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NSW Retaining Walls NSW - Liable to Pay Half Under Dividing Fences Act?

Discussion in 'Property Law Forum' started by Denise Phillips, 8 March 2015.

  1. Denise Phillips

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    I live in Cordeaux Heights NSW, on a battle-axe block. The house was built in 1986 and the Duplex above our property to the left side of the back fencing line (about 9mts)had already filled in their back yard and supported the fill by putting rocks under the wooden fence line. This proved useless as all the water from rain fall etc would wash into our block, so they then put corrugated iron in front of their fence line to hold back the soil, the fence was only timber and now needs replacing. We are quite happy to pay half the costs of a new fence but they want us to also cover the cost of a retaining wall thats only purpose is to hold back the fill in their back yard. We have not changed the natural fall of the land on our side of the fence.

    Does the 2008 amendment to the Dividing Fences Act (sect 3c) mean that I am liable to pay half of the costs of the required retaining wall that supports their filled in back yard? I believe that I do not need to pay half the cost of the wall.
     
  2. winston wolf

    winston wolf Well-Known Member

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  3. Sophea

    Sophea Well-Known Member

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    Hi Denise,
    • Under the Dividing Fences Act an adjoining land holder can seek a contribution for the carrying out of work to a retaining wall where the wall is necessary for the support and maintenance of a dividing fence.
    • Mutual consent is required to build a retaining wall on property boundaries. In this situation, neighbours remain responsible for anything that may go wrong and for maintaining it.
    If the wall is going to be constructed on the boundary line - forming part of the fence. I would say they may have a chance at getting contribution from you. If it is well within their property and the fence is separate I would say you are only liable to share the cost of the fence, and any damage caused to the fence by soil pushing it or building up around it from their side - they will be liable for.
     
  4. Denise Phillips

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    The property in question put large rocks at the fence line then put soil over that , after I moved in my property any large amount of rain or watering caused flooding to my court yard. After I complained they put corrugated iron down in front of their fence line to support all the rocks and fill on their side of the fence, this is one half of a duplex and the other half put in a cemented retaining wall and when they wanted to replace the fence it was no problem and both the neighbours shared the cost of only the fence, as that duplex owner put in a secure retaining wall before filling in the back of their yard. Because the duplex's backyards are very small they have both filled up to the fence line to give a bigger back yard so they have used the boundary line for this reason. So at the moment there is no real retaining wall been put up, what is there has caused problems for the fence as it is leaning against it so this reason does not apply "where the wall is necessary for the support and maintenance of a dividing fence."
    As my understanding is whoever changes the natural lay of the land ( filling or excavating) are responsible for the retaining wall.
     
  5. Sophea

    Sophea Well-Known Member

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    Yes,
    In circumstances where they filled in their backyard with (altering the natural landscape), I would think they are responsible for building a structure to keep it there.
     
  6. Denise Phillips

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    Thanks Sophea , I believe so. We are also having to deal with a realtor as the property is now a rental, had to even go to council to get name of owner as the realtor wouldn't supply me with her name, so there's no co-operation happening they are only interested in me paying half of the whole bill.
     
  7. Denise Phillips

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