A Raymond Terrace pool privacy fence has cost a couple more than $100,000 in legal costs

IT started with a $4500 privacy fence in Raymond Terrace.

Telina Webb and Paul McEwan’s battle with Port Stephens Council over a fence has cost the couple more than $100,000 in legal bills and the council an undisclosed sum, estimated in the tens of thousands.

More than six years after it started the battle continues, with a NSW Civil and Administrative Tribunal decision pending over the council’s refusal to release documents linked to the lengthy fence development application process, including objections to the fence from two neighbours.

The couple is also determined to find out why the council told the tribunal that releasing the documents to them “may expose a person to a risk of harm or of serious harassment or serious intimidation”.

“We just don’t understand how it all went so wrong,” Ms Webb said after a tribunal hearing in March.

It started when Ms Webb and Mr McEwan bought a Raymond Terrace house on an odd-shaped block with neighbours on five sides. The property included a pool with a fence and gate that Port Stephens Council documents from 2004 show was non-complying.

In documents tendered to NSW Civil and Administrative Tribunal member Stephen Montgomery, Mr McEwan said he went to the council three times in 2009 and 2010 about building a complying pool fence after one neighbour objected to replacing a dividing fence behind the pool.

Mr McEwan told the tribunal that council’s front-of-counter staff three times agreed that a 2.1 metre high privacy screen within the dividing fence, and to an engineer’s specifications, would meet pool safety criteria.

“Council’s front-of-counter staff made it very clear that ‘this is not something council’s interested in’,” Mr McEwan wrote in a document to the tribunal.

By April, 2011 the council was interested after a neighbour complained and Mr McEwan was asked to submit a development application. Work ceased. By July, 2011 the DA was advertised and by October the council refused it, noting the couple could appeal to the NSW Land and Environment Court but failing to note the couple could request a council review.

Documents tendered to the tribunal hearing at Newcastle Courthouse show Mr McEwan and Ms Webb contacted councillors, and were advised by one councillor that the case would be considered by councillors at a council meeting. They also show that by November, 2011 Ms Webb’s and Mr McEwan’s requests for information from council staff, and emails showing similar privacy fences in Raymond Terrace of up to three metres, resulted in a letter from the then general manager Peter Gesling.

He advised Ms Webb and Mr McEwan the council would no longer receive complaints from them via phone or email, and advised all contact had to be in writing and addressed to him.

It all went downhill from there, Ms Webb and Mr McEwan said.

The tribunal heard evidence of how the matter was listed in the Land and Environment Court without ever being considered by council’s elected representatives.

It also heard the council published on its website, for more than six months, that information about objections to a privacy fence at the couple’s house could not be released because it “may expose a person to serious harm, harassment or intimidation”.

In the tribunal, under challenge from Ms Webb about the basis of the allegations, council executive officer Tony Wickham said the council did not have to verify whether comments in objections were true or not.

Mr Montgomery also questioned Mr Wickham.

“If somebody writes to you and says ‘If you release this information a, b and c will happen, if it’s released I’m going to be subjected to harm’, how do you know if it’s far-fetched without exploring the situation?” Mr Montgomery said.

Mr Wickham replied that one of the neighbours went to the council “in a quite distressed state”.

Ms Webb told the tribunal the allegations were serious and offensive to her and Mr McEwan.

“The council submission is that my husband and I represented some imminent risk, but surely if there was such a danger the council would have called the police. They didn’t. We just want to find out why this matter stayed with council staff and never went before councillors as we asked to happen.”

The tribunal is expected to deliver a decision in the near future.