NSW Retaining Wall Neighbour not responding

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

nick_leeson

Member
19 November 2018
3
0
1
Hi All,

This is perhaps a first, we are planning to knock down an existing house and building a new one. As part of that there is fair bit of a cut and fill which might collapse an existing retaining wall and fence which are already in dilapidated condition. Building the retaining wall on my side of the boundary might not be good idea as the original retaining wall will collapse.

Please note the fence is on the retaining wall.

The issue is owner is overseas since the last 7 years and we used GIPA to get in touch with him. We used NCAT to get permission to knock down the existing dilapidated retaining wall but NCAT gave an ruling that retaining wall is out of its jurisdiction.

This is unfair as the owner has not responded to any of our mails ( registered ) or emails.

What are my options ? Any help would be much appreciated.
 

Rod

Lawyer
LawConnect (LawTap) Verified
27 May 2014
7,726
1,056
2,894
www.hutchinsonlegal.com.au
Options:

1. Do nothing
2. Do the work and sue the neighbour later for costs
3. Do the work and pay for all of it.
4. Take it to court first and ask for permission from the court, plus a costs ruling.

You need to think about which option works best for your circumstances.
 

nick_leeson

Member
19 November 2018
3
0
1
Options 1 and 2 rather impractical as he is overseas and could have moved houses. As for Option 4 which court ? What procedure ? Any more information on Option 4 would be a good start.

I am happy to pay for it and my only concern is trespassing into his property to do the work and tradies don't want to do that.

Sent an email to my local MP as well.

Thanks for the feedback.
 

Rod

Lawyer
LawConnect (LawTap) Verified
27 May 2014
7,726
1,056
2,894
www.hutchinsonlegal.com.au
I'm thinkin the land and environment court or local court. I'm not in NSW and not certain of the jurisdiction of the land and environment court which is a NSW special court.

You'd likely need the assistance of a lawyer as accessing land, engineering drawings, council approvals and requesting costs at court is not as easy as a NCAT fencing dispute.
 

James D. Ford - Solicitor

Well-Known Member
LawConnect (LawTap) Verified
Hi Nick,

With regard to Option 4:

Here is a link to a free NSW LawAccess site which sets out the process to take for the Local Court.

Please note that it is also possible for NCAT to transfer a matter to the Local Court and vice versa.

The New Retaining Wall

It appears strange that NCAT declared the Retaining Wall outside of their jurisdiction, as you have noted the fence was on top of the retaining wall.

Can you please clarify...

Is the new proposed Retaining Wall also to support the fence? or is it in a different position?

If it supports the fence.. then I need to see the NCAT decision to better understand the reasons and advise regarding a possible appeal.

If not, it is likely you should have commenced proceedings in the Local Court... and/or NCAT should have transferred the part of the matter
pertaining to the new Retaining Wall to the Local Court.

Local Council Approval for New Retaining Wall?

Have you determined whether or not you need local council approval for the new retaining wall?

Cheers,

James
 

nick_leeson

Member
19 November 2018
3
0
1
"It appears strange that NCAT declared the Retaining Wall outside of their jurisdiction, as you have noted the fence was on top of the retaining wall.
Is the new proposed Retaining Wall also to support the fence? or is it in a different position?"

The Fence is on the Retaining Wall and NCAT did not rule on this at all. Also NCAT did not refer to the matter to the local court.

Yes we will need Local Council permission for the retaining wall and have contacted a structural engineer to get the ball ruling but were unsure what proceedings we need to get this in a Local Court.