Background
Robert and Katie Wechsler own a waterfront property at 113A Northwood Road, Northwood, NSW. In 2016 Lane Cove Municipal Council granted development consent (DA 137/2016) for various foreshore renewal works at the site. That consent did not authorise the construction of planter boxes, a masonry retaining wall, or a timber screen along the northern boundary of the property. The adjoining lot to the north—which shares that boundary—contains a heritage-listed dwelling (Item I304 under the Lane Cove Local Environmental Plan 2009) and has waterfront access via a narrow handle running along the shared boundary.
Between 2020 and 2022 a series of disputes arose after Mr Wechsler built a masonry wall along the northern boundary. The Council issued stop work orders and, after investigations, approved a 2021 modification to the original consent (the 2021 Modification) that regularised only that portion of the wall below a “Red Line” marked in photographs attached to the consent—being the section that functioned as a retaining wall for the adjoining batter. The Respondents appealed the Council’s refusal of further applications, and in February 2023 a Commissioner dismissed all three sets of proceedings. Despite that outcome, the Respondents reconstructed the masonry wall above the Red Line in June–August 2023 and added planter boxes and a timber screen on top (collectively, “the Wall”).
In August 2025 the Council commenced Class 4 civil enforcement proceedings under s 9.45 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act), seeking declarations that the Respondents had breached s 4.2 of that Act by carrying out the Wall without development consent, and orders requiring demolition and compliance.
The Court’s Holding
Duggan J held that development consent was required for the Wall and had not been obtained. On the first issue, the Court rejected the Respondents’ argument that the Dividing Fences Act 1991 (NSW) (DF Act) removes any requirement to obtain development consent. The DF Act deals with the private law relationship between adjoining landowners—cost apportionment and dispute resolution—while the EP&A Act operates in the domain of public law development control. The two statutes are compatible and deal with different aspects of the same fence; the DF Act neither expressly nor by implied repeal overrides the EP&A Act’s consent requirement.
The Court also rejected the Respondents’ argument that the Wall was exempt development under Subdivision 17 of Pt 2 Div 1 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP 2008). Clause 2.33(a) excludes from the exempt-development pathway any fence constructed “on a lot, or along a common boundary of a lot, that contains a heritage item.” Duggan J construed “contains” as referring to the whole of the lot on which the heritage item is situated (not merely the part of that lot on which the item physically stands), and “along” as meaning adjacent to, or parallel to and in proximity with, the common boundary of that lot. As the Wall ran parallel to and in close proximity to the common boundary with the heritage-listed lot, the exemption was unavailable. The Court further noted that, even had the Wall qualified as specified development under cl 2.33, it would still have failed the development standards in cl 2.34 because its physical dimensions exceeded the permissible heights for masonry fencing.
On whether consent had been obtained, the Court found that neither the 2016 Consent nor the 2021 Modification authorised the Wall above the Red Line. The 2021 Modification’s conditions and plans were expressly limited to works below the Red Line; annotations marking the area above as “subject to NSW Dividing Fences Act” signalled exclusion from the consent, not inclusion. The Court also dismissed the presumption of regularity argument: that presumption cannot apply where the works above the Red Line were expressly excluded from the modification application and the Council was never asked to assess them.
Key Takeaways
- The Dividing Fences Act 1991 (NSW) does not displace the requirement to obtain development consent under the EP&A Act; the two statutes operate concurrently and are not inconsistent.
- The exempt-development fence pathway in SEPP 2008 cl 2.33(a) is excluded wherever a fence is constructed along a common boundary with any lot that contains a heritage item anywhere on it—not merely adjacent to the part of that lot where the heritage item physically stands.
- A development consent modification limited by express words (here, a Red Line in attached photographs) cannot be construed as implicitly approving works that the applicant deliberately excluded from the modification application; the presumption of regularity does not fill that gap.
- Notations on approved plans marking works as “subject to the Dividing Fences Act” signal those works are outside the consent, not that they are approved under it.
Why It Matters
This decision clarifies a significant point of potential confusion for landowners and practitioners in New South Wales: invoking the Dividing Fences Act dispute process provides no exemption from the EP&A Act’s development consent regime. Owners who construct boundary structures under the DF Act while believing they need no planning approval do so at their own risk if the EP&A Act would otherwise require consent. The judgment also gives authoritative guidance on the reach of the SEPP 2008 heritage-proximity exclusion, confirming that the “lot containing a heritage item” must be treated as a whole for the purposes of cl 2.33(a).
More broadly, the case is a reminder that the scope of a development consent modification is strictly bounded by what the applicant actually sought. Structures excluded from an application because they were said to fall under a different legislative regime cannot later be treated as approved development by inference or by invoking the presumption of regularity.