Advice for Neighbours Affected by Development
The construction process inevitably results in disruption to adjoining property owners and occupiers such as noise, vibration and traffic impacts. If it is not managed properly other issues such as dust, mud, litter and damage to infrastructure can also occur.
During construction the primary obligation rests with the owner and developer of the land to ensure that impacts on adjoining properties are minimized. Requirements are regulated under various pieces of legislation, some of which Council does not control.
This page provides information for adjoining property owners that may be useful in understanding what is required of the owner and developer, your opportunity to be involved in the process, and what can be done if you feel the owner or developer is not fulfilling their requirements.
Disputes between neighbours regarding fencing and boundary issues are administered under the Fences Act. Council is not responsible for the administration of the Fences Act, and therefore has no authority in resolving fencing or boundary disputes between neighbours.
Please call the Legal Services Commission on 1300 366 424 or refer to Fences and the Law booklet available here or from Council offices.
A new development can unfortunately at times have a direct impact on adjoining properties. If you are concerned that development works undertaken are causing or may threaten damage to your property you should contact the owner of the land where the works are occurring and ensure that they are aware of your concerns. If you are not satisfied with the progress of your discussions in this regard you will need to gain independent legal advice in relation to your rights and any future action you may need to take. Further information on how to resolve these disputes can be found in the “Fences and the Law” booklet which is available here.
Construction taking place on a neighbouring property can include noisy activities which may affect adjoining properties. Construction noise is governed under the Local Nuisance and Litter Control Act 2016 - for further information please refer to this fact sheet.
Dust from building sites is governed by the Local Nuisance and Litter Control Act 2016. Whilst builders and developers have a responsibility to ensure that the amount of dust originating from a site is minimised by wetting down the soil and site during the demolition and construction process, there are occasions when this does not occur. For further information please refer to this fact sheet.
There are specific requirements for the method of removal and disposal of asbestos during development or demolition works. Legislation involving the removal of asbestos is administered by SafeWork SA not Council. More information is available on the SafeWork SA website.
This information sheet contains additional information about asbestos.
If your neighbour is relocating an existing driveway crossover they must remove and reinstate the old crossover to match the existing kerb profile, footpath and verge. They will require a permit to work on Council land to construct the new driveway crossover which must be constructed to Council specification. Please contact Council on 8522 9211 if you have any queries in relation to this type of work. You can also refer to our civil standards which includes the specifications for all types of driveways.
If the neighbouring development causes damage to the landscaping and infrastructure present on Council verges, the owner of the land will be required to make good any damage to Council property. If you witness damage to the Council verge area please contact us immediately on 8522 9211.
Some development may include excavation on or close to a boundary, which may affect the stability of adjoining land or buildings.
Section 60 of the Development Act requires the person undertaking the development to serve notice to the owner of the affected properties at least 28 days before building work is commenced. The party undertaking the work must take precautions to protect adjoining property and must, at the request of the owner of the affected land or premises, carry out such other building work to protect or strengthen the foundations of any building affected by the proposed building work.
A separate Development Application with all technical details and computations must be submitted to and approved by Council before commencing any work to strengthen or underpin foundations of any adjoining land or premises.
Before constructing or removing any fence or retaining wall on the boundary of an adjoining property(s), the relevant party is required under the Fences Act to give 30 days’ written notice to any adjoining owner(s) concerned.
Where a retaining wall is required, the owner who alters the natural lie of the land is responsible for providing a retaining wall. However, where both property owners alter the land, they are considered jointly responsible. The sharing of costs for the retaining is a civil matter that must be negotiated between neighbours.
Should only one property owner require a wall to be built on a boundary, the retaining wall itself must be entirely on one side with only the outside face of the wall on the boundary. Alternatively, if both neighbours share in the construction of the wall equally, the retaining wall should be built straddling the boundary. A retaining wall may be constructed in other locations on the property, however if you have any concerns, please contact the Legal Services Commission on 1300 366 424.
Sometimes, buildings and driveways are incorrectly built on a neighbour’s land. Where a structure is built over a boundary or overhangs the boundary, it is called Encroachment.
The identification of property boundaries is the responsibility of the landowner. Council does not employ a licensed surveyor and is unable to locate property boundaries or boundary pegs. Only a licensed land surveyor can lawfully determine where boundaries are located. Your Certificate of Title provides information on the parcel of land and shows the lengths of the boundaries but does not locate these out on site. It is important to note that a fence is not necessarily positioned on the boundary and should not be used to determine the boundary location.
Encroachment is a civil matter to be dealt with between the two property owners concerned. Further information on how to resolve these disputes can be found in the “Fences and the Law” booklet which is available here.
The South Australian Civil Courts have the power to order the removal of the structure, to order changes in the titles to the land, or to order compensation under the Encroachments Act 1944. Please note that because encroachments are a civil matter between the parties they usually do not involve Council. It is suggested that you consult a solicitor if you wish to take action in relation to an encroachment.
If a fence or other structure is built on Council owned land without the Council’s permission, you may be held liable for the costs of removal of that structure and could be liable for any damage or injury associated with the structure.
Stormwater not only creates a nuisance but it can also contribute to structural defects and create an unhealthy condition. Unless subject of a recent development application, where stormwater from a site is affecting neighbouring properties, it is a civil matter to be dealt with between the property owners.
Property owners should be aware that if the disposal of water from their site affects a building structurally, then they might be held liable for damages in the Civil courts.
Basically, the simple rules of water disposal should be followed:
- Discharge away from all buildings.
- Discharge away from all boundaries.
- Don't allow water to pond or create an unhealthy condition.
- Water must not flow across a footpath area or the verge.
- Provide a kerb or spoon drain where paving falls towards the boundary.
- Water shall be prevented from flowing back into the building.
The building Code of Australia (BCA2004) is the current legislation governing stormwater disposal. Refer to F1.1, Part 22.214.171.124 and AS/NZS3500.3.2.
The Town of Gawler requires that stormwater from all roofs, gutters, downpipes, paved areas and garden areas be drained to the street watertable through steel, concrete or class 12 PVC pipes or steel box sections located below the level of the footpath.
Council do not provide pipe covers, but Council will cut the kerb to accommodate pipes free of charge, however it is the owner's responsibility to reinstate the kerb once the works are complete. Contact Council on 8522 9211 to have the kerb cut.