NSW Neighbour's retaining wall for driveway collapsing

[Scooter74]

Hi all, we are in the process of building our house in NSW. There is a retaining wall between us and our neighbour which was build at least 40 years ago (without footings or core filling) to support their driveway. The retaining wall is collapsing and the fence is rotten. The damage was done well before we started building but they are claiming that our building has done the damage. I believe that they should be responsible for repairing the wall (and I will pay for half the fence) since they have altered the lay of the land to build the driveway.

Firstly, I don't believe they could claim that the damage was done by me and I have plenty of photos before, during and after construction to prove it so I'm not worried about that.

Secondly, I cannot find a reference which says that the person who alters the fall of the land is responsible for maintaining the wall (in NSW). I could find a reference for SA but not NSW. Does that law apply in NSW?

Could someone please point me in the direction of a reference or should I get a property lawyer involved?

Thanks.

 

[Harry De Elle]

First and foremost was a dilapidation survey done before construction commenced on your project? This would identify the existing condition of the adjoining neighbours asset and can be used in the event that if any resultant damage is being claimed as a consequence of your building works, then you are in a better position to argue your case. If no survey was done, secondly, I would speak to your neighbour and by mutual agreement appoint a structural engineer to report on the integrity of the wall (50/50 cost on engineers report).

After the report is issued your position may or may not be supported as to who is potentially liable.
The expert evidence will be relied upon by any CAT court to make a ruling.

 

[Scooter74]

Thanks Harry. We didn’t get a dilapidation report done (I didn’t even know they existed) but I do have plenty of photos from before we even bought the property showing the wall cracked and falling.

I will speak to the neighbour and try and get an engineers report done.

I guess that will at least say that the wall is unsuitable to put a fence on since it’s structurally unsound.

 

[Harry De Elle]

If he can be convinced by the photos that he does not have a valid argument the matter may be settled without and engineers report and further costs....

 

[Scooter74]

The question still remains as to who is required to fix or replace the wall? Am I required to contribute to the cost or is it his responsibility since he has obviously changed the lay of the land?

 

[Rod]

Most likely your neighbour is responsible for the full cost.

May cost you money to enforce your right.

 

[Scooter74]

How would I enforce it? I was thinking that under the dividing fences act I could ask for a fence to be put up. Since the wall is unsuitable to place a new fence on, he would then be obligated to fix or remove the wall.
Would that work? I just don’t want to wait around for years for the wall to be repaired with no fence and the potential for the wall to collapse or me being responsible for someone falling into our property.
Is a property lawyer the other way to go?

 

[Harry De Elle]

My experience is, If you fail to reach a mutual agreement then VCAT is your first port of call in the Building List Division.

Things may be expedited depending on the danger to life that any potential collapse may.

Contact the building department of your local council to discuss if they can assist in any way. If you raise the element of danger to life they might be more cooperative. Any temporary support structure should be considered precautionary in this instance too and your should turn your mind to it immediately.

VCAT will likely appoint an expert building assessor to make a report upon which the member will be guided by in making a decision on the merits of the case.

See VCAT fee schedule for an individual application .

Fees | VCAT these fees are generally not recoverable.

Make sure you prepare your arguments well and the remedy that you seek from the court.

Alternatively, if you can afford to retain a property solicitor let them run the matter.

Good Luck, look forward to hearing the outcome in a few months.

 

[Scooter74]

Thank you very much for your help. That's given me somewhere to start.

 

[Docupedia]

Except that the relevant property is in NSW and VCAT is Victorian, with no jurisdiction in NSW. You’ll need to look at whether NCAT has jurisdiction to consider this (and you can’t just apply VCAT reasoning, they are different in what they can consider).

Dividing fences and retaining walls are different animals covered under different acts. Fencing is fencing (oddly enough) while retaining walls are building work. In very simple terms, fences are don’t bear weight from a lateral position while retaining walls do. That means their function, creation , and importance are fundamentally different. Put in an overly simple analogy: Your fence falls down, your dog gets out. Your retaining wall falls down, your house collapses. Therefore arguments about responsibility, liability, and who pays, takes on a different character.