NSW Retaining Wall and Fences - Should We Share the Costs?

[Shamil]

Hi,
The slab of my house had just been poured whereas the house on the next lot is already built. As the land has a natural slope, my lot had to be excavated. Therefore it requires a retaining wall of approx 900 mm high, and visible on my side. The fences will be built on the top of this retaining wall.

How does the sharing of costs under property law work in this case? Should the cost of the wall and the fences be shared with my next door neighbour?

Thanks.

 

[Sarah J]

Hi Shamil,

Have a read of the following threads:

• Neighbouring fences and retaining walls
• Retaining walls - High side
• What to do with deteriorating retaining wall
• Retaining walls and fences collapsed - whose responsibility

It appears from the threads that contribution liability for retaining walls are different from that for dividing fences. The cost for dividing fences are shared equally between adjourning parties. However, the cost of a retaining wall depends on whoever first altered the contours of the soil level for development.

However, under section 3 (definition of "fence"), 6 and 7 (general contribution liabilities) of the Dividing Fences Act 1991 (NSW) you can seek contribution for costs from the other party if the retaining wall is necessary for the support and maintenance of a dividing fence. This is an exception to the general principles surrounding retaining walls as retaining walls that are necessary to support a dividing fence are considered part of a dividing fence and hence, fall under the DFA.

 

[Shamil]

Thanks Sarah. I've also found that the neighbour has filled it. Are there any independent assessors who can determine the share based on the cut and fill?

 

[Sarah J]

Hi Shamil,

A surveyor should be able to help. If you want recommendations for surveyors or further help, your local council may be a good place to start.