My neighbour and I are going to an NCAT hearing regarding a dividing fence. I believe it needs replacing, neighbour does not.
The current fence is acting as a retaining wall to hold back a significant amount of soil that was brought into the property by the neighbour. The fence is starting to fail to retain this fill which is one of several reasons that I consider it to not be "sufficient" under the act. Our side is at natural ground height.
If the fence is replaced, a proper retaining wall will be required which will have significant cost.
Under the dividing fences act it states that a retaining wall is considered part of a fence if required to support or maintain the fence. As far as I understand, if this is the case then general principles of the Dividing Fences Act mean that neighbours are liable to contirbute equally.
I believe that the neighbour should have to pay 100% for the wall as it is they who "changed the lie of the land". I also feel that the wall should be on their side of the property boundary because of this. Surely whether the fence is next to the wall or on top of it does not matter as the wall is still required to "maintain" the fence i.e. stop the fence collapsing.
Should I push for this at NCAT or can they not make this determination?
Is there some other legislation that covers this apart from the Dividing Fences Act? If so, would it have to be pursued separately through the local court?
The current fence is acting as a retaining wall to hold back a significant amount of soil that was brought into the property by the neighbour. The fence is starting to fail to retain this fill which is one of several reasons that I consider it to not be "sufficient" under the act. Our side is at natural ground height.
If the fence is replaced, a proper retaining wall will be required which will have significant cost.
Under the dividing fences act it states that a retaining wall is considered part of a fence if required to support or maintain the fence. As far as I understand, if this is the case then general principles of the Dividing Fences Act mean that neighbours are liable to contirbute equally.
I believe that the neighbour should have to pay 100% for the wall as it is they who "changed the lie of the land". I also feel that the wall should be on their side of the property boundary because of this. Surely whether the fence is next to the wall or on top of it does not matter as the wall is still required to "maintain" the fence i.e. stop the fence collapsing.
Should I push for this at NCAT or can they not make this determination?
Is there some other legislation that covers this apart from the Dividing Fences Act? If so, would it have to be pursued separately through the local court?
