Peter My husband and I have a DA property which included a masonry wall on a…

Question

Hi Peter
My husband and I have a DA for our property which included a masonry wall on a
road (we have a corner block), which Council suggested. There are 3 elements to
this wall (although the same material is applied to all 3):
1. The existing retaining wall at a maximum of 1.05m
2. A new retaining wall to support the new backyard RL (which was approved) of
0.4m
3. A 1.8m fence
The drawings were flawed in that one page shows the existing retaining wall
(RW), new RW & fence all separate, but scales the existing RW and fence
incorrectly. Another page scales either the existing or new RW incorrectly, but
the fence is scaled correctly and the notation says "1.8m fence". A third page
notes and scales all 3 correctly.
All the errors were corrected in the CC version of the plans which was approved
by our PCA.
The wall/fence is built and the existing RW was found to have no footings and so
replaced, and there is currently a large masonry wall that slopes to a maximum
of

Leon · Accepted Answer

Good Evening
My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and
will do my best to assist you with your question.
What is your question?Good Morning
There is not allowance for error.
The wall has to be the height of the drawings. It cannot be higher.
What you have describes says that it should be 2.89m no higher.
On the corrected drawings what was the height? Did they amend the DA with then
corrected the drawings and was the height what you built the corrected
height?Good Morning
If the construction certificate pals are correct and they show the correct
height then you can rely on it.
You should reply to council and show them what the certificate says and advise
that you have complied with that.
In order to give you more detailed advise I would need to see the documents and
have a conference.
This would mean taking you on as clients and this would be at my hourly rate.
I can only give you guidance here based on what you say to me.
Generally the plans you put into council and have approved are what you have to
build.
If they have been amended, and you have a document that says clearly indicates
that the DA has been amended and then a CC issued based on the amended
Documents, then you are ok.
If not and there is a conflict between the DA and the CC you have to argue that
the CC is correct and as council has issued it you compiled.
But there has to be consistency between the 2 documents.
If you had a builder you should go back to him and have him respond to the
council. As laymen you should not be trying to reply.

Leon · Answer

Good Morning
There is not allowance for error.
The wall has to be the height of the drawings. It cannot be higher.
What you have describes says that it should be 2.89m no higher.
On the corrected drawings what was the height? Did they amend the DA with then
corrected the drawings and was the height what you built the corrected height?

Leon · Answer

Good Morning
If the construction certificate pals are correct and they show the correct
height then you can rely on it.
You should reply to council and show them what the certificate says and advise
that you have complied with that.
In order to give you more detailed advise I would need to see the documents and
have a conference.
This would mean taking you on as clients and this would be at my hourly rate.
I can only give you guidance here based on what you say to me.
Generally the plans you put into council and have approved are what you have to
build.
If they have been amended, and you have a document that says clearly indicates
that the DA has been amended and then a CC issued based on the amended
Documents, then you are ok.
If not and there is a conflict between the DA and the CC you have to argue that
the CC is correct and as council has issued it you compiled.
But there has to be consistency between the 2 documents.
If you had a builder you should go back to him and have him respond to the
council. As laymen you should not be trying to reply.

Leon · Answer

Good Morning
If the Private certifier approved them without councils approval to amend their
DA the Private certifier has not right to override the council
You have an issue of negligence here.
They had to go back to the council and seek to amend the DA and get approval to
make it higher.
If the DA showed 2.8 m height the council can request that height.
If the builder is prepared to give that evidence he has to provide law that
backs him up.
Council is not going to back down.
You have to work out what is going to be chapter for you. Fighting the notice
and having a hearing where the builder is your expert or making it lower.
But the builder and PCA here are the ones that have caused this and if they are
wrong you have a right to get compensation.
Ask the builder to give you evidence of where it says that the figured
dimensions take precedence.
What you have told me, does not sound correct. The DA is what was approved and
you said you were going to build. If it is not amended it is what you are to
build.
To change it you have to lodge a variation and get it varied and approved by
council.

Peter My husband and I have a DA property which included a masonry wall on a…

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