Building Order from Stirling Council to demolish retaining wall - No permit from 30+ years ago

Discussion in 'Renovation & Home Improvement' started by rhinsor, 26th May, 2022.

Join Australia's most dynamic and respected property investment community
  1. rhinsor

    rhinsor Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    655
    Location:
    Perth
    Does anyone have experience with councils submitting building orders to demolish retaining walls that are over 30 years old because they don't have a permit?

    Most of the neighbors have the exact type of wall build around the same time, still standing strong with no damage. Can the council issue building orders for something this old and how can I prove they haven't lost or destroyed the permit?

    Building Order

    3. Building order details

    This building order is issued under section 110 of the Building Act 2011 in respect of the following:
    Provide details
    1. Building work has been done on the Property in contravention of section 9(a) of the Act because the Building Work was done without a building permit being in effect.

    Building Act 2011

    This in the section of the action
    Part 2 — Building and demolition permits Division 1 — Building or demolition permit generally required for building or demolition work

    9. No building work without a building permit A person must not do building work unless —

    (a) a building permit is in effect for the building work; or
    (b) a building permit is not required for the building work under Part 5 or regulations or an order mentioned in Part 5 Division 1; or
    (c) the work is done in accordance with a building order; or
    (d) the work is done in the course of taking action under section 118(2).

    Penalty:
    (a) for a first offence, a fine of $50 000;
    (b) for a second offence, a fine of $75 000;
    (c) for a third or subsequent offence, a fine of $100 000 and imprisonment for 12 months.
     
  2. Scott No Mates

    Scott No Mates Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    27,103
    Location:
    Sydney or NSW or Australia
    Is there any context to this?

    How many times did council issue you a notice of intention to issue an order?

    Does the work predate your ownership?

    How old is the property?

    Was this installed to support the neighbours property after you changed soil levels?

    Did the council enter your land to discover the wall?
     
  3. rhinsor

    rhinsor Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    655
    Location:
    Perth
    Is there any context to this? I got a random email from a building surveyor earlier in the year saying they want to inspect my property regarding an unauthorised/unsafe retaining wall.

    How many times did council issue you a notice of intention to issue an order? They requested for access but wouldn't provide me identification before hand so I refused.

    Does the work predate your ownership? Yes 30+ years

    How old is the property? 1987

    Was this installed to support the neighbours property after you changed soil levels? The property was one of the first on the street, there wasn't a house left or right of it.

    Did the council enter your land to discover the wall? No idea how they discovered the wall, the tenant didn't let them in.
     
  4. Scott No Mates

    Scott No Mates Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    27,103
    Location:
    Sydney or NSW or Australia
    What is it providing support to - neighbour or your property?

    You may need to investigate the original development approval, copies of historical aerial photos of the property to show when it was built and whether there was an approval.
     
  5. spludgey

    spludgey Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    3,483
    Location:
    Sydney
    Not a lawyer, not legal advice: I'm not sure if the Building Act 2011 can be used here as the wall predates it.
     
    Scott No Mates likes this.
  6. rhinsor

    rhinsor Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    655
    Location:
    Perth
    Supports a neighbours driveway. I've asked them questions but I'll see what they say, the form says I have to take it to the State Administrative Tribunal if I don't agree.
     
  7. Scott No Mates

    Scott No Mates Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    27,103
    Location:
    Sydney or NSW or Australia
    • Did the neighbour install it when they built the driveway?
    • Is it shown on their application?
    • Does it sit on the boundary and have the fence or is the wall on your land?
     
  8. thatbum

    thatbum Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,792
    Location:
    Perth, WA
    Time to lawyer up I suppose. Let me know if you need a referral or recommendation.
     
  9. rhinsor

    rhinsor Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    655
    Location:
    Perth
    No idea this was over 30 years ago. The wall is on my side of the fence but no guarantee it's "my land".

    I've emailed local council MPs, mayor and deputy mayor with my concerns, lets see what happens Monday.
     
  10. Scott No Mates

    Scott No Mates Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    27,103
    Location:
    Sydney or NSW or Australia
    Have you considered a boundary identification survey? That's so you know it's on your side or the neighbour's property.
     
    wylie likes this.
  11. rhinsor

    rhinsor Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    655
    Location:
    Perth
    Would the onus be on the council to prove I own the land?
     
  12. Westminster

    Westminster Tigress at Tiger Developments Business Member

    Joined:
    3rd Jun, 2015
    Posts:
    11,331
    Location:
    Perth
    You probably can apply for a retrospective DA and/or building permit for it but gosh after so long I'm surprised at this. Things like this generally only come up when someone (cough neighbour) reports it because it's impinging on what they want to do.
    At that time, in your area there would have been a million retaining walls DIY built by owners because that's how they did it.

    Do you think it's unsafe? It might be easier to propose to demolish it and rebuild it than go down the SAT/Lawyer route

    Any chance you bought Title Insurance? They might assist in this circumstances.
     
  13. Scott No Mates

    Scott No Mates Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    27,103
    Location:
    Sydney or NSW or Australia
    I prefer to know the answer before I ask for the answer.
     
    skater likes this.
  14. rhinsor

    rhinsor Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    655
    Location:
    Perth
    So progress:

    The request to the mayor has been forwarded to someone and I've received a detailed response.

    0. The council received a request for service from a "neighbour".

    1. The building order was sent after someone from the council went and looked over the fence because they wouldn't provide ID before I allowed them entry. Not sure how they measured the ground and elevated land is over 500mm.

    2. The building order is to demolish the standard dividing fence not the actual retaining wall. They consider the standard fence unauthorised retaining. I told them the neighbour built up the land to put in additional parking so i asked the council if they have a permit and if that permit stated they had to build and maintain a retaining wall.

    3. I told them the neighbour damaged the fence over a decade ago by hitting it with a car. Google maps has evidence it was that long ago.

    4. I've ask for the building order to with withdrawn or amended as it's not accurate.

    I'm actually surprised the quick response and detail provided.
     
    wylie and Westminster like this.
  15. rhinsor

    rhinsor Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    655
    Location:
    Perth
    Unsafe no, been the same way for over a decade. Title insurance no, didn't consider it nearly 15 years ago
     
  16. Westminster

    Westminster Tigress at Tiger Developments Business Member

    Joined:
    3rd Jun, 2015
    Posts:
    11,331
    Location:
    Perth
    Sounds promising. Hopefully it will end up being an mountain out of a molehill and your neighbours will pull their heads in - or be told by Council that they started it and it's actually the neighbours issue :p
     
  17. rhinsor

    rhinsor Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    655
    Location:
    Perth
    So more updates and clarity in case anyone is interested in all the hoohaa by the council.

    One photo shows the "unauthorised retaining wall" from the building order which is actually the dividing fence that has had the same gap for 10 years. No other parts of the fence are a problem.

    From the photo I really don't see a 500mm height difference from either side of the land which requires a retaining wall. Can the council just hand out building orders with no factual information hoping the recipient doesn't investigate?

    the second photo shows the gap from a 2014 google maps image.

    received_4828696165539171.jpeg upload_2022-6-1_21-16-10.png
     

    Attached Files:

  18. Coconutwheels

    Coconutwheels Well-Known Member

    Joined:
    20th Jun, 2015
    Posts:
    257
    Location:
    Newcastle
    Looks like asbestos sheeting fence……neighbours prob quote a quote to remove it of “two arms and two leg” and now want you to pay for it instead
     
  19. Scott No Mates

    Scott No Mates Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    27,103
    Location:
    Sydney or NSW or Australia

    Well spotted :D
     
    skater likes this.
  20. skater

    skater Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    10,222
    Location:
    Sydney? Gold Coast?
    Keep us up to date, this is an interesting scenario