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NSW Should Neighbour Share Retaining Wall Costs?

Discussion in 'Property Law Forum' started by suzelg, 4 July 2016.

  1. suzelg

    suzelg Member

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    I’m currently in discussions with my rear neighbour about replacing our fence and the retaining wall it stands on.

    This neighbour's property sits higher than us based on the slope of the street/land and for the past few years, the retaining wall has been breaking away and subsequently damaging the fence. The 2 main reasons for this damage is that they had a very large gum tree on their property right on the fence line and the fact that they are using the colourbond fence as retaining wall to hold up their yard, rather than a solid retaining wall in their yard.

    My husband and I worked with them to remove the gum tree which was on their property and paid half for the removal. This was over a year ago. We agreed not replace the retaining wall and fence straight away due to the possibility that we were looking to either renovate or extend or knockdown and rebuild.

    We ended up knocking down and rebuilding and are getting close to completion. We recently approached them re the fence and retaining wall and presented them with our quotes,, etc.... This did not go very well! While they seemed willing to contribute to the fence, they appear not keen to contribute to the retaining wall. Without a stable retaining wall, we can not keep their yard from coming into ours and we also cannot replace the fence.

    I would like to know where I stand under property law and what possible rights I have given that it’s their tree and yard which has been destroying the retaining wall for all these years! Is it their responsibility to retain their land?
     
    T.M FLINDERS likes this.
  2. Rod

    Rod Well-Known Member

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    It is the responsibility of the owners of the land that altered the natural contour of the land. This can be difficult to prove if land has had multiple owners. You may need to ask the council and look for original plans that show who altered the land.
     
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  3. Victoria S

    Victoria S Well-Known Member

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    Hi,

    I agree that the obligation to construct a retaining wall in the first place, falls on the person that changed the normal fall of the land as s177 of the NSW Conveyancing Act, creates a duty of care for landholders to refrain from doing anything on or in relation to land that removes the support to another piece of land. If that duty of care is breached by someone, the affected landholder has grounds to bring an action in negligence, claiming damages caused by the interference with the natural land or a structure supporting the natural land.

    However, under the Dividing Fences Act 1991, section 3, an adjoining owner 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. So you may be able to seek contribution from them under this section, but you may need to provide expert proof that the fence requires a proper retaining wall to support it.
     
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