NSW Retaining wall, dividing fence and trees - a trifecta of neighbour disputes

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21 October 2021
We have a dispute relating to a dividing fence between us and neighbours on the lower side. The neighbour wants to build a front fence perpendicular to the dividing fence and claims that the dividing fence is tilting so they can't build their front fence.

The neighbours claim the dividing fence is tilting due to the roots of the trees planted on our side of the fence and are demanding that we cut down our trees and replace sections of retaining wall between the property at our cost.

We have been the original property owners since the land was subdivided ~ 30 years ago. At the time the original owners of the neighbouring property excavated their land to level it but instead of building a retaining wall to support the fence, they excavated ~1M into our property to build a dividing fence at their lower level and the dividing fence (made of colourbond) was effectively acting as the retaining wall. We have not changed the slope of our land during this time. In our view, the fence is tilting because the previous owners changed their slope of the land and built a fence that did not have adequate retaining. While the Conveyancing Act property owner who has altered the slope of the land is responsible for the retaining wall, given this happened ~30 years ago I am unsure whether this would fall out of the limitation period in the Limitations Act.

I expected the reasonable approach would be to share 50/50 the costs of replacing a dividing fence with necessary retaining as per the Dividing Fences Act, but the neighbours are holding very strong that it is 100% our responsibility as they argue the damage is caused by the tree roots and are threatening legal action around personal injury and whatnot.

I'd appreiciate any thoughts on the strengths of either arguments and whether we should proactively take any actions or just wait for the neighbour to do something given they are the ones that are in a hurry.

Thank you.