VIC Should Council Pay Half?

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benny69

Active Member
6 March 2019
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0
31
Hi,

I hope the following isn't too long winded but I want to give all the facts I can.

Our property boarders Council land, namely a footpath then nature strip & road. On the boundary was a wooden retaining wall with a timber fence, all one construction. There was a gap of approx. 150mm between the footpath edge and the retaining wall that consisted of soil fill. There is also a Telstra pit in the footpath that abuts the retaining wall.

Some time ago (approx. 2.5 years) the Telstra pit had some repairs and hot mix bitumen was used. There was obviously excess bitumen as this was placed between the retaining wall and the footpath and compacted.

The retaining wall and fence have since collapsed, partly due to age, an overgrown Council sucker, the compaction of the hot mix in the gap and an over a zealous attempt by a tenant to straighten it. We have approached Council to go halves in the retaining wall (not the fence as Councils don't do that) but they have said no.

They claim that when the footpath was constructed in 1985/6 our land (we didn't own it then) had already been excavated and the retaining wall was there. They have provided a cross-section and plan that does show different heights but there is no mention of a retaining wall. There is a mention of old pickets. There is a large amount of fill under the footpath that Council claims was already there.

So I think you can work out my question, should Council pay half or is the burden all mine?

I am arguing that I should not have to retain the Telstra pit and the fill on Council land, no matter how it got there. They are arguing that they worked to existing surface height.

Any thoughts would be much appreciated.
 

Rod

Lawyer
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If they worked to existing surface heights the council is correct - they don't have to pay.

Certainly council is not responsible for remedial work undertaken by Telstra that contributed to pressure on the wall.
 

benny69

Active Member
6 March 2019
6
0
31
If they worked to existing surface heights the council is correct - they don't have to pay.

Certainly council is not responsible for remedial work undertaken by Telstra that contributed to pressure on the wall.

Thanks Rod.

My previous advice was that retaining walls were governed by the natural ground height. Is this not correct. I don't want to keep arguing with Council over a mute point.

I presumed that the fill height Council worked to would not be classed as natural ground. I'm thinking this fill was the result of the original dirt footpath and road reserve being built about 100 years ago. It is made up of several layers of slate and sandstone, laid methodically like brickwork with a layer of gravel compacted on top. All directly under the footpath. The Telstra pit is made up of random sized sandstone rocks now bonded with hot mix and this extends down through the fill to the natural ground. This tells me both parties require the retaining wall and there would be no way of telling which cam first, my excavation of Councils fill.

I enquired with another Council department regarding the Telstra pit and was assured that no work is undertaken on a Council asset including the footpath without the proper permits and consent, then Council must inspect and sign off its consent that the work was carried out according to relevant standards. In that case I would presume they are responsible for the pit.

Your thoughts?

Cheers,

Benny.
 

Rod

Lawyer
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Is this not correct.

No, it is correct.

Ask the Council for their appeals process if you believe the natural surface layer has been added to on the Council side.

In that case I would presume they are responsible for the pit.

No. Telstra would remain responsible. But proving their work caused the damage is difficult and you'd need to spend $1-3K on an engineer's report.
 

benny69

Active Member
6 March 2019
6
0
31
No, it is correct.

Ask the Council for their appeals process if you believe the natural surface layer has been added to on the Council side.



No. Telstra would remain responsible. But proving their work caused the damage is difficult and you'd need to spend $1-3K on an engineer's report.

Thanks again Rod.

We have a meeting on site with Council next week. Hopefully they will see the retaining wall benefits all concerned parties. If they don't come to the party I will ask about their appeals process as you suggest.
I will update the forum with how it all goes.

Cheers,

Benny.
 

benny69

Active Member
6 March 2019
6
0
31
Thanks again Rod.

We have a meeting on site with Council next week. Hopefully they will see the retaining wall benefits all concerned parties. If they don't come to the party I will ask about their appeals process as you suggest.
I will update the forum with how it all goes.

Cheers,

Benny.


The Council couldn't make the meeting last week, so we are meeting this week. The Council staff member I have been dealing with (coordinator of GIS & Asset Information) now has asked that the Senior Works coordinator also attends. Hopefully this means that they are now taking my request seriously as before this I have been fobbed off for several weeks.

Cheers,

Benny.
 

benny69

Active Member
6 March 2019
6
0
31
The Council couldn't make the meeting last week, so we are meeting this week. The Council staff member I have been dealing with (coordinator of GIS & Asset Information) now has asked that the Senior Works coordinator also attends. Hopefully this means that they are now taking my request seriously as before this I have been fobbed off for several weeks.

Cheers,

Benny.
 

benny69

Active Member
6 March 2019
6
0
31
Not sure if you monitor old threads Rod, but took your advice and asked about Councils appeals process regarding the above matter. They have now decided that they will meet us half way with the cost of the wall due to it being a unique situation.

Cheers,

Benny.
 

Rod

Lawyer
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27 May 2014
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:) Good job! and tks for the update.