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WA Retaining Wall Damaged 10 Years Ago - Statute of Limitations?

Discussion in 'Property Law Forum' started by Andre, 22 March 2015.

  1. Andre

    Andre Active Member

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    I purchased a property 18months ago here in Perth. The property is on the high side of a hile, above neighbours and a ROW.
    The details are a bit convoluted but I can't attach diagrams, as this forum system requires them to be on the web.

    The northern border of my property is 12 metres long sloping down. The first 6 metres is a boundary shared with a right of way. The remaining 6 metres is shared with another residence. (ie The ROW leads into their driveway).
    The ROW is cut into the the ground leading down to the neighbours driveway and has probably always had a retaining wall there. However about 10-12 years ago, the neighbours cut the ROW deeper, and bitumenised it. The deep cut was to put a very large soakwell in the ground below their level, so as to prevent water running into their driveway. When they did this, the builder dug the ground well below the footings of a 1.5 metre retaining wall on my side (shared with the ROW), and left the concrete footings in the air, so the wall started to fall over. (so I am told my other neighbours). The dirt is exposed below the footings.
    In addition, there is some cracking on my bathroom floor, next to area retained by the failing wall.

    Unfortunately the part of the retaining wall damaged, is on the shared ROW section. The damaged only goes up to where the ROW ends and the neighbours property starts.So there is technically no neighbour requirement to share cost. However, ASSUMING I can prove the modification of the ROW damaged the retaining wall, I would like to recover costs for repair.
    1) My question, is there an applicable statute of limitations for any liability of the builder or neighbour?
    2) Who is legally responsible for the damage, the builder or the owner?
    3) Lastly, I don't think the current owner has been there 10 years, so do they inherit any legal responsibility with regard to the previous work done. (Please keep in mind, the work done was to the section on the ROW boundary, NOT a boundary I share with them.
    4) Under what laws could any potential action be brought.

    Any response would be greatly appreciated.
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Andre,

    I'm not too familiar with retaining walls, however, there are a number of questions on law answers regarding retaining walls and deterioration. Perhaps these threads may shed some light on your situation:
    Further resources (WA specific):
    Retaining walls are governed by the rules of the local authority (and not the Dividing Fences Act). Hence, it is best to contact your local council and enquire about what to do in your situation.

    Absent legislation in WA, an action for damage would be under general law action of nuisance (According to the SA Legal Services article: In Pantalone v Alaouie (1989) 18 NSWLR 119, Giles J considered the law of nuisance and found "withdrawal of support from land is an actionable nuisance for which strict liability attaches without proof of negligence.")

    The statute of limitations for nuisance action is governed by the Limitation Act 2005 (WA) which is 6 years from when the "cause of action accrued" (section 13), which could be when the damage started. But when the "date of action accrued" could be arguable, hence, it is best to speak with Legal Aid, or your community legal centre or a lawyer.
     
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  3. Andre

    Andre Active Member

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    Hi Sarah,
    Many thanks for that information.
    Yes, I had already read the other threads, one difference and complication of my context is that I was not the owner when the retaining wall was damaged and also that the other (excavated) side of the retaining wall is not owned by the person that caused the damage as it is a R.O.W, right of way. The actual owner of the ROW is most likely deceased and I acquired my property last year.
    Nevertheless, what you have said, I believe has settled the matter. The statute of limitations, being 6 years, then I would have no action under nuisance.

    With regard to the council, they seem apathetic. It is highly likely that the modification of the ROW was done with no permit. So it is illegal. However, I doubt if the council care and so it doesn't help my case. It looks like I have no choice but to replace the retaining wall myself. I have since gathered more information and judging by aerial photographs. It looks like the ROW was excavated between 2006 and 2008. That would put me just out of the 6 year limit.

    best regards and thanks again,
    Andre.
     
  4. Sarah J

    Sarah J Well-Known Member

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    Hi Andre,

    It is still worth consulting a lawyer about this. Although the statute of limitations is 6 years, it is from the "when the cause arose". You could make a case that the cause of action actually arose when damage started happening to your property as opposed to when the ROW was modified. This should give you a little more time.

    As for the passing of your property from the previous owner, unfortunately, my understanding is, unless you bring it up before completion, you take the land as is.

    However, if the structure was modified illegally, keep complaining to the council (lodge a formal complaint). The council should respond by sending them a formal letter requesting them to show that the modification was not illegal (i.e. approved by council) or to rectify the damage.
     
  5. Andre

    Andre Active Member

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    Thanks for that Sarah.
    I will pursue it with council. I have to lodge a FOI application to enquire as to when the modification was done and by what builder, to get an exact date. I've asked council to investigate the modification before and they did nothing. In fact, didn't reply to my formal request, said that someone had been on holidays etc. Not sure how to move them. They seem to be hands off. But I'll try the FOI. If there was a permit request then they should return the details of that. If not, then that should prove that it was done illegally and leave me some options.

    best regards,
    Andre.
     
  6. Sarah J

    Sarah J Well-Known Member

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    Hi Andre,

    Thanks for updating us on your next moves.

    If you are unhappy with the council's response (e.g. failure to investigate), you can perhaps contact the state ombudsman and enquire whether there is anything you can do or whether you may lodge a complaint against the council.
     
  7. Andre

    Andre Active Member

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    Thanks Sarah,
    I contacted the council yesterday and they seemed quite pro-active about it. Hopefully it wont have to be taken outside. I'll keep your recommendation in mind re: the ombudsman.

    regards,
    Andre.
     
  8. Sarah J

    Sarah J Well-Known Member

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    Hi Andre,

    Glad to hear the council is reacting. Sometimes it takes a few tries for the council to take your enquiry seriously. Thanks for updating us. Let us know our outcome if you get one soon!
     
  9. Andre

    Andre Active Member

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    Will do. Hopefully it won't be long before I have an answer.
     

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