NSW Property Boundary and Retaining Wall Help?

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Nick Beasley

Member
23 July 2018
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Hi guys,

I am new to this forum and would like to receive any help possible with respect to Property Law.

My parents purchased a property which was an ex-demonstrator house completed approximately (5) years ago, however they have lived in the property for approximately 18 months. The property is rather elevated and the neighboring two storey property is on a level surface next door.

Both of these properties were ex-demonstrator and had a common pathway between the lots. When my parents and the neighbor settled on the blocks, the builder instructed both parties to erect a fence between the two.

Issue One :

Over the course of approximately 18 months of ownership, they had no issues. Until recently, they noticed joint expansions within the property. After further investigation, it turns out that the retaining wall had an issue, which was causing my parents' house to shift into the neighboring yard. After an investigation to the cause of the matter, it was determined that the plant roots had grown into the retaining wall which inevitably caused the shift.

From my understanding the property was still under guarantee when they lodged a formal complaint to the builder. Naturally the builder has denied the claim stating that it was my parents' responsibility to maintain the plant (roots). From this response, it now makes sense as to why the builder did not install the fence between the properties on the first place and merely passed on the risk.

Issue Two :

The neighbor has erected a fence between both properties without the authority of my parents.

Questions:

1. What legal standing do my parents have against the builder with respect to the retaining wall being built correctly?

2. Is it correct for the builder to assume that an incoming tenant maintain the roots of plants which the builder actually originally planted ?

3. Is main benefit of the retaining wall to my parents on the elevated property, or the neighboring tenant on the level property? If so, who's responsibility should it be.

4. Given the neighbor has now erected the fence, do they have to provide access or fix the retaining wall as it is on their side?

5. Does the neighbor have a right to install a fence and seek contribution without our authority?

6. Is it considered to be negligence for the builder to plant so close to the retaining wall, without maintaining them?


Any help or assistance towards these questions would be most appreciated.
 

James D. Ford - Solicitor

Well-Known Member
LawConnect (LawTap) Verified
Hi Nick

Without knowing all of the facts, please find below my initial responses to your questions.

This cannot be considered legal advice.

1. What legal standing do my parents have against the builder with respect to the retaining wall being built correctly?

Assuming the retaining wall is above a certain height - generally, an engineer is involved and approval is needed from the local council - I would investigate this and determine whether approval was required, whether it was granted, and whether the retaining wall has been built according to the approved plans...

It might be that your neighbours are the responsible parties if they have the benefit of the retaining wall they also assume the responsibility for its maintenance, damages caused, etc.

2. Is it correct for the builder to assume that an incoming tenant maintain the roots of plants which the builder actually originally planted ?

Generally speaking, plant roots would not normally affect a properly constructed retaining wall. Tree roots might, but then (that is foreseeable) and the builder/engineer would have a responsibility to take reasonable steps to alleviate this potential risk.

3. Is main benefit of the retaining wall to my parents on the elevated property, or the neighboring tenant on the level property? If so, whose responsibility should it be?

It would appear the benefit is with your parents' neighbours. It should be their responsibility.

4. Given the neighbour has now erected the fence, do they have to provide access or fix the retaining wall as it is on their side?

May need a legal letter... to place the neighbour on notice regarding their responsibilities. This should spur them into action to take action to fix the retaining wall/take up the matter with the builder.

5. Does the neighbour have a right to install a fence and seek contribution without our authority?

Normally, one month's notice via a statutory compliant fencing notice is required before a neighbour can request a 50% contribution.

6. Is it considered to be negligence for the builder to plant so close to the retaining wall, without maintaining them?

Could be.. depends on expert evidence about what a reasonable builder would do in the circumstances, and whether it was foreseeable that the plants would cause such an issue.

Kind regards,