NSW Property Law - Fences as Retaining Wall?

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8 March 2016

I have recently had a new dwelling erected next door to me, the existing house and granny flat at the rear of the yard were demolished to make way for the new house being built.

When the granny flat at the rear of the yard was demolished all the topsoil right up to the fence boundary was removed, along with all the pathways gardens etc all up 300-400mm of soil was removed. Due to the soil being removed the fence fell over in the next wind as the footings on one side of the fence were exposed.

I propped the colour bond fence back up using sleepers wedging it hard up against our clothesline and a shed at the rear of my yard. I contacted the new owners having the house built and requested he has soil delivered prior to the new house being built blocking access to his backyard. I also informed him of the damage done to the fence and that he was liable for its repair.

In the next 14 months, the rest of the fence along the boundary was also badly damaged due to the building works. I luckily took a lot of photos of the damage to the fence as the house progressed.

I asked the new owners to either repair the existing fence back to the same standard that it was in or replace the fence at their cost which they agreed to replace due to the extensive damage. When the fencer arrived and removed the existing fence he informed me that a retaining wall would be required due to the soil removal during the demolition.

When I mentioned this to the new owner he did an about face and told me it is not his responsibility to retain my land. After a heated discussion, it was agreed that timbers be placed under the fence to enable the new fence to be completed. (This was required as we have dogs). Once the fence had been erected I once again asked the owner when he would be replacing the soil that was removed, he blatantly lied and told me again he had not altered the lay of his land and that I had raised my land which I have not done.

I have photos of his yard prior to the soil being removed and can prove that they have altered the lay of the land but he refuses to look at the photos. I contacted the local council who put me onto the private certifier, I sent the photos to the certifier and asked that the soil be replaced or a proper retaining wall be built on his side of the fence.

After 3 weeks of deliberating the certifier has indicated that it is less than 600mm and does not require an engineering certificate and that he thought the pine sleepers were ok. He indicated that as the removal of the fill in the backyard was not on the DA he has no control over what happens at the rear of the yard. This doesn't sound right to me?

My issue now is that when the fence that is being used as a retaining wall starts to move and the sleepers start to buckle who is responsible for retaining my land.

I would prefer the soil be replaced or a retaining wall be built.

I have spoken to local council again and asked them who polices issues like this they have asked for an investigation but said it could take a few months and they were unsure what they could do.

Any help on where to turn next under Property Law would be much appreciated.



Hi Darksoul,

Land has a "right" of support in NSW and where someone takes away that support they can be liable in negligence for any damage that occurs.

The Conveyancing Act, s177 provides that a person owes a duty of care not to do anything on or in relation to land that removes the support to any other land, which would include altering the soil surface, the subsoil etc.

By virtue of this section a person who suffers damage caused by the removal of any natural soil support or structure that has replaced natural support may bring an action in negligence, that is, a breach of duty of care. This may occur when someone damages supported land, makes supported land and structures unsafe or makes supported land unable to safely support structures in the foreseeable future.

I would write your neighbour a letter setting out his obligations not to remove support to your land and advising him that he would be liable in negligence if something were to happen to your land and structures on it, and that you will be keeping a very close watch on it. Tell him to seek advice from his own lawyer in this regard. He can either half the cost of a retaining wall now, or pay much more in compensation to you in the future when your house starts cracking.