# Forum More Stuff Debate & Technical Discussion  Retaining Wall Infringing on Council Road Reserve - Notice to move!

## GeorgeDawes46

We moved in to our new house in Logan Council 6 months ago and we have just been served a notice by Council to say that the retaining wall around the front of our property infringes on the road reserve at various points by 0.35m-1.0m and that we have not made any application or been granted any permission to have it there. 
The wall goes round a bend in the road and is approx 45m-50m long. It was there when we bought the house. It was there when the previous owners bought the house 10 years ago and it seems to have been there for many years judging by the size of the trees behind it. The house was built in 1978. We have a few of the plans to the house and extensions which have been built, but there's no mention of a retaining wall (and we're not sure it needs permission) 
It's made of big sandstone rocks piled on top of each other. At some points it may go over 1m high. We haven't measured it yet. Behind the wall is a small embankment and then the house sits on a plateau about 6-7m from the wall. 
Do we have any hope of getting any sort of permission to keep it there??? Can we buy the land from whoever owns the little strips it cover to make it compliant. Clearly this has come as a complete shock to us and we are mortgaged up to the hilt, so don't have a spare $50,000-$100,000 to move it.

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## andy the pm

I would talk to the neighbours to try and establish when the retaining wall was built.
I would also take it up with your conveyancer or lawyer who handled the property transaction because if its an ongoing issue they probably should have identified it.
You could also engage a surveyor to check whether it does actually encroach on the nature strip but I think the main issue for the council is that no DA has been submitted as any retaining wall over 600mm needs to be council approved.
I would also talk to the council and explain to them you have just purchased the property and would it be possible to do a retrospective DA. Its unusual for councils to make people pull things down (unless its dangerous), they just get upset when they find out because they miss out on their fees!

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## GeorgeDawes46

Thanks Andy, 
Unfortunately it's not the neighbours it infringes on, it's the Council. They call it the road reserve...basically the bit of grass between our front wall and the actual road. I don't know what these things are called (complete beginner here!), so it might be a nature strip. 
Council recently built a footpath on it and whilst it all appears nice and safe and plenty of room, etc, they have now surveyed it and from the plans from the 70s, they are saying the retaining wall crosses out of our property onto the road reserve area by varying degrees at different parts of it. The biggest variation is 1m on their plan, although there is still a sufficeint margin of grass on both sides of the concrete footpath. 
Looking at it you wouldn't think there is anything wrong...it's just that many years ago it looks like someone has put some big rocks in the ground a few centimetres off where they should have put them. The fact there is an embankment of several metres (the rocks are probably between 0.5-1.5m high) behind the retainiing wall which ahs big mature trees and a house built on it now which is a tiny bit of a problem...oh, and it's 45m-50m long!

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## Sir Stinkalot

Drop into Council and have a chat with the planning and building department. At the end of the day the previous owners have built something on councils land (intentionally or not) that provides them benefit. The knee jerk reaction from council (and the red tape approach) would be to ask you to rectify the situation. The sensible thing is to sit down with them and talk about it. 
If you aren't getting anywhere talk with your local ward councilor and the mayor. 
There was a case earlier this year with a wealthy businessman on the Mornington Peninsula building his pool on councils land. Big legal costs there but it was more involved than just a letter from Council. From memory there was even talk that he could buy the land from council. 
On the other end of the scale I know of a situation where council built the road over a friends property (large land area) and to compensate they just increased another boundary to give them some more land back!

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## GeorgeDawes46

Thanks Sir Stinkalot, that's our next move, speak to Planning Dept. 
We spoke to our local division Councillor who basically said he had been involved in a similar case a while back and Council's approach tends to be one of non-negotiation...it's not their wall and it's on land they are responsible for, so it has to be moved off as they do not have insurance which covers them for any liability if our wall causes any third party damage. He also said they may offer to allow us to keep it there if we sign a waiver agreeing to take all third party liability in the future. He told us the previous case decided to move their wall as they couldn't get any buildings insurance to cover a structure on somoene else's land and so they had no third party insurance. We also suggested we could buy the land apply for Planning Permission, but the Councillor said it was Crown land and they couldn't sell it! 
We looked up the rest of the street...half the houses have walls made from the same big rocks, and most of them are as close, if not closer to the road than ours...one is less than 2m to the road and the footpath narrows to squeeze between it and the road. All of them have been there for 30yrs plus.

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## Danny

> We looked up the rest of the street...half the houses have walls made from the same big rocks, and most of them are as close, if not closer to the road than ours...one is less than 2m to the road and the footpath narrows to squeeze between it and the road. All of them have been there for 30yrs plus.

  Were you the only ones to get a notice?

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## GeorgeDawes46

As far as we know we are the only people who got the notice. When Council put in a footpath 3-4 months ago they moved a rock which had fallen over. It wasn't in the way of the path, but our local Councillor came into our house and said they would put it back in place as a matter of courtesy to make the wall look nice as they had all the machinery there and we would be having some inconvenience and noise for a few days (it was a case of lifting it back up from it's side to it's feet in its current location.) They didn't...they moved it up the road, leaned it against the wall upside down and put some metal posts round it! Turns out he forgot to tell the Contractors. The Councillor said someone must've complained about it. He then arranged for Council to come and remove it free of charge as it was close to the path and he had forgotten to tell the Contractors. They did this on the same day we got the letter about the rest of the boundary being wrong. Turns out enforcement decided to survey it to make sure we had moved it to the right position. We are assuming their survey is accurate, as we haven't done one ourselves yet. We're new to the area and don't know our neighbours...in fact, next door who also stick out more than us with identical rocks have just moved in a couple of months ago.

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## Danny

Can you get a copy of the survey?  
How wide is the wall (assuming that the wall is uniform in width)?  
Are all sections of the wall infringing on the council's property? 
Are all of the houses that have walls of a similar 'vintage'? 
Given that the neighbour's retaining walls are also made from the same type of rock, are all of the walls a similar design?

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## GeorgeDawes46

> Can you get a copy of the survey?  
> How wide is the wall (assuming that the wall is uniform in width)?  
> Are all sections of the wall infringing on the council's property? 
> Are all of the houses that have walls of a similar 'vintage'? 
> Given that the neighbour's retaining walls are also made from the same type of rock, are all of the walls a similar design?

  Yes, we got a copy of the survey. At one single pointo on the bend, the wall comes in and the outide (roadside) of it is in line with the boundary...probably for only 30-50cm...then it sweops out. On average it is 0.55m-0.7m across the line for the rest of the wall (approx 45m-50m) 
The width of the wall is hard to say, all the rocks are different sizes. They range from a two man lift to literally person sized rocks weighing easily half a tonne, probably more. They measured to the base. In some places there are a couple of layers of rock piled on each other. the upper levels are angled back into the hill (our property) It may be that the majority of the base rocks are 100% outside our boundary. It is also the case that probably 50% of the upper ones are inside our boundary. 
95% of the length of the base of the wall is outside our boundary...a very short section (or even just point) comes back to having the outside face ON the boundary (not inside it) 
All the houses with similar walls are of similar vintage. Probably 40% of that side of the street have identical rocks, although ours is the highest as we are on a hill and a bend, the rest are straight with a small gentle slope. The other walls in the street are relatively new fancy bricks, or one or two colourbond. Anything non-rock looks newer than the rock ones which all look identicallly built, all the way along the street. Looking at the style of the houses, 25-30yrs old is probably a fair estimate for the whole street.. 
We also have a very short section which goes into our car port at a boundary fence with a neighbour (which hasn't been surveyed but is probably over 1m high!) If it wasn't for that small section actually in our land...we'd be tempted to say that since the base of the wall isn't in our land, has been there for 30 years and there's never been a planning application by any of the owners of the house previously, then there's actually a possibility that it isn't our wall, it's Council's!!! 
EDIT: As for design of the other rock walls, yes they all look to be built pretty much the same way.

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## woodchip

I'd lay a wager council probably built the wall in the first place, might be worth investigating that.
Surely if its not on your property....its not your responsibility?? 
cheers

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## stevoh741

> I think the main issue for the council is that no DA has been submitted as any retaining wall over 600mm needs to be council approved.

  You can build to 1m up here before requiring council approval.

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## intertd6

More bureaucratic nonsence, the powers to be more than likely approved the development after completion of construction by the developer as the street retaining walls alignments are similar , so ultimately they could be at fault. I would be thinking there could be a statute of limitations possibly.
regards inter

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## Danny

> If it wasn't for that small section actually in our land...we'd be tempted to say that since the base of the wall isn't in our land, has been there for 30 years and there's never been a planning application by any of the owners of the house previously, then there's actually a possibility that it isn't our wall, it's Council's!!! 
> EDIT: As for design of the other rock walls, yes they all look to be built pretty much the same way.

  This is what l was thinking but l just wanted confirmation of a few things before suggesting it. It seems very strange to say the least and l would love to know if any of the other similar walls ever had a permit. If they are all also 'impinging' or are substantially and even totally on council land, then the law of probabilities certainly comes into it as just what are the odds that every single near identical wall of the same vintage were all built at possibly the same time without permits?

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## Gaza

isnt there some rule that after a numbers of year the title can transfer on the land,

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## Bedford

> More bureaucratic nonsence, the powers to be more than likely approved the development after completion of construction by the developer as the street retaining walls alignments are similar , so ultimately they could be at fault. I would be thinking there could be a statute of limitations possibly.
> regards inter

  Council said to me once over an issue, that "if it's been that way for over 8 years, and we haven't done anything about it, there is nothing we can do". I haven't been able to find anything official on that, but it was good enough for me at the time.   

> isnt there some rule that after a numbers of year the title can transfer on the land,

  It's called Adverse Possession and you need to hold it for about 15 years ( could vary by state ) but I think it only applies to privately held land.

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## Danny

> It's called Adverse Possession and you need to hold it for about 15 years ( could vary by state ) but I think it only applies to privately held land.

  I remember seeing something a few years ago about a laneway that was found by a land owner to be on their surveyed property. From memory, there was nothing they could do about it. I wonder if this is a one sided law? Whirlpool have had a few threads about adverse possession. 
The crux of this situation is determining if council gave (tacit or otherwise) approval for the walls but how would this be found? Are any of the home owners original residents? People can have amazing memory for detail and the walls may have been part of the estates plan. There are plenty of new estates today that have similar streetscapes and it is reasonable to assume that estate walls would have to pass by council. It makes it difficult when council is resident selective and arbitrary as in this case.

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## GeorgeDawes46

We have spoken briefly to the Council's Planning Department and they don't know why enforcement are making a big deal about it as the wall isn't causing any  obstruction. Our suburb used to be in a different council years ago and there are only paper records from back then which have all been archived. All electronic versions are post 1995. The wall may have been up from the late 70s. One Planning Officer actually said they didn't know why we got the letter as Enforcement hadn't sent us any info confirming the wall was indeed ours...it could be the Council's! Apparently the old Council used to provision such boundary walls in development areas at that time and no planning permission was needed. That would explain why no one has ever applied for it, and why the base is outside our property.

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## Gaza

seems bizar that enforcement are worried about but planning isnt,  
did the planning guy give you a letter, 
time to see the mayor to sort it out before you end up in court

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## GeorgeDawes46

Planning didn't give us anything, but they are going to go through the archives and see if there is any further info regarding permission or ownership...or even who built it!

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## shauck

Maybe do a polite letter drop up and down the street. If any original owners are about, they might be able to remember who did the walls.

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## Danny

G'day George, 
I hope this doesn't drag out too long for you. Whoever commissioned the walls obviously thought their character and continuity would enhance the area's amenity and from your description, they have. Looking forward to hearing of a positive outcome. Good luck.

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## GeorgeDawes46

> G'day George, 
> I hope this doesn't drag out too long for you. Whoever commissioned the walls obviously thought their character and continuity would enhance the area's amenity and from your description, they have. Looking forward to hearing of a positive outcome. Good luck.

  We've now spoken to a specialist Property Lawyer, rather than the firm we used for conveyancing...they got all defensive when my wife called and said it had nothing to do with them, wasn't their fault, and don't even think about saying that it was! My wife then pointed out that we were their client, had recently used them in a related property matter (buying said house), and that she as calling for advice, not to point the finger at them..so they calmed down a little! We then sent them all the docs and some photos...and haven't heard a thing since. That was Friday. Hence the reason to change lawyers before we get right into it. 
I'll keep this thread updated with any developments

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## Jamesmelbourne

A judgment of interest (and an outcome by the NSW judicature in your favour). These outcomes turn on the facts of each case though.   Vaughan v Byron Shire Council (1999) 103 LGERA 321.pdf

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## Bloss

I'd be getting one or two of your local councillors involved, not paying lawyers. As soon as you take the legal path then backs will be got-up and you start to lose control. Get a common sense result - that means talking to the council (and the elected ones especially, not the employees).

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