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NSW Who Should Pay for Retaining Wall Costs under Property Law?

Discussion in 'Property Law Forum' started by Joshwarby, 24 August 2015.

  1. Joshwarby

    Joshwarby Member

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    Hi guys,

    I'm currently in discussions with my rear neighbor on a required retaining wall to be built as part of a newly constructed fence. It is on a new development site, so no existing or previous fence has been installed.

    The situation is: The rear of our block has been cut back level for construction, therefore the fence line requires a retaining wall. Our rear neighbor has also cut back their back yard to level, however it still sits approximately 200mm above our ground level.

    They continue to inform me that I am to cover the entire cost of the retaining wall section of our agreed quote, as we are the ones that need it. I have to seek my own legal advice on this, and have been informed that it is the owner of the land that is being retained, or the beneficiary of the retaining wall; ie the owner with the higher ground, that is responsible the the cost.

    Just after any information or Act under Property Law that might confirm or deny this, so as to bring a resolve to our situation?

    As we have both cut our blocks back to our desired levels, I am more than willing to split the entire cost of both the dividing fence as well as the incorporated retaining wall section evenly at 50-50 for sake of neighbourly relations, but I seem to be up against a non-negotiable stand on this matter.

    Any help on this would be greatly appreciated.

    Thank you.
     
  2. Rod

    Rod Well-Known Member

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    Check with your local council. In Vic the law has been that whoever altered the contour of the land bears the cost of the retaining wall. So in Vic in your situation, you'd have to pay the full cost ( BTW the neighbours lowering their ground level a bit to be closer to yours just saves you money in this scenario).
     
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  3. Sophea

    Sophea Well-Known Member

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    Hi Joshwarby,
    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.

    If the wall is going to be constructed on the boundary line - forming part of the fence, there may be valid grounds to seek contribution. However, there is also the "law of support". In NSW, land has a right of support. Therefore it constitutes negligence to do anything in relation to land, including excavation that removes or interferes with the support to other land. The Conveyancing Act 1919 NSW creates a duty of care in this regard. As such someone whose land is damaged by the removal of any natural support to the land breaches their duty of care and may be sued for negligence. This includes actions which:
    • damage supported land
    • makes supported land and its structures unsafe
    • makes supported land unable to safely support any structures that may be erected on it in the foreseeable future.
    You can eliminate the duty of care by express agreement with your neighbour registering such an agreement as an easement for removal of support relating to that land, and it will generally be binding on subsequent owners of the land.

    As such, if their land is likely to be affected by excavations on your land, they can sue you for negligence if their property is damaged which may render you liable to pay for the wall. There are a number of arguments that may be advanced, but ultimately you will have to negotiate a resolution or fight it out in court.
     
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  4. Joshwarby

    Joshwarby Member

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    Thanks for your help!
    They have quoted that conveyancing act to me a few times.
    The only problem with it is that they themselves had firstly cut back their land before ours.
    It is only now that they have seen we have gone slightly lower than they have (as our land sits lower than theirs overall) that they are now claiming it is our responsibility and not theirs !
    Which is why we were hoping for a fair 50-50 split.
     
  5. Joshwarby

    Joshwarby Member

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    This applies even though they lowered their land first without us having any knowledge, then asking us the rush the fence build as they want it done now ? This being the only reason we pursued the option of lowering ours also ?!
     
  6. Rod

    Rod Well-Known Member

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    I don't know the intricacies of the law to be able to answer your question. As a third party bystander with no interest in either outcome, I'd still expect you to pay 100% regardless of when they lowered their level unless you had a prior agreement from them saying they will contribute.
     
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  7. Joshwarby

    Joshwarby Member

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    Thank you, I appreciate your unbiased opinion.
     
  8. Sophea

    Sophea Well-Known Member

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    Yes, even if they lowered their land first, (as I understand it) it wouldn't have posed a risk of undermining the support to your land, as it doesn't sound as if they took much off and it didn't go lower than your land. iIt is your cut back that has gone lower and is therefore at risk of causing subsidence to their land. So I agree with rod, I wouldn't be surprised if you ended up with 100% of the cost, though its worth negotiating with them of course for some contribution at least - on the basis that its required to support a dividing fence.
     

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