be dangerous in the event of a heavy storm. Also, it would be out of character and could devalue our property in the event we sell.

DA means a developmental application for the demolishing and rebuilding of the house.

The initial letter by the council to us stated that the council officer who attended our complaint identified a minor non-compliance. However, when a legal aid lawyer drafted a letter for me to submit to the council, the council came back by saying they needed to have another inspection. After the second inspection, they informed us that everything was compliant and said no further communication will be replied to. They advised us to continue our privacy issue through the mediation as this was a dividing fence issue.