Melbourne - Council - Encroaching Structure Built without Permit

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              netjock on 10/04/2021 - 00:04

              @i like coffee: If you fix the fence then no structures crossing the boundary.

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                i like coffee on 10/04/2021 - 11:06

                @netjock: That was my original proposal. The fence is misaligned, the previous owner paved over the boundary and the footings of this new structure are over the boundary. I would have the fence put on the correct boundary to prevent any future errors in judgement.
                However this would likely involve cutting of the encroaching paving and cutting of the footing. I'm unsure of the stability of the structure as it wasn't built with a permit.

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          Porker on 10/04/2021 - 00:17

          @i like coffee: Fences are rarely in the correct position. Many are built at a time when equipment was 'best guess' and then just replaced/rebuilt in the same spot over and over again.

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            i like coffee on 10/04/2021 - 11:11

            +2

            @Porker: I think you're telling a "porker".

            Measurement equipment wasn't best guess when this fence was built 10 years ago. Over 100 years ago surveyors could accurately measure boundaries. The issue is that the people who often replaced fences either: weren't educated enough to perform accurate measurements, didn't want to involve additional cost of a land surveyor or incorrectly assumed their "best guess" was as accurate as a proper survey.

            This lack of education and incorrect assumptions are why the quality of building in our country has become low quality. The excuse that the equipment, tools & knowledge weren't available is just a lie told by a "bad tradesmen blaming their tools".

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  Porker on 10/04/2021 - 00:15

  I can see how Council would consider it a civil matter. As example, if your neighbour's tree was overhanging your property, you'd still need to deal with it via civil proceedings even though regulations would prevent the encroachment. Cutting down the branch without permission and returning is not legal, although commonly done.

  If the structure doesn't come under planning or building control or similar, then Council need not get involved if it impacts you alone. They may get involved if it impacts their operation or public safety aspects.

  You'd probably need to take the matter to VCAT.

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    i like coffee on 10/04/2021 - 12:45

    This structure hasn't organically grown like a tree may have. This was built by a person who should have followed both the Building Act & Building Regulations.

    As far as I'm aware, you don't need a permit to plant a tree (but they do have guidelines on how close they should be to a boundary). You do need a permit to remove a tree as there are safety controls that need to be in place.

    The council has established that this structure should have been built with a permit. I'm unsure how they could remove themselves from the equation and say this is now a civil matter.

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      Porker on 10/04/2021 - 12:52

      If the permit required is issued by an independent Building Surveyor, for example, then Council need not get involved with breaches.

      Council is not the overarching orgsnistaion for all building matters.

      Sounds like they've made their position clear to you, so there's no point trying to prove them wrong and pass the issue onto them in the hope you get an outcome in your favour.

      You'll need to take matters into your own hands, hence VCAT etc.

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        i like coffee on 10/04/2021 - 13:01

        In my council area, permits can be issued by either a private building surveyor (licensed by the VBA) or a municipal building surveyor (that works for the council).

        To my knowledge, no building permit exists. The municipal building surveyor has stated that the structure should have been built with a building permit, as it's too large for the class 10a structure exemption.

        The council hasn't made the issue clear for me at all. I've asked them whether a permit was available for the structure, as I would like to view it under the FOI act. They have said that one didn't exist. They performed an investigation only in regards to the height of the structure and confirmed what was documented by the land surveyor - that the structure was too high to be a class 10a structure exempt from a permit. The council hasn't provided any information on the investigation and has stated that it isn't possible to obtain the information through FOI.

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          Porker on 10/04/2021 - 13:14

          @i like coffee: The municipal building surveyor issuing that permit does not (always) mean that it's a 'Council' permit as such. That is, whoever wanted or needed that building permit would have paid Council to obtain it and this is an extra service outside of typical Council that is provided (that is, covered under rates or other revenues). This service is no different to that of a private surveyor - Council's just provide and get paid for it to make it (in some ways) simpler for people to build and another means of revenue.

          Even if the municipal surveyor was paid and issued a building permit, that potentially is not FOI-able as it's not a Council-issued permit. That municipal surveyor is likely operating under his/her own licence / qualifications.

          An FOI-able permit would be, for example, a Planning Permit or one that Council is required to issue as part of it's approval process (or where a applicant is required to obtain it for Council approval) and where an officer has delegation to enact that process.

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            i like coffee on 10/04/2021 - 13:18

            @Porker: If a building permit was issued, or an investigation performed as part of council's processes, then those documents should be stored by council. Hence they would be accessible via FOI.

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              Porker on 10/04/2021 - 13:26

              @i like coffee: The FOI would only pertain to a Council review of its issued permit. If none was issued, or if the permit related to a building permit which the municipal building surveyor was paid to do (much the same as a private building surveyor), then FOI would potentially reveal nothing.

              I just think you're potentially beating a dead horse and wasting efforts with Council when they're potentially not the authority here to resolve your problem.

              The Municipal Building Surveyor is the highest of Council technical staff that would be dealing with your matter. If they're not willing or have no ground to assist, then move on to another avenue to resolve the issue, which is potentially VBA or VCAT.

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                i like coffee on 10/04/2021 - 13:35

                @Porker: Well this hasn't been reviewed by the actual municipal building surveyor. The person was actually a junior reporting to the municipal building surveyor. I just referred to them as such to simplify the conversation.

                When I asked for an official response they copied in the actual municipal building surveyor. So I responded with my request for clarification on what has been investigated and whether they can clarify whether the structure still exists without a permit as it is encroaching on my property.

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                  Porker on 10/04/2021 - 13:47

                  @i like coffee: I think then they've answered your question - they've said that a permit 'should' have been obtained and likely from an independent (paid) building surveyor (either private or municipal).

                  As to whether a permit exists or not, then they've said 'not' as no information has been submitted or available from the private building surveyor within the Council system. Even if one existed, all that Council could do is provide you the contact details of the Building Surveyor and then you would need to talk to them about any permits issued. Council is unable to give you that external information even under FOI due to Privacy limitations.

                  If the Municipal Building Surveyor has been included in the response to you, then they're basically aware of the issue or consulted with the responding officer on the matter.

                  I acknowledge the 'poll' says to pursue Council, but my response is based on my personal experience as follows: I work in a Melbourne-metro Council and manage the department which functions along side all the areas you're pursuing including Building Services (building permit), Governance (FOI and privacy) so see these kinds of issues frequently. Plus as my side gig, I do property restoration/development so have been in this situation many times with VBA and VCAT regarding overhanging, incorrect fences, overland water impacts, non-conforming this or that…

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                    i like coffee on 10/04/2021 - 14:24

                    +1

                    @Porker: Thank you for your helpful response. I was tempted to make a joke about your username being relevant if you're in senior management in local government - however I'm sure that you've heard every joke I could think of relating to public servants.

                    Is the building services department responsible for investigating non-compliant / illegal structures?

                    I'm unsure why the council wouldn't investigate when there is an encroachment and potential safety issues.

                    The Victorian Building Authority (VBA) are almost impossible to contact. After waiting for hours on hold I eventually got through to someone who said the VBA had no SLA to emails ( I had previously requested information on the disciplinary actions on 2 building surveyors that had approved an illegal structure).

                    Do you have any guidance on how to resolve my encroachment issues (structures built without permit (or not complying to permit conditions), encroaching on my property, neighbour has no claim to land as building work < 15 years old)?

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  chrislinke on 10/04/2021 - 08:30

  how does this fence align with your other misaligned fence? Surely they’re parallel, so if both don’t change you’ve got the same size property that you paid for?
  Potentially every house in the street has incorrect fences due to the age of the build, and with modern technology surveyors are just picking it up now? You could be starting a chain reaction for everyone in the street to have to start expensive shifts - could almost be cheaper for everyone to claim each other’s land (assuming net zero area change) and get titles updated.
  Would love see a total block sketch and how each of the fences are running!

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    i like coffee on 10/04/2021 - 12:38

    This isn't a case of every fence in the block being out by 10cm to the East. We aren't the first people in the block to perform a land survey. Our land survey was extended to see surrounding neighbours (for feature mapping) and we could see that only our fences are being encroached upon. Unfortunately it's not uncommon for people to take advantage of the elderly and move a fence line when they rebuild. This seems to have been done to some extent on all of our boundaries.

    I disagree with the comment about modern technology picking up misalignment.

    Measurement equipment wasn't best guess when this fence was built 10 years ago. Over 100 years ago surveyors could accurately measure boundaries. The issue is that the people who often replaced fences either: weren't educated enough to perform accurate measurements, didn't want to involve additional cost of a land surveyor or incorrectly assumed their "best guess" was as accurate as a proper survey.

    This lack of education and incorrect assumptions are why the quality of building in our country has become low quality. The excuse that the equipment, tools & knowledge weren't available is just a lie told by a "bad tradesmen blaming their tools".

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  Artkin on 10/04/2021 - 08:41

  Determine whether satellite imagery exists which pinpoints when structures went up. Time is important. Seek rectification through courts.

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    i like coffee on 10/04/2021 - 11:14

    +1

    I'm not sure what type of surveillance you have on your property but freely available satellite imagery is only updated every year or so in my area.

    This structure was built less than a year ago. It's also unlikely that satellite images would capture details of the footings unless it was the exact time they were being poured.

    I agree that satellite images can be used for proving possession over a period of time though. I'm just not certain how relevant they are to this particular situation.

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  HelpMeiCantSee on 10/04/2021 - 09:01

  Honest question. (A change for me lol)

  Why does this bother you? The building is not on your property- does it prevent you from using a part of your property that you would have otherwise? Or is it aesthetic? Or is it simply because paperwork wasn’t filled out?

  I’m just curious as to motivation here

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    i like coffee on 10/04/2021 - 11:34

    +1

    I've answered these questions in other responses but I'll summarise here as you said your question was honest.

    Why does this bother you?
    My previous neighbour has built on my land in a plot to obtain adverse possession.

    The building is not on your property
    The blue line indicates the surveyed boundary line. The footings are over the boundary as is the paving.

    Does it prevent you from using a part of your property that you would have otherwise?
    Yes, it prevents the fence from being relocated back to the correct position.
    Having a fence that is not in a straight line prevents us from building in a straight line on that boundary.
    It prevents us from building in the area within the red shaded section and also places anything built near to this area at risk (due to the structure being illegal).

    Or is it aesthetic?
    The structure is ~3m in height, 1m above the fence line. Structures below 3m don't really impact on neighbours views in my opinion.

    Or is it simply because paperwork wasn’t filled out?
    Part of the issue is that the correct processes that exist to protect both neighbours have not been followed.
    If the structure was built legally with a building permit, it would not have been built on my property.
    Due to the structure being built with no plans, no oversight, no paperwork, there is no guarantee that the structure is safe (and will remain safe in the future).
    If the structure falls over and injured someone on my property, who is responsible? I doubt insurance covers illegal structures.

    I’m just curious as to motivation here.
    In my opinion it's the council's responsibility to prevent illegal structures like this being built.

    I'm motivated by my plans to renovate and the fact that these encroachments limit the extent that I can build on my own land.

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      HelpMeiCantSee on 10/04/2021 - 11:48

      +1

      Thanks for the detailed reply. It is a pickle, especially with the adverse possession comment, not only does that sound like a douchey neighbour but reeks of someone who cares only for their rights. I didn’t look very closely at your mud map, I’ll have another look.

      Footings being over a boundary (I assume they’re below ground level) won’t pose much of an issue to you for anything and should be easily rectified, but if the structure itself is over the boundary, then that’s just crap.

      Neighbourhood disputes are always shit, and the big problem is it created bad blood that can last for decades.

      Council has many responsibilities, but are utterly apathetic unless it generates revenue for them without effort, so odds are high they are not going to help. Don’t put too much faith in permits and approvals ensuring things like don’t happen- it’s quite common that they do, especially where fence lines are not on boundaries.

      If the structure is unsafe and falls over and hurts someone, odds are you’ll be able to own his house.

      My suggestion is have a coffee with the bloke and say you want to sort out the boundary issues to prevent future problems. Try your hardest to not take things personally, people get shirty when things that have “just been the way they are” get challenged. It certainly sounds like you are in the right, but always remember you have to live there and a nasty neighbour can do a lot of damage and impact on your quality of life.

      Personally, I would concede the structure and use its outer line on your side as the fence line and build a fence as close as possible to that. The paving can be removed and if the footings are sub surface you’ll be able to work around that if you need to build next to the structure.

      Once the fence is in, everything in his side is his problem and no doubt one day the council will wake up.

      I’m sorry bud, it’s crap but part of the joy of home ownership. Fingers crossed you can work out an amicable solution that works for you both.

      Sorry for the long reply.

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        i like coffee on 10/04/2021 - 12:27

        +2

        No need for apologies, your honest response has been one of the most helpful so far.

        My first goal was simple.. we have new neighbours and I'd like to establish a friendly relationship with them as we plan to live here for a long time. I mentioned how the problem we'd discovered was not the fault of either side, just something that's been inherited and I'd like to resolve it now before it becomes a bigger problem.

        I mentioned that if they had title insurance then this problem could easily be resolved without either party being out-of-pocket. However they refused to answer and instead started to become defensive when we asked whether the structure was built with a permit as we weren't notified by the council.

        It could be as simple as cutting the paving, realign the fence and cut the footing to the boundary.

        We tried to have coffee together, even offering to bring over coffee from a local cafe (as we're trying to support the local community, even though this conflicts with my desire to save money) however they refused. We tried to explain about who we are, through our renovation plans (that they'd had for weeks) as this was the purpose of the meeting. However they weren't giving anything away so we could only ask that they provide feedback or ask for clarification on anything that might be unclear to them.

        I hope I don't come across as "one of those neighbours" who reports on illegal structures when they don't impact them. To be honest, the neighbour's property likely has much bigger structures that weren't approved (like the front verandah) but it's not something that concerns me. I only care about the structure in the uploaded image because it's impacting my plans to renovate.

        You're probably right about the council not doing anything that doesn't generate revenue for them (even though they collect hundreds of millions in rates per year). I had hoped that they would be motivated to correct the issue, by a notice to comply, where they may receive revenue if the neighbour fails to act.

        Perhaps my understanding is incorrect but I thought the council had a responsibility to ensure compliance of owner built structures such as this.

        Thanks again for your comments.

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          HelpMeiCantSee on 27/04/2021 - 09:07

          @i like coffee: You are correct, however they rarely undertake their responsibilities unless it’s easy and cheap, generates significant income, will cost them millions (lawsuit) or if you become such a thorn in their side that they have no choice.

          Unfortunately your only option here if the neighbour won’t play is the last one.

          Good luck man. Shitty neighbours suck

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  pjetson on 10/04/2021 - 09:58

  +1

  Where is the fence line supposed to be? Why haven't you put the fence in the right place?

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    i like coffee on 10/04/2021 - 10:36

    +1

    The blue line, labelled boundary line is where the fence is supposed to be.

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      pjetson on 10/04/2021 - 10:40

      +1

      Sorry, all the lines look brown on the drawing you uploaded. So, the "offending" structure is built right on the boundary line.

      Why haven't you put the fence in the right place?

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        i like coffee on 10/04/2021 - 11:40

        +1

        Apologies, that must have happened when it was uploaded to the internet.

        The steel beams of the offending structure appear to be on the boundary above ground however the footings are encroaching on my property. Also the paving that was put on top is also encroaching.

        Realigning the fence to the correct boundary was one of the topics I discussed with the new neighbour. They are under the impression that adverse possession lets people claim land that was illegally built on less than 15 years ago.

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          pjetson on 10/04/2021 - 12:52

          @i like coffee: I am not a lawyer, and this is not legal advice. Having said that, I strongly suggest that anyone contact a lawyer as soon as they discover a boundary problem, or as soon as a neighbour even thinks the words "adverse possession", let alone says them out loud.

          You're unclear with your timelines, but it seems that you have owned your property for a short time, and you have called the owner of the property next door the "new owner", so I'm guessing that they haven't been the owner for long enough to establish their own claim for adverse possession. Does your certificate of title show the boundary as you believe it to be? If the previous owners of your property had been served a notice to claim adverse possession by the current or previous owners of the neighbouring property, I'd have thought that was something that would be shown on the title and/or have to be revealed during the sale process.

          Someone making an adverse possession claim must show they had the intention to possess the land, and having an unchallenged fence around their claim is a good start, and your neighbours seem to have ticked that requirement off their list. However, the true owner of the land can disrupt an attempt to claim adverse possession by removing the claimaint's access to the land, for example by moving the fence to the correct location.

          In Victoria, a claimant has to prove adverse possession for 15 years. I think it may be 12 years in some states. If the current owner hasn't owned their property for that long, I can't see how they could claim adverse possession, although I am not a lawyer. I don't think they can claim the previous owner's access to the disputed land as part of their 15/12 years.

          The "meter is ticking" as long as you leave the fence in the wrong place, though. Fix it now! Talk to your lawyer about whether you can build the fence over your neighbour's paving, or whether you can remove the part of the paving that is on your land, or if you can take action against your neighbour to make them remove it. If the paving is part of the structure's foundations or support system, there will most likely be ramifications on you just removing it yourself.

          As far as the council is concerned, I doubt they'll have any interest in getting involved, unless once the fence is in the right place, the structure no longer meets council/planning rules - for example, if it is then too close to the boundary.

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            i like coffee on 10/04/2021 - 13:28

            +1

            @pjetson: My understanding of adverse possession (within Victoria) is that the clock does pass between owners.

            However the red section that is being trespassed upon was built on (by both the paving and footings of the structure) less than 1 year ago.

            My interpretation of the adverse possession rules is that the clock has since been restarted.

            The previous owner didn't make any claim to the land that they were trespassing upon and was not granted possession before they built.

            In terms of ownership, this appears quite straightforward to me. The new neighbour would need to be in possession of the land for 14 more years before they could make a claim (in Victoria). However I intend to take back the land much earlier than that.

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  rod1709 on 10/04/2021 - 10:12

  could you add a dotted line on the diagram showing the surveyed boundary line?

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    i like coffee on 10/04/2021 - 10:35

    +1

    The blue line, labelled boundary line is the surveyed line.

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      rod1709 on 10/04/2021 - 10:54

      +1

      thanks (i hadn't seen the very bottom of the diagram, off the screen)

      How wide is the gap at the rear boundary between surveyed line and misaligned fence line? It looks quite substantial. I'd be getting the fence rebuilt to proper boundary line pronto. personally, i wouldn't be too fussed if the footings underground encroached a few cms

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  SlickMick on 10/04/2021 - 11:15

  +1

  You assume a neighbours structure must be encroaching, but it's below ground level? Did they fix up the tiles okay? If so, what's the problem?
  Do you really want to be "that" guy just on principle?

  So many homes these days are attached to the neighbouring property. Fences are nearly always more on one side than the other, but we all just get along.

  If he'd asked your permission would you have said: that's no prob - go for it? (It would have been better if the conversation had happened for sure.)

  But your asking whether the structure was approved stinks of you just trying to be difficult, especially when the council has no issues with th structure, but you aren't letting it go.

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    i like coffee on 10/04/2021 - 11:50

    +1

    The problem, is that entire section highlighted in red is my land that the neighbour now wants to claim as their own.

    I've outlined what the problem is in other posts, but the main issue is that it's preventing me from building around this area.

    If the previous neighbour had asked for permission, that would be an entirely different scenario.
    If I had given consent to the previous neighbour building then there would be no possibility of an adverse possession claim.
    If I had been asked whether I was OK with the structure being built on the boundary, I would have made sure that there wasn't any encroachment onto my property as this would impact the future structures that I'm proposing to build in a renovation.

    I don't agree with your assumption that the council had no issues with it. I asked what was inspected as part of the investigation and the municipal building surveyor had said "only the height". They have done nothing to check the safety of the structure, the location to the boundary of the property or anything else for that matter.

    I'm not sure what you mean by "that guy" who is acting just on principle. This is more than just following correct procedure because it's the right thing to do.

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  Rayman011 on 10/04/2021 - 12:46

  Easy. If you have had the survey done, then just rip up the paving and put the fence back where it is suppose to be. What leg does the neighbour have to stand on? You are working on your own legal property.

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    i like coffee on 10/04/2021 - 12:53

    +1

    In Victoria, it's not as simple as that. In the old days, possession was 9/10 of the law and the legal system still reflects that in terms of adverse possession.

    The section highlighted in red is without doubt within my property boundary. The issue is that the neighbour is trespassing on this land. Similar to when someone trespasses in your home, you can't just remove the person by any means necessary. Often it's simple, the person knows they are in the wrong and could be in a lot of trouble if they don't leave on their own accord. However in some cases the person doesn't understand that they are in the wrong and want to fight to remain where they are. This is the scenario that I'm in which is why things could become messy.

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      Rayman011 on 10/04/2021 - 13:18

      As far as I can interpret the adverse possession rule, the land has been used for less than 15 years, so the neighbour has no right to it under that law. Look here. It explains it well. https://www.parliament.vic.gov.au/archive/lawreform/inquirie…

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        i like coffee on 10/04/2021 - 13:23

        +1

        That is my interpretation as well and the reason why I was pursuing the council to document that information.

        The red area that's being trespassed upon was built on (by the paving & footings of the structure) less than 1 year ago.

        No claim to the land had been made or granted prior to this, so the 15 year clock has since been restarted.

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          Rayman011 on 10/04/2021 - 13:33

          @i like coffee: So just go ahead with the works. Council looks like they aren't interested and won't enforce anything. There is nothing stopping you.

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            i like coffee on 10/04/2021 - 13:41

            +1

            @Rayman011: My understanding is that it's never as simple as 'just take back your land'.

            I need to make sure that the proper process is followed to eject the neighbour who is trespassing.

            I was hoping that this thread would attract the attention of a property lawyer or a council employee (from the building department) who may have knowledge on this process.

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              Rayman011 on 10/04/2021 - 13:43

              @i like coffee: I just believe that you are overthinking it. The neighbour has no rights and is bluffing. Call their bluff and get on with your life.

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    pjetson on 10/04/2021 - 12:55

    @Rayman011: The OP can probably also make the neighbour pay half of the cost of moving the fence to the right place. The OP needs to get legal advice.

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      i like coffee on 10/04/2021 - 13:04

      +1

      That's true, it's usually a 50/50 split for the cost of a fence, unless the fence being replaced doesn't actually need to be (like when developers replace for aesthetic reasons).

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  rod1709 on 10/04/2021 - 13:57

  +2

  stuff him, just go ahead with fence replacement even if you pay 100% because existing fence is adequate

  call his bluff, he is then forced to take action and he probably knows his position is weak and is just currently playing for time which strengthens his hand re adverse possession. very good chance he would just cave in, but anyway you are putting the onus back on him and you are in the right.

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    i like coffee on 10/04/2021 - 15:53

    +1

    We will be removing the fence when we renovate, so it seems like a lot of hassle to rebuild it in the correct position then knock it down.

    I thought it would be easier to claim back the land that is ours and remove the misaligned fence when we renovate.

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      rod1709 on 10/04/2021 - 16:19

      fair enough. as long as the reno is not years off. if you suspect his motives re adverse possession, the longer he uses your land the harder it becomes. maybe in the meantime send him a legal worded letter of your claim to land and intentions to relocate fence when you renovate etc etc so he can't claim any ignorance, with a copy to council, just to get something down in writing.

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  Pete10001 on 10/04/2021 - 18:05

  Unfortunately I think you will need to go the VCAT route. Councils often are less than enthusiastic to get involved in these sorts of disputes.

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    i like coffee on 10/04/2021 - 19:29

    +1

    I thought that councils love to issue a *'notice to comply', especially when they can threaten the owner with a fine.

    I've even received notices to comply for overhanging bushes that weren't even from my property.

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  Gnilgorf on 22/04/2021 - 16:25

  Phwaor, so just stumbled across this doozy of a post. Might be a bit late to the party and hopefully don't add any more confusion to this messy scenario as there was a lot of information to take in. Two items here, the first of which is the fence misalignment and secondary is the structure which potentially has part of its footings across the boundary line.

  For the first, adverse possessions triggers at 15 years, however it is up for debate whether the count resets if the property changes owners within that time frame. The current neighbour, could in theory prove that they and all previous owners of the site for the last 15 years had possession / made use of the disputed area, then it is possible that the claim could be granted. It would take considerable resources on their part in order to prove it though, as they would need to track down and contact all previous owners, collect declarations / evidence and build their case. Whether or not the neighbours are aware of the lengths required…

  And if the fence gets relocated during the reno, whilst they start their case…well…

  Not the most reliable source but found references to the above here

  For the second…actually I might leave this well enough alone until the first has some resolution. The neighbour could in theory, retroactively get permits for the structure, but the whole misaligned fence / boundary matter muddies this up somewhat.

  Hope all works out well, and that you and your neighbour can eventually look back on this and laugh.

  • 

    i like coffee on 22/04/2021 - 20:01

    Thank you for your response.

    Two items here, the first of which is the fence misalignment and secondary is the structure which potentially has part of its footings across the boundary line.

    The fence is labelled 'misaligned fence' and is a solid line with dashes.
    The structure that was built has footings that cross the boundary line and reach the misaligned fence.
    The area that is being trespassed upon is shaded in the diagram and labelled as paving (as this was laid on the surface).

    The current neighbour, could in theory prove that they and all previous owners of the site for the last 15 years had possession / made use of the disputed area, then it is possible that the claim could be granted.

    In my opinion it would be difficult to prove, as the fence was only replaced 5 years ago causing the misalignment (and trespassing).

    The neighbour could in theory, retroactively get permits for the structure, but the whole misaligned fence / boundary matter muddies this up somewhat.

    We have another issue where a building surveyor allowed a structure to be built 1m over the boundary line not complying with the permit conditions. VBA seem to take a long time to prosecute dodgey practitioners.

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  foolsgold on 22/04/2021 - 22:48

  I'm guessing for you to be under City of Melbourne and be able to have a structure built in a backyard, you must be in either North Melbourne or Kensington, where land areas are quite tight and at a premium.

  I've had the pleasure of seeing neighbours go at it, for 100mm of fence lines.

  To help,
  Firstly what is the issue with it? Is the structure encroaching, or is it just surface of a footing that is encroaching 200mm?
  Secondly, what is the structure, is it a shed, a bird cage, etc is it being used as a shed?
  Thirdly, what is the area of the structure, is this captured in your survey.
  Fourth, what is the material of the structure, particularly the wall on boundary, and any other wall which is perpendicular to your boundary within 900mm.
  Lasly, what is the height of the structure, if it has a sloping roof does your survey give you a datum, or RL at each height. You need a height of the structure above your Natural Ground Level, and your neighbours surrounding Natural Ground Level.

  Basically, I'm listing the five major points for you to nit pick this structure for compliance. Basically certain classes of structures, are exempt from a planning permit, if they are a certain, class, size, area, height, and material.

  I don't know you personally, and I'd be pissed off if someone deliberately, flagrantly built over their title. However if some one has just built a bunnings shed on boundary, on an inner city site, and the fence was not in position, and the only significant encroachment (100mm+) is a paving slab, then quit wasting your time. With the 1.5-2k you spent on the survey you could have paid some one airtasker to cut their slab.

  Alternatively, you could check, planning, and building compliance on each of those 5 items I mentioned against the Building Act. And if each or multiple of those items are non compliant, you will then need the expert opinion of a Building Surveyor to <b>determine</b> that your findings constitutes to be enough of a non compliance issue. The building surveyor will then need to assess what is a reasonable application of the building act, at the end of the day its their discretion and assessment which will lead them to issuing a non-compliance notice. If they still don't, you could file a complaint with the VBA…. sigh. I need more wine.

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  i like coffee on 23/04/2021 - 08:18

  Firstly what is the issue with it?

  We are planning to renovate and build on the boundary. This encroaching structure impacts on that.

  The structure is within 1m of the boundary (it's over the boundary) and too large to be classified as a class 10a structure, as it's 3m in height (and the limit is 2.4m). This height has been confirmed by the junior municipal building surveyor. Land surveys have measurements in AHD.

  I'm not sure how to describe the structure - it's steel beams and a sloped roof. The area is under 10m2. There are no walls.

  The encroachment is both the paving, slab & footing that's likely built into the slab. We didn't see the construction and there are no plans on record with council. However we can see the footing/slab on the misaligned fence boundary, so evidence of the encroachment is clear.

  Our first approach was to discuss the misalignment with the new neighbour and simply remove the encroachment, keeping the structure in its position. We plan to remove the fence when we renovate and build on the boundary, so there isn't much point in paying for it to be in the correct position before then. However the new neighbours plan to claim all land within the misaligned fence boundary. However the fence was only replaced 5 years ago, causing the misalignment, so proving 15 years of adverse possession would be difficult.

  The previous owner likely knew where the title boundary was as they managed to build straight on this boundary (as shown in the image).

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  kiitos on 28/04/2021 - 12:47

  If the above ground structure is on the boundary how does it impact your plan to also build on the boundary?

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    i like coffee on 06/05/2021 - 21:17

    The footing is over the boundary by a significant amount. Cutting the footing may impact the stability of the structure - we're unsure of how it was built as there are no plans or permit documented.

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  Thiefsie on 05/05/2021 - 10:44

  Not really seeing much of a problem here - move forward with your development (via council/building regulation process I assume) and you will have to ensure you don't undermine their (non-approved) structure/footing.
  If they are claiming adverse possession when you mow down the fence and reclaim your land back to title boundary, go through the legal process.
  You will need evidence of the age of the structures (professional reports), the existing conditions (survey), any other relevant information to be bundled up by an appropriate legal team. If you have a building or planning permit approval for your development proposal that will be helpful too.
  Ultimately it's whether the space is worth the cost (=time) to you,

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