What has happened?
In Lane Cove Municipal Council v Wechsler [2026] NSWLEC 70, the Land and Environment Court ordered homeowners to demolish part of a masonry boundary wall, planter boxes and timber screen built without development consent. The Court rejected arguments that the Dividing Fences Act 1991 or the exempt development rules meant no consent was needed.
Context
The owners of a waterfront property in Northwood built a wall along the boundary with a neighbouring heritage-listed property, partly to block overlooking from the neighbour's boardwalk. The Council approved the lower part of the wall, which acted as a retaining wall, up to a "red line". The owners maintained that anything above that line was a dividing fence governed by the Dividing Fences Act.
The Court had previously refused development consent for the upper wall. The owners demolished it, then rebuilt it in 2023 with planter boxes and a screen on top. The Council brought enforcement proceedings.
The decision
Justice Duggan found that:
The Dividing Fences Act does not remove the need for consent. That Act deals with private disputes between neighbours about fences and their cost. The Environmental Planning and Assessment Act 1979 deals with the public control of development. Both apply.
The wall was not exempt development. Under the exempt development rules for fences, a fence cannot be built "along a common boundary of a lot that contains a heritage item". That exclusion applies even where the heritage-listed house is on a different part of the neighbour's lot, and "along" means parallel to and close to the boundary, not only on it. The wall also exceeded the height and masonry limits.
The Council was not estopped. Any earlier comments by Council officers about the Dividing Fences Act were statements about the law, and the owners had rebuilt the wall after the Council made its position clear.
The Court ordered demolition of the unapproved parts within 90 days. That order is suspended if the owners lodge a new development application within that time.
How will this affect you?
Agreement with a neighbour, or a notice under the Dividing Fences Act, is not a planning approval.
If the neighbouring lot contains a heritage item anywhere on it, a boundary fence is unlikely to be exempt development.
Rebuilding works after consent has been refused is very likely to result in a demolition order.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.