QLD Retaining wall and fencing enquiry

Discussion in 'Property Law Forum' started by Miss Lucy, 7 February 2019.

  1. Miss Lucy

    Miss Lucy Member

    7 February 2019
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    Hi, I'm new to the forum and looking for some advice in regards to retaining and fencing. We built a property in 2017 in an estate which is built on sloping land. Some time before we moved into the property there was heavy rain which washed soil from our property into our next door neighbours backyard. When we moved into the property we got retaining walls put in- a council approved large rock wall on the side of the house further away from our neighbour and on the side of the house closest to them we had a small wooden retaining wall (less than 1metre) installed running the length of our house where the slope (down to our next door neighbours) began and a wooden slipper garden edging that runs along the dividing fence. Both have got drainage and gravel- this was done on the advise of the chap that did the dividing fence. However about a month or so after there were strong rains again and some of the soil washed out from under the edging and into the neighbours property. However it is being prevented from falling by silt fencing that we had installed next to the fence when the problem first arose. We are unable to reach the soil that has fallen through from our side and our neighbour is no happy for us to go from their side to remove the soil. I am concerned because the soil that has fallen through is putting pressure onto that section of the fence and is causing it to lean towards our neighbours house.

    My question is:
    1) If in the future there is further strong rains/flooding and the fence is further pushed over/ falls down would I be liable for replacing the fence and would I be liable for any storm damage that their house may sustain? I just want to know where I stand with this as its been worrying me.
    2) am I legally responsible for repairing the damaged section of the fence
    3) are there any relevant laws/legislations that I need to be aware of in regards to the above situation.

    Any advice would be much appreciated. I am trying to contact the people did the retaining wall to see what can be done but would also like a legal perspective and be aware of my rights and responsibilities.
  2. Rob Legat - SBPL

    LawTap Verified

    16 February 2017
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    It's hard to picture exactly what you're talking about. However, in general terms, you're responsible for land slippage emanating from within your property. The point of sufficiently retaining your land is to reduce the risk of that happening (as well as underpinning your structures). It's about risk management - in the risk environment the only way to remove risk completely is to not be there at all.

    In terms of your questions:
    1. Check your insurance coverage here. Given your closest retaining wall is less than 1 metre in height, all Queensland Councils I know of don't require a building approval. However, it still needs to be built correctly - including its drainage. From what you've said, it appears that that is the case but yet you've still had what appears to be a significant amount of erosion. If the drainage in place isn't sufficient to cope, you might want to talk to someone about further options, such as a swale drain filled with rocks to channel water and sediment towards your stormwater inlets and away from the fence.

    2. Generally yes. However, if you've made reasonable attempts to do so and been refused the ability then its strongly arguable that any further damage caused is your neighbour's fault. I'd suggest having the request and refusal in clear written terms so that you can produce it to a court or tribunal (probably QCAT) if the need arises.

    3. You'll need to be aware of:
    - The dividing fences legislation: NEIGHBOURHOOD DISPUTES (DIVIDING FENCES AND TREES) ACT 2011
    - The Building Act in terms of requirements for retaining walls, earthworks and drainage: BUILDING ACT 1975
    - Your local Council's planning and development rules. These can get very complicated and differ from Council to Council. Get on their website and search for "stormwater", "plumbing and drainage", "lawful point of discharge", and "retaining walls".
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