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QLD Property Law - Contribution to the Cost of Retaining Wall?

Discussion in 'Property Law Forum' started by rps2016, 18 February 2016.

  1. rps2016

    rps2016 Active Member

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    Dear Law Answers,

    This question pertains to the obligations (in terms of cost) of retaining walls in Brisbane.

    We've bought a lot of land in Brisbane's south-east that we are now building on. Our side neighbour, who has already moved into his home (newly constructed) is on land that is almost 1.5 m lower than our pad height.

    There was a gradient (downwards) which used to begin approximately 3m on the inside of our boundary and finished 2m on the inside of his boundary. This is as is reflected on the contour survey we had completed on December 2014, prior to either of us commencing site works.

    In April last year, I noticed that his builder had completed site works. I noticed that:
    • the 'slope' on his side of the boundary was significantly reduced
    • the gradient of the slope on our side of the boundary appeared steeper
    • there were clear 'scratch' marks on the slope apparently from earth movers on the slope on our side of the boundary.

    The first interpretation of this is that our neighbour cut their land, such that the horizontal extent of the slope into his lot has significantly reduced. The second interpretation of this was that our neighbour also scraped away at the soil on our side of the boundary.

    Because I thought it unusual, I took a photo of the new slope between our properties in April when I noticed it. We have come to a stage in our build where we are considering a retaining wall on/close to that boundary.

    Regarding retaining wall costs, we have had some expert advice (which is no longer available to us) that the cost of any retaining is borne by the party that creates the need for retaining.

    While retaining our land on or close to that boundary is our choice, we believe we are due some compensation from our neighbour because the cost of retaining has been exacerbated by his builder demonstrably having cut at the slope and steepening the slope on our side.

    I've approached the neighbour about this (in person and over emails) and he washes his hands of any liability.

    Can I have some indication on whether property law supports our position?

    If so, what would be the best way to proceed?

    Thank you all for your help in advance.

    Sincerely,
     
  2. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi. R,

    You are correct, the party who changes the natural slope of the land is the party responsible for the cost of the retaining wall.

    The best way to proceed, in my opinion, is to have a lawyer send a Legal Letter with two quotes for the retaining wall attached, making clear that your neighbour (as the party who has changed the natural slope of the land) is legally responsible for the cost of the retaining wall, and to suggest that your neighbour seeks independent legal advice.

    You also need to provide your neighbour with the opportunity to submit an alternative quote for your consideration.

    Your lawyer can follow up with a "without prejudice" offer to pay for part of the retaining wall (maybe 50%), if your neighbour pays for the other part (say 50%) before the work commences. Whether you make an offer is at your discretion, as well as the percentage you offer to pay.

    If their response is only denial, and/or no response at all, the next step would be to offer that you both attend for free, the South East Queensland Dispute Resolution Centre, to attempt to resolve the matter amicably.

    After all of the above, you would discuss with your legal taking legal steps to enforce your neighbour's liability.

    Kind regards
     
    rps2016 and Rod like this.
  3. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    R, as an afterthought... do you plan on building a dividing fence?

    Please advise, as there is specific legislation, and a process that applies whereby you both share the costs of the fence. Do you plan to build the fence directly on top of the retaining wall?

    Kind regards
     
  4. rps2016

    rps2016 Active Member

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    Yes, we are planning on building a dividing fence - and we would like the fence to be directly on top of the wall.
     
  5. rps2016

    rps2016 Active Member

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    Hi James,

    Thank you for your detailed and carefully explained response. It's really helped us to know what course of action we can proceed with and also the resources available.

    One point that I need to add is that is that after building the retaining wall, we will fill up the lot on our side - effectively flattening our block completely. Had our neighbour not changed the slope of the land, and we still wanted to retain, obviously then all of the cost is ours (no question). But I see this as an issue that for us now to achieve the same result we will need to pay more because of our neighbours actions.

    Thank you again, James.

    Regards
     
  6. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi R

    Based on the fact that you plan on building a fence. You need to be aware of the process outlined in the Dividing Fences Act (QLD), and this legislation may also assist with the retaining wall... if the fence is directly on top of the retaining wall.

    I suggest you proceed to obtain quotes for the fence (including and excluding the retaining wall).. and please read the following self-help kit.

    https://caxton.org.au/pdfs/Dividing Fences kit 2013.pdf

    With regard to the unauthorised removal of soil from your block... my suggestion is to start by obtaining a quote, as to the cost to replace the soil back to the previous and original gradient of the land before the neighbour trespassed on your property and removed your soil. Once you have this quote we can discuss whether it is worth pursuing you neighbour for the costs of restitution of your land back to it's original state.

    The second part of the quote to fill above this level would be at your cost.

    I am here to assist you, if and when you need me.

    Kind regards
     
  7. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    With regard to the Dividing Fences Act - now called the Neighbourhood Disputes (Dividing Fences & Trees) Act 2011 and Retaining Walls... the Act might only be able to assist where a fence is supported by a Retaining Wall and needs to be repaired, which might occur at some later point, for you, if the fence is built on top of the Retaining Wall.

    "Retaining walls are excluded from the new Neighbourhood Disputes Act. Retaining walls and fences serve different purposes, and retaining walls are usually subject to special building and engineering requirements. However, QCAT does have some power to make orders about retaining walls where a fence otherwise cannot be repaired."
     

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