A Newcastle woman who had an unauthorised concrete wall built on her land and attached to her home has spent more than $80,000 trying to get the wall removed in a battle that remains unresolved four years later.
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Judy Tynan said the dispute began when a wall from a neighbouring residential development was built on her land and attached to her home at The Hill without approval in 2019.
She said the City of Newcastle failed to use its powers to punish the property owners, who didn't fix the problem and left the site an eyesore, with ongoing erosion from unauthorised excavation.
Ms Tynan said she had to move out of the home due to the stress of the situation.
"It's really wrong," Ms Tynan said. "This has sucked eight years off me from when the D/A was lodged."
The builder who completed the unauthorised work, Andrew Korlevic, also owned a share in the property at the time. He declined to comment when approached by the Newcastle Herald.
'Unapproved' works
The problem started after two semi-detached, three-storey dwellings were approved for the site at 20A Hillview Crescent in 2016.
In 2019 the council were told unapproved works had taken place, prompting the city to issue a stop work order.
Council officers inspected the site in February 2020 and found "a number of discrepancies" between what was built and what had been approved.
In May 2020, the council issued a development control order, requiring the owner to repair non-compliant work. It said the wall and a concrete slab on top of it were unauthorised.
The owners lodged a modification application the following month, which put compliance action from the development control order on hold.
Another development control order was issued on February 21, 2021. The order said the owners must remove any structures from Ms Tynan's property under the supervision of an engineer and provide advice on how the structures had impacted Ms Tynan's footings and garage, and whether her property had been undermined.
The council said it may elect to pursue a maximum penalty of $1 million and a further daily maximum penalty of $10,000 for each day the offence continues.
The order lapsed after a month but no fines were issued, with the council later saying a penalty infringement notice was "not the best response to take".
A few weeks after the order lapsed, Ms Tynan received a summons notice to the Land and Environment Court, with the owners wanting an easement for where they had built the wall.
Ms Tynan said after initially trying to fight this, she settled as she didn't have the money to pursue it. She spent $80,000 of her superannuation fighting the case. The owners were ordered to pay $31,000 of her costs.
The Land and Environment Court granted the easement, but ordered the neighbour to detach the concrete wall from Ms Tynan's home with a four-centimetre gap. They were also required to construct a drainage system and an impervious surface such as a concrete slab that fell towards the drain.
Development consent was required for the works to resume, but the ledge was detached and a drainage system built in 2022 without any development approval.
Ms Tynan said the wall also caused flooding in her garage, which continues to this day.
Council said the Land and Environment Court action meant the corrections order was revoked.
Change of ownership
The property has since sold.
Ms Tynan said she had sought answers from the council, but felt "stonewalled" by the lack of response and treated like she was the problem, while the previous owners had been able to move on without properly fixing the issue.
"No one seemed across the issues, and we were bounced from one department to another," she said.
"New personnel would arrive to the issue without adequate briefing inside the council, leaving it to me and others to fill in the blanks around the site problems, history and developments.
"I have had to resort to spending money on GIPA applications in order to have documents released to me."
Mr Korlevic co-owned the property with husband and wife Svetlana Kchevetskaia and Eugene Nalivaiko before selling it.
Ms Kchevetskaia acknowledged what Mr Korlevic did was "wrong". She said she and Mr Nalivaiko signed to the Land and Environment Court action "as the co-owners only".
Ms Kchevetskaia said she made a complaint to Fair Trade in August 2021 about "unprofessional conduct of the builder" but after sending all requested documents, she never heard back.
She said she and Mr Nalivaiko left Australia 18 months ago, and "did not get a cent of the land sale money".
"We have a lot of unresolved issues as well with the builder who did that to us," Ms Kchevetskaia said. "We lost everything and he possibly can get away with it."
Council hasn't acted swiftly enough ... how can you build a retaining wall on someone else's land?
- Councillor John Church
Ms Tynan says the saga has taken a considerable toll on her mental health, and questioned why the council did not enforce a punishment against the former owners.
"This was my job for a good 18 months-two years trying to figure it out," she said.
"I had no idea how council processes worked. You have to run with the process, keep all the emotions out of it, don't talk about the emotional toll, because no one wants to hear it."
Enforcement options 'not used'
Independent Ward 1 councillor John Church said he believed Ms Tynan had "been served very poorly" and that it was in the public interest to fine the builder when council had the power to.
"Council hasn't acted swiftly enough," he said. "It hasn't used its enforcement options.
"If we're not going to back our own DAs and insist people comply, why do we have any DAs?
"How can you build a retaining wall on someone else's land?"
Neighbours also raised issues with the lack of action against other non-compliances, including earthworks to make the building higher than what was approved.
"How many DCOs do you have to get?" one neighbour said.
"Would Judy be in this position now if council had acted?"
The Herald asked City of Newcastle why it did not issue a fine.
A spokesperson for the council said "there are various regulatory and enforcement options that can be pursued in response to breaches of the Environmental Planning and Assessment Act 1979".
"CN has and will continue to exercise its regulatory and enforcement powers throughout the investigation."
The spokesperson said the council was "seeking to remedy the non-compliant building works".
"CN is in regular contact with Ms Tynan to update her on the status of the investigation.
"Due to the continuing investigations, CN is unable to provide further comment."
Ms Tynan has not signed the easement to register it on title and a development control order has been issued to the new owner as the wall remains non-compliant.
The new owner did not wish to comment, other than to say they were "following the processes to build private residences".
"We weren't involved in the history of the site, but are looking forward to creating a great outcome here," they said.
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