A Newcastle woman who has been in a long-running battle to have a wall removed after it was built on her property without authorisation says she has been blindsided after the council decided to essentially revoke its own order to fix the situation.
Judy Tynan has spent four years and about $100,000 fighting to remove the wall, which was erected, without approval, by a previous owner/builder working on a neighbouring development at The Hill in 2019.
City of Newcastle issued two development control orders (DCO) threatening fines to the previous owners if they did not remove the wall. The former owners then took Ms Tynan to court seeking an easement for where the wall was built. However the easement remains unregistered.
The property then sold and the council issued another development control order to the new owners for the wall removal in early 2023.
But no penalties have been issued despite all three orders lapsing without the work being completed.
The council has now walked away from its own orders, claiming access to Ms Tynan's property is an unresolved issue preventing the matter from progressing.
This came as a complete surprise to Ms Tynan. She said she received an emailed letter from City of Newcastle at 5.03pm on a Friday in July that said "the DCO as drafted was questionable" and "it is considered that it is not in the public interest for CN to take further action on this matter".
The letter said an agreement was needed between the two owners about how access to Ms Tynan's property can be obtained, and without that, the order cannot be complied with, is "uncertain" and its "validity questionable".
Ms Tynan said she was "astonished" after reading the letter, especially as she sent an email to the council in April saying she would allow access to her property for the wall to be removed.
She requested "suitable notice, 10 days - 2 weeks alongside engineering plans describing the method of demolition".
The council's letter said it considered the DCO could be a "catalyst" for both owners to discuss the issues and resolve how the encroachment could be removed.
"However, this has not occurred and while you did give consent to the current owners of 20A Hillview Crescent, The Hill to enter your property to remove the encroachment, an agreement to the terms of that entry has not been reached between yourself and the owners of 20A Hillview Crescent, The Hill," the letter said.
"Council's offer for mediation was declined and the period for compliance with the DCO has lapsed."
Ms Tynan said she declined mediation as she did not believe she had anything to mediate over.
"The wall was bound to come down, according to council, and that was the only discussion point," she said.
"Mediations are give and take. There's nothing I gain from having a mediation discussion. My neighbours were told the wall has to come down and that's it."
Ms Tynan said she was also never told that mediation was a requirement for the wall to be removed.
"At no point was I required to do anything," she said. "The DCO did not suggest mediation."
In fact, the council had previously told Ms Tynan that it was the neighbours who requested the mediation, and the council's role was "only to assist in facilitating this meeting".
"We agreed to be in attendance," City of Newcastle said in an email to Ms Tynan in March.
"This meeting, we understand it to be, was to be a discussion to see if there was an agreed way forward for both parties.
"As mentioned, we agreed to assist with organising a meeting and to be in attendance. Your questions regarding the meeting itself you would need to ask the owners of 20A Hillview Crescent."
City of Newcastle told the Newcastle Herald it "cannot authorise another person to enter and remove a structure on another person's property, nor make it a requirement of the DCO that they obtain Ms Tynan's consent".
"A solution has been previously agreed to by Ms Tynan and the previous owners, under a Class 3 court proceeding in the Land and Environment Court," a council spokesperson said.
"Consent orders were issued in November 2021 which reached an agreement on several matters, including the creation of an easement to permit the encroaching structure to remain.
"With a solution available by the implementation of the court orders and the subsequent creation of the easement but with no agreed consent for access between the parties, it is not in rate payer's best interests for CN to allocate additional resources to further pursue this matter, when existing options are available for this to be resolved between the parties.
"CN recommends that the owners enter into discussions to seek a resolution for the removal of the encroachments or seek enforcement of the court orders issued in November 2021.
"CN actively works with parties to seek a resolution and in this case has investigated and engaged with parties since 2019. It is also CN's responsibility to give consideration to the extent of resource allocation and appropriate use of ratepayers' funding in line with the risk to the community."
Ms Tynan said she felt the council had "washed their hands" of the issue.
"I think the DCO is actually a bluff," she said. "They try to bluff the person into acting. But that hasn't happened so now they're not going to do anything.
"I'm obviously disappointed.
"I'm left to manage this on my own, and I did think that I had some measure of protection with council issuing DCOs.
"But if there's no enforcement, then people can do what they want.
"They've suggested that we work it out between ourselves. Well, what if we can't?"
The owner of the neighbouring property did not respond to requests for comment.
