NSW Encroaching retaining wall - costs?

[Business Bob]

Hi All

Long time reader, first time poster.

I've recently purchased a block of land and am putting in a driveway (currently only has a dirt road).

I have a battleaxe block with an approximate 30 meter long retaining wall (ranging from 2 meters to 3.5 meters in height).

It is a stacked, dry stone wall that is rapidly deteriorated, and bowing and collapsing in sections.

The retaining wall in question benefits my neighbour and not myself.

It was built over 50 years ago (apparently, according to scuttlebutt). It is a dry stacked wall, was built by my neighbours parents and significantly encroaches upon our access handle.

In undertaking the survey work for the driveway (and in order to comply with councils consent on width) it has been found that this retaining wall encroaches my property an average of 50 cm, but up to 100cm (serious encroachment over that length).

My concern in building the driveway is that given the wall has no footings, and comprises of loose stones and rubbish (wood etc), any piering or work I'm doing along the retaining wall in order to adequately foot the driveway is likely to disturb the wall.

I need to put the driveway in to comply with Council consent for my Occupation Certificate, but due to the width of the encroachment won't be able to comply with Councils minimum width of the driveway in sections (and also - I am not wild having such a significant encroachment on my property!)

My neighbours don't appear to have much interest in repairing the wall, or contributing to any cost.

In summary my question is "Who is liable for this wall?"
(I'd like to ask some more questions if someone would like to provide paid advice - like what are my options in proceeding? Can I notify the neighbours that I am going to remove this illegal encroachment? (There is no easement for support on title - or easements of any kind on my title, nor does it appear to have been built with the previous owners consent - certainly not my consent). Am I liable for any damage I cause to their property by remedying this illegal encroachment? Is there any way to force me neighbours to pay?

etc etc etc

Many thanks
Bob

 

[Tripe]

Tricky situation

From my understanding, you can't do anything that effects the stability of a neighbor property, ie remove the structural support of a retaining wall that holds their land up, if you did do this, then it appears this would be an actionable nuisance.

Your neighbor has the right to peaceful enjoyment of his property

Any modification of a retaining wall needs council approval as it's an engineered structure that will need to comply to Australian standards, however there are different rules if the wall is less than 1m.

There seems to be legal precedent for the cost of maintaining retaining walls based on what benefits each party gets, for example if the wall allows your neighbour to have his land filled by 1 m, to level out his yard and you have a cut of 2 m's to allow a flat surface then cost would be awarded 1/3 to your neighbor and 2/3 to your self.


So in closing, you can't modify this retaining wall without conversation with your neighbor. Both you and your neighbor gained an advantage from converting a sloping surface to 2 flat surfaces, and this should be a basis to work out costs.

But then again, the retaining wall is not failing or in need of repair and you only want this wall to be modified for your sole benefit (so you can build a fully Compliment driveway) and there is no real benefit to your neighbor, so IMHO I can't see why your neighbor would have any liability to cover any of the costs to modify this retaining wall for your benefit

 

[Business Bob]

Hi Tripe - thanks for the reply.

A couple of clarrifications.

1. The wall IS failing and is in urgent need of repair or complete removal. Tree roots have pushed through the wall, parts of it have already collapsed, and its predominantly dry stacked sandstone, offcuts of timber trees, and other rubbish (bits of metal, etc);
2. The wall is encroaching on my land by over 1 meter (on average 80cms, and a maximum of 1.2m) for a length of 40 meters;
3. The "wall" is rubbish and rocks piled up (it certainly hasn't been engineered!!) No one would certify it in its original state, let alone current;
4. I have no benefit from this retaining wall - my ground has been built up nearly 1 meter (and I am retaining on my other neighbours side). I'd be happy if we all had to go to flat ground!;
5. Agree I can't undermine or damage a retaining wall thats on someones property, but this has been illegally built on mine, taking in total over 40 square metres of land (in Sydney! Which is like... huge!)
6. The height of the wall ranges from 0.5 meters at the rear to 3.2 meters in the middle, back to 1.5 meters at the front... (weird, I know).

cheers
Bob

 

[Tripe]

If the Wall is failing, then you should have a case to approach your neighbor to contribute to repair.

 

[Tripe]

If the footings of the retaining wall do not sit on the boundary, then they encroach onto your property.

In this situation Your neighbor may have certain rights under encroachment acts etc and there may be the legal possibility for them to apply for a boundary adjustment ?
And buy your section of land.

If i was you, i would get the boundaries surveyed properly, if you then have no joy discussing a financial solution with your neighbour, you may be better of just paying for a new retaining wall.


I know this is not what you want, but it may be better than losing part of your land.