All quiet on the Eastern front

I'm having next-door neighbour issues. When we bought our house in 2001 the side boundary was a three-foot high brick retaining wall, with a standard six-feet high wood paling fence on the boundary line behind our retaining wall. On the far side of the fence was a typical Aussie back yard, with a lawn sloping fairly steeply down the the fence from the neighbour's house. Over the years a bit of dirt had washed down and accumulated about 50mm (2") deep at the bottom of the fence palings, but basically the neighbours ground level was at the bottom of the fence.

About a year after we moved in, the house next-door was sold, and soon after the new neighbour started 'landscaping' his garden. I have no problem with him wanting to level parts of his garden and establish some fruit trees and a vegetable garden, but he's undertaken major earth moving activities, which culminated up with him piling about four feet deep of earth against our wooden boundary fence, held back only by some sheets of corrugated iron (which he only started using after I complained that the dirt being piled directly against the wood fence would make it rot).

Despite making a complaint to our local council about the weekend earth works being done at the time, my neighbour didn't remove the earth he'd piled against the fence. I didn't pursue the matter any further at that time (a BIG mistake), as I assumed the council should have enforced the relevant building rules. After all, the council ranger had come to see what he was doing.

Then, about six weeks ago, my neighbour came over and announced that he intended to pull down the boundary fence (expecting me to pay for half the cost of replacing the entire 18m length of fence!) and rebuild it 300mm (about 15") closer to our house after building a 'proper' retaining wall on top of the existing brick retaining wall.

The problems I have with his plans are:

a) according to the survey report I got when I bought our house, the property boundary is at the existing wood paling fence, NOT on our side of the brick retaining wall. He claims to have a survey that shows our side of the brick retaining wall as the boundary line, but he hasn't given me a copy of that report. Also, surveyor's I've talked to recently state that there's no way two modern survey reports would vary by more than about 50mm in the position of a boundary. A 300mm difference seems unbelievable. Relocating the boundary fence would add about 6 square meters to his land area (about 1% of the property size) by taking it from our property. Based on current property values that amount of land is worth about $6,000!

b) having located a listing of the local building regulations on the Internet, it turns out that our neighbour wasn't allowed to add (or remove) more than 200mm of earth (about 10") from natural ground level without submitting a development application - his previous earthworks piled earth about 600mm deep against the boundary fence.

c) any new retaining wall built without getting a development application approved can't be more than 900mm high AND also has to be set back AT LEAST 900mm from the boundary line!

d) the existing wood paling boundary fence is being damaged by the earth my neighbour piled against it. If he simply removes the dirt he piled against it and puts in a retaining wall 900mm back from the boundary line (where it's permitted without requiring a DA), only the 2m of fence closest to the road actually needs to be replaced (as it's started to lean over where the posts have rotted). That will cost a LOT less than replacing the entire 18m of fence.

This time round I immediately contacted the council to complain about his intended construction activity, and council sent him a letter stating the current building regulations and suggesting he contact them to submit a development application. A council engineer wasn't available to come out and inspect the earthworks he'd done previously, as they were in the process of hiring a new engineer responsible for our area, and the engineer that was 'filling in' was about to go on holiday. Unfortunately my neighbour appears to have chosen to misinterpret the rules outlined in the council letter as allowing him to proceed with his planned works - according to him he's just 'replacing' the existing corrugated iron 'retaining wall' with a new one, less than 900mm high. He just grinned and ignored me when I pointed out that the rules also require the retaining wall to be at least 900mm back from the boundary line! And that the corrugated iron sheets he placed against the boundary fence isn't any 'existing retaining wall' as he wasn't allowed to pile the earth against the fence in the first place.

After the Easter weekend his workmen turned up and started construction work, so I immediately phoned, faxed and emailed the council to tell them they REALLY need to come out a see what he intends to do, and explain the rules to him. The council did send out the supervisor and he brought along the newly appointed council engineer responsible for developments in our suburb, but when they phoned me to let me know they had discussed the retaining wall with my neighbour, it appeared that they had focused on the work he was doing on the retaining wall on the front of his property (where council would be liable if the wall fell onto passing pedestrians!) and NOT on the work he is planning to do on our boundary line...

I've since had to make repeated (almost daily) calls to the council to urge them to enforce their own development rules, which should stop my neighbour building a new retaining wall on the boundary line and, hopefully, force him to remove the earth he's already piled against our boundary fence. Yesterday I faxed a copy of my survey diagram to the council, to show that the existing paling fence is the boundary line. The council engineer said he'd be calling the neighbour in the afternoon to make sure he understood the rules.

Now I just have to wait and see what happens after the latest call from council to my neighbour (if it was actually made). A solicitor I talked to advised that I should initially try to get the council to enforce the building regulations, rather than start any legal action myself, but it's a bit frustrating not knowing what misinformation the council was fed when they talked to my neighbour, or what they have in fact told him. Last time I talked to my neighbour he was still claiming that council had no problem with 'fixing the existing retaining wall', and was going to proceed with his previous plans.

At the moment every time I go to work I half expect to come home and find our boundary fence demolished and a new retaining wall to have been erected on my property!

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