By the time clients ask this question, neighborly relations have usually hit a sorry pass. The single best way to avoid expensive disputes is to check local Council rules before you build. Disputes can also often be diffused through direct conversation or the mediation services of the Community Justice Centre. When all else fails, however, the law attempts to protect the rights of both the renovator and the neighbour in a balanced way.
In legal terms, disputes tend to fall into one or more of four categories: dividing fences and boundaries; noise and pollution; land use; and nuisance. Life is rarely so tidy, however. If your neighbours claim that your new floor-to ceiling dining room windows violate their right to privacy, the dispute may involve several different issues.
Fences and Boundaries
Generally, adjoining land owners share the cost of building and maintaining a fence. Pre-approval by the Council may be necessary and keep in mind that Council regulations may be quite specific as to height, materials to be used, and so on.
A dispute about the position of the boundary between two blocks of land can usually be resolved by having a survey done by a licensed surveyor and sharing it with the adjoining owner. If something has been built that encroaches over the boundary, the Land and Environment Court may make orders about the encroachment requiring:
- the encroacher to pay compensation,
- transfer or lease of the affected land,
- grant of an easement, or
- removal of the encroaching part of the building.
Noise and Pollution
Noises, smells and dust are a predictable part of renovation. Renovators can avoid many disputes with good site management practices that include time restrictions on the use of power tools, (7am to 7pm is a good rule of thumb, with local and weekend variations). Other issues may arise with recycling, litter and sediment controls. Be particularly aware of the need for asbestos remediation in pre-1990 buildings and lead paint remediation in pre-1970 buildings.
Before any renovation that changes the use of land, renovators must generally apply for consent from the Council. Adjoining owners often have the opportunity to inspect plans and make objections if it appears that the building or development will affect their property. If the building is too tall, too close to a boundary, out of character for the neighbourhood or likely to block sunlight, the Council may disapprove. Working with the Council from the initial stages of planning is the best strategy.
This is a continuing activity or natural occurrence on a property that is unreasonable and preventable. An example might be excessive water runoff caused by re-grading. The objector, however, must show that the consequences are unreasonable. Renovators should monitor and attempt to remediate unintended consequences of this sort.
Savvy renovators know that preventative measures are much less painful than a cure. If it becomes necessary to consult with legal counsel, make sure to work with one who is familiar with local rules.
About Rolf Howard, Managing Partner, Owen Hodge Lawyers
Rolf is managing partner of Owen Hodge Lawyers. He has been in the legal practice since 1986 and a partner of Owen Hodge Lawyers since 1992. Rolf focuses on assisting clients to proactively manage legal responsibilities and opportunities to achieve competitive advantage.
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