Hi, we are in NSW and have a common side boundary wall, which is starting to rotate (fail). The wall supports a dividing fence. Our property is to the low side of the wall. Adjoining properties are c.80 years old (we have researched all old DA plans which give no indication of the original boundary wall construction).
At some point in the past, the neighbouring property constructed a concrete path and stairs along the side of their home, and used the common wall to support the path, with the outer edge of the concrete path actually sitting on top of the wall and in places extending to our side of the wall.
The concrete path appears to be contributing to the failure of the wall, and it is clear that the retaining wall (single skin of brick) was not intended to support the weight of such a heavy path.
The neighbours are due to commence a major renovation in around a month, and after trying fruitlessly to engage with them to replace the wall for the last 12 months since they put in their DA, they have finally come to us about 4 weeks before they plan to commence construction, agreeing that the wall needs replacing and asking us to pay 50% of the cost.
My questions please:
1. Given that the boundary wall has a dividing fence built upon it, is the wall treated as part of the fence under the NSW Dividing Fences Act 1991 (ie "includes (c) any foundation or support necessary for the support or maintenance of the fence")?
2. If the wall is considered by the Act to be part of the fence, I understand that the starting point is that cost contributions to repair the fence would be 50-50. Correct?
3. As the neighbour has used the boundary wall to support their path - it seems that (a) they are receiving a benefit from the wall that we are not; (b) the path is potentially contributing to the failure of the wall; and (c) the cost of repairing the wall will be higher than if their path wasn’t there, because builders will need to i. support the wall during construction, ii. work around the wall in a confined space, slowing the construction, iii. potentially build a stronger wall to handle the load of the path, and iv. carefully complete the top of the wall so as to ensure the path rests on top of it.
Taking all this into account, it seems that the path is contributing both the damage and additional costs of replacing the wall. Is it appropriate for them to pay a greater share of costs in this case, rather than the usual 50-50?
Many thanks for considering these questions.
At some point in the past, the neighbouring property constructed a concrete path and stairs along the side of their home, and used the common wall to support the path, with the outer edge of the concrete path actually sitting on top of the wall and in places extending to our side of the wall.
The concrete path appears to be contributing to the failure of the wall, and it is clear that the retaining wall (single skin of brick) was not intended to support the weight of such a heavy path.
The neighbours are due to commence a major renovation in around a month, and after trying fruitlessly to engage with them to replace the wall for the last 12 months since they put in their DA, they have finally come to us about 4 weeks before they plan to commence construction, agreeing that the wall needs replacing and asking us to pay 50% of the cost.
My questions please:
1. Given that the boundary wall has a dividing fence built upon it, is the wall treated as part of the fence under the NSW Dividing Fences Act 1991 (ie "includes (c) any foundation or support necessary for the support or maintenance of the fence")?
2. If the wall is considered by the Act to be part of the fence, I understand that the starting point is that cost contributions to repair the fence would be 50-50. Correct?
3. As the neighbour has used the boundary wall to support their path - it seems that (a) they are receiving a benefit from the wall that we are not; (b) the path is potentially contributing to the failure of the wall; and (c) the cost of repairing the wall will be higher than if their path wasn’t there, because builders will need to i. support the wall during construction, ii. work around the wall in a confined space, slowing the construction, iii. potentially build a stronger wall to handle the load of the path, and iv. carefully complete the top of the wall so as to ensure the path rests on top of it.
Taking all this into account, it seems that the path is contributing both the damage and additional costs of replacing the wall. Is it appropriate for them to pay a greater share of costs in this case, rather than the usual 50-50?
Many thanks for considering these questions.
