Can Council Make Me Move My Fence?

We had a new colourbond fence and a small retaining installed about 5 years ago, the new fences replaced old ones in the exact same position.

We have since done some renovations and the survey shows that the retaining wall and fence are 40cm over the boundary line.

The land the fence is on is a council owned lane, council now wont provide us with a construction certificate for our renovation even thow the renovations are internal and have nothing to do with the fence.

Do I have any rights to dispute this ruling with council?

Any help would be much appreciated because moving the fence would be a big job.

Comments

  • +34

    I don't know what the laws says in this situation, but how would you feel if someone built a fence 40cm into your property. My guess is that you'd want your land back.
    Perhaps offer to buy the land from council and put it on your title.

    • +6

      40cm is considerable too

  • +20

    Sounds like you need to move your fence back onto your property. It's common in construction projects, if you touch something that's already deficient, it's now your responsibility to fix it.

    • +38

      You mean perhaps the council would like their land back, considering you said you're 40cm over the boundary line.
      It sounds like you failed to do due diligence when replacing the fence, and failed to notice that the fence was in the wrong place. Just because you placed it in the same spot as the old one doesn't absolve you from the responsibility of correcting the mistake, even if that mistake was by the person who put up the old fence.

      • +2

        Pretty much this. It applies to any asset be it a fence, drainage pipe, utilities, road kerb, whatever. It's the reason you look around and wonder why a road or train station that constantly floods hasn't been repaired in forever.

        Nobody wants to touch it because as soon as you fix one bit, you're now liable to fix the entire system. No contractor's touching that with a bargepole.

        So, yes. Expect the council to tell you to move the fence back to the correct position, regardless where it was previously.

      • -11

        So which council employee approved the location of the fence in the first place? Sounds like the council stuffed up and the OP has to pay for it. Maybe the OP can find the original approval papers at the council and talk to a solicitor?

        • +1

          I'd say only 1 in 10 fences has permits anyway. I've seen so many front fences built in my area without permit. It's pretty obvious because the permit has to be displayed.

        • If the council approved the fence they would have approved it under the assumption that it was built in the correct spot as a fence is considered minor building works. You can't be out there holding peoples hands 24/7.

          Somewhere in the history of the property, somebodies solicitor has cocked up and not had the place surveyed or not read the survey report.

      • Council should charge rent for that extra land being used by the OP.

  • +10

    You need to look into what I think is called adverse possession (and if it can be applied to government land) and probably speak to a solicitor that specialises in it. Essentially if you can prove that you've had possession of the land for whatever the required period is in your state then you can legally take possession of it. I imagine it'll be a long and expensive process, especially against council which likely has much deeper pockets than you. Or you can just give them back their land.

    • +2

      This.

      3 questions…

      How long was your last fence up for?
      Who replaced it?
      Do you have any proof that the new fence was put up in the exact same place as the old fence?

    • +1

      Yeah and spend 100 grand in court

    • +24

      Can’t be applied to government land

      • +4

        Bingo!

        This is a relevant link, at least for Victoria. Same would apply for NSW.
        https://www.propertyandlandtitles.vic.gov.au/land-titles/adv...

      • +6

        Hahaahaha, gave themselves immunity did they? What a surprise.

        • +5

          Of course they did - while your neighbour living on his land might actually notice in the time period that you're trying to steal some of his land, literally everyone would be pushing out their boundaries into parks/verge etc. if council weren't exempt and then they would have to employ people to constantly verify someone hasn't done so…

          • -4

            @sakurashu: So what? They have the staff to enforce all their other extortions so how hard is it for them to check fence boundaries while they are there?

    • +7

      adverse possession (and if it can be applied to government land)

      You cannot adverse possess crown land, roads, etc. You don't need a solicitor to tell you that. One of the first rules of what you can and cannot do to acquire land via adverse possession. Otherwise, all sorts of morons would be putting up fences in the wrong locations to acquire crown land.

      • +2

        That's not true at all. You can't adversely possess 'Reserved' Crown Land. This basically means land that's either never been alienated from the crown (eg roads) or reserved for other purposes

        Crown land which holds a certificate of title can be adversely possessed in most states. Usually cheaper and less painful to try and buy the section of land though.

        I'm a surveyor. I suggest you talked to a licensed land surveyor and they can guide you through the process.

  • +3

    This is a common problem. In some countries it is/used to be mandatory to get a surveyor to inspect the boundaries before banks would lend.

    It's your problem and you're not about to get land, potentially worth tens of thousands of dollars, for free.

    • This. Is it not common process to get the property surveyor before settlement to ensure easements and boundaries are in order?

      Also you can't beat the Man. It's just the vibe.

  • +2

    Just tell them to fook off since you don't like it. Problem solved. Moving on.

  • +13

    I'm pretty sure that's how Russia annexed Crimea.

    • +6

      Crimea was more co-operative than the council

    • +2

      Hahaha. Just reminded me of the Sth China Sea.

    • +1

      And how Germany moved it's boundaries in 1939.
      Took a while, but they too didn't win.

      Move the fence, OP.

      • +2

        I love it that there are other people out there that take an interest in geography and history.

  • +7

    Adverse possession cannot be made against Crown or Council land. As such, apart from hanging your certificate as a carrot, Council will also want to avoid having to deal with a potentially (failed) claim later in the future.

    • -1

      That's not true at all. You can't adversely possess 'Reserved' Crown Land. This basically means land that's either never been alienated from the crown (eg roads) or reserved for other purposes

      Crown land which holds a certificate of title can be adversely possessed in most states. Usually cheaper and less painful to try and buy the section of land though.

      I'm a surveyor. I suggest you talked to a licensed land surveyor and they can guide you through the process

  • +3

    Everybody knows whenever you do anything to your property it will need to be approved by your council and it looks like they've found something that is not right and it needs to be sorted, there is not much you can do, I know people who've had to spend 100k fixing old issues when all they wanted to do was build a shed.

    The council inspectors can flag Absolutely anything also the council rules change constantly so what may have passed a few years ago will not pass today.

    Sorry

    • What?!

      Rules are not retroactive.

      They don't send building inspectors for a planning permit. Especially for a shed.

      • He just said they didn't approve his fence

        • +1

          because he tried getting his house renovations certificate. they wouldn't have checked otherwise.

          • @Jugganautx: Exactly whenever you get renovations done you need inspection that's what I said…

            • -3

              @Willco88: Inspection of the boundaries and dimensions isn't a building inspection.

              • +1

                @tshow: Nobody said building inspector but okay relax

      • +1

        They don't send building inspectors for a planning permit. Especially for a shed.

        Bull$#!t. I had two come out.

    • That's not how anything related to building approvals work

  • +7

    Better get a lawyer son, and it better be a real good one.

  • +1

    Try and find a company that liaises with councils on behalf of people with non compliant construction.
    They are often ex planning department employees who know how to navigate the process and negotiate solutions.
    Basically they know how to play the system and how to get around everything.
    A solicitor could make things worse and cost more.
    I know someone who does this as their business but not in NSW.
    Maybe contact this lot and see if they can put you on to someone in your area
    https://www.bdds.com.au/services/unauthorised-building-work/

  • +1

    If course you have a right to dispute. Is it likely to go well? Probably not. You are probably going to have to move the fence.

  • +21

    Have you considered doubling down and moving it 40cm the other way?

  • In answer to your question, can council make you move the fence? … do you require that construction certificate for your renovation? The answers will be the same.

  • +1

    Of course the Council can’t make you move your fence. Parliament gave the Council its powers, but God gave you yours. Tell them you are a sovereign citizen and they’ll back off very quickly. This also works well when the State’s police purport to fine you for speeding. Or they try to tax you on your income. Its all a fraud and in breach of the Magna Carta and the Bible. (Disclaimer: This is not legal advice and should not be relied on under any circumstances. You should seek advice tailored to your particular circumstances from a professional adviser)

    • …So ignore everything you said then. OK.

  • +2

    Why are so many of these sovereign citizen flops spouting their trash these days. It’s not based in legislation or reality.

  • +1

    Yes they can, and yes you can.

  • +4

    Maybe you can ask council to pay for half the fence as they are your neighbours :)

    • Ask for the whole fence, as it is on their property, clearly past the boundary line.

  • +4

    If you havin' council problems, I feel bad for you son, I got 99 problems but a fence ain't one.

    • is this diji2.0 new and improved

      • Nah Diji1 is just a pretender :)

  • +3

    Yes the council can do that. You should have done your due diligence and had the property surveyed, or at least checked the measurements from the land title yourself, before you bought the property, let alone replaced the fence.

    Here's a cautionary tale (if you think you can get away without development permits just because "it's there now"):

    "The NSW Land and Environment Court has fined a man over a house built without approval in the Camden Haven.

    Ben Notley, a builder, pleaded guilty to carrying out development without consent.

    He was convicted, the house was demolished at his expense, he was also ordered to pay a $12,000 fine and pay the council's legal costs.

    The judgment said having regard to the objective seriousness of the offence and the subjective circumstances of Mr Notley.

    The council's costs are "likely to be not insubstantial". The three-bedroom house, for Mr Notley and two of his children to live in, was on land near Bonny Hills.

    Mr Notley did not seek consent for development on the property. An ecological impact statement would have been needed before any consent was granted.

    The court said the offence of undertaking development without consent involved Mr Notley taking action that undermined the integrity of the system of planning and development controls. The house has been demolished."

    https://www.portnews.com.au/story/2002165/councils-win-in-la...

    • +1

      You should have done your due diligence and had the property surveyed, or at least checked the measurements from the land title yourself, before you bought the property, let alone replaced the fence.

      ^^ This! This!
      The original fencing being outside the dividing boundary should have been picked up by the OP's due diligence as part of a pre-sale inspection.
      As for new houses, this is done by an independent building surveyor after all construction work is complete.

      https://www.portnews.com.au/story/2002165/councils-win-in-la...

      The full story seems to be missing on the above site.

      • +2

        yeah - but most people don't hire a surveyor when they buy a Torrens title property and I don't think it is part of the building inspection report. Only when the owner or a neighbor needs work that impact their boundary - thats when surprises arise and people start to get salty or need to have that awkward conversation with a neighbour.

        • You don't need a surveyor to find a 40cm difference. A tape measure would suffice. People can buy their property title for <$10 to double check.

    • -2

      I'm likely the nutter here; why do you HAVE to pay rates, when you are supposed to own the land?

      Since your land ownership is subject to council's approval, your land is effectively under co-ownership with the council.

      And undeveloped land needs to pay tax. Your land is again under co-ownership with the government.

      Therefore when you buy a land you are only buying it's holding rights; you become a 'landholder' not land owner.

      Land ownership sounds like illusion of control, no?

      • +1

        You do own the land. You probably own a car but you would still have to pay a mechanic to service it, that's doesn't mean the mechanic co-owns your car.
        Rates are paid by all property owners to pay for the many services provided by councils, e.g local roads, water, sewer, storm-water, footpaths, signage, council facilities (sporting/cultural) and public open spaces (parks and gardens).

          • +1

            @YRT: Then who would administer the Land Titles Registry and enforce property boundaries?

            If there is no council what's to stop me claiming the land you "own" is actually mine?

            Feel free move to a third world country with no roads, infrastructure, telecommunications, or the businesses that rely on them. Then you can live in a "free market".

            • @field1985: @field1985, I don't think you understand the system much, no?

              FYI, Land Titles are administered by state government, not council
              https://www.propertyandlandtitles.vic.gov.au/

              Property dispute is court / law enforcement territory. Council is a regulator at its maximum power, they are not law enforcement. I'd suggest you look into Corkman pub case.

              https://www.theage.com.au/politics/victoria/you-re-not-above...

              This is about Australia's quirky bits on property 'ownership'. No point comparing with other countries, their country their rule. Whataboutism is a lazy copout and does not make Australia a fairer place to live.

              My point is that as-is, there's no true property ownership in this country - what we have is property holdership. I'm happy to receive advice on why council service must be enforced, rather than optional per free market rules.

              • @YRT: LOL. Believe what you like.

                • @field1985: Council could, and would force you out of your property. This Tassie family has found out the hard way.
                  https://www.abc.net.au/news/2017-06-22/rates-paid-on-gods-la...

                  Is the council serving you, or are you serving the council?

                  lol

                  • @YRT: In your last comment you claimed:

                    "FYI, Land Titles are administered by state government, not council"

                    But now you're claiming "Council could, and would force you out of your property."

                    Which is it? Don't bother answering.. you're not worth my time. My last comment stands:

                    "LOL. Believe what you like."

                    • @field1985: lol - I'm happy to receive advice on why council rates must be enforced rather than optional. Tragedy like the Tassie family should not have occurred, no?

                      You have time, feel free to chip in ;)

              • +3

                @YRT: The free market is such an abstract concept, to what degree do you count as intervention? Australia absolutely does not have a free market let alone a pure free market, there is government intervention in every market. Whether it be GST, rent ceilings, minimum wage or essentially any employment law, all of these things effect the pricing of items in the market and thus are government intervention. for a true free market there would be no intervention that would effect the market value of any good or service.

                The way I see it when you buy a house it basically comes with a compulsory subscription that gives you all the auxiliary expectations of home ownership. The regulation and need to get inspections and approval is more to do with safety and how the changes effect other peoples property. Hence why minor renovations don't require council approval.

                Also it was brave of the developers to demolish a heritage site at all let alone without informing the council.

      • Better off, becoming entirely self sustaining and not be connected to the grid.

      • You could make the same argument about any taxes. Rates pay for council services, such as garbage disposal, roads, parks, etc. Other taxes pay for other roads, the education system, army, politicians, etc. It's part of living in a modern state; you don't Hey to opt out (unless you want to live elsewhere or set up a new country). There are certainly some good arguments to be had about how taxes are collected and spent, but this is what we currently have (for what it's worth, I support a land tax, since it encourages you to put your land to good use, rather than banking it)

    • Served him right

  • +2

    Do you know what a fence indicates? Absolutely nothing other than the fact someone decided to put a fence there.

    • -1

      The fence represents the part of land you are occupying ('in possession of'). In every state you gain possessory rights over land once you have occupied that land for a certain amount of time.

      You can then claim adverse possession over it in many situations. Including against crown land which holds a title or crown folio. Reserved crown land is different (eg roads, rail corridors)

  • So many ways for everyone to say the same thing!

    I think the guy has his answer now!

  • Yes

  • +1

    Can they make you move it, YES. Do you have any rights to dispute, there is nothing to dispute, it is black and white you have done the wrong thing. You could try and see if they are willing to let you purchase the crown land you have inadvertently cordoned off and pay for all the costs etc (probably all up will cost more than moving it but you do gain all the extra square meterage if they are willing.

  • +2

    Of course the council can make you move your illegal fence.

  • Not sure what state you are in, I'm only familiar with Victoria.

    Need some more background issue and we may be able to help you more, when was this picked up by council, and what stage are you at, meaning…
    Has your renovation commenced, have you submitted a planning application (was there a requirement for a planning permit?), have you submitted for a building permit, is your extension built and you need a 'final certificate'?

    Lastly, who is the building surveyor is it a private surveyor, or was it the council?

    From the council's perspective, a fence which looks less than 15 years old has been built not in accordance significantly (400mm is a lot) with the title boundary, their evidence is your submitted reestablishment survey. In this instance, the law / power or however you want to put it, is in the Council's favour. Had your drafter/architect known this issue at the time of design or lodgement this could have been 'managed', now that the council has been made aware of it it's more difficult.

    You need to now convince them, that the previous fence had existed in the same position, and had so for a significant period of time.
    Since you didn't have a survey before, to show this as evidence, my suggestion is
    - overlay an earlier nearmap satelite photo (which can be problematic getting it to line up) with a current one of your current fence,
    - dig up any photos that can show some how you have rebuilt this fence in the same position, does it show up on street view?
    - submit/bring out invoices of your fence, any evidence, statement from the fencer to say they built it in the same location. Show this to the council, and go into their office, call them, explain that you had honestly reconstructed the fence in the same position.

    Your best chance is to demonstrate that it's financially restrictive to reconstruct, and that you had only reconstructed it in the same position. All other avenues are going to rub the council the wrong way, costly, or take a long time. Remember councillors don't care about going to tribunal, after all your rates are paying them.

  • -1

    Cancer council

  • +4

    Ask council for a swapsie. Offer to pay for a public bbq to be put out back near your new fence/land. Win win.

    Make sure there is a random (doesnt matter who owns it) mains power point within 20m of the bbq site though in case you want to use a blender if your pumpkins are too hard.

  • Move fence, get approved, move fence back?