if there is an existing retaining wall on the property boundary and the adjoining property owner excavates at the toe of the wall, causing the wall to rotate ( be damaged ) , do the provisions of the Building Act apply as regards adverse effect on adjacent buildings?
WA Is a retaining wall a building?
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I don't think you need to go that far. Section 79 of the Building Act 2011 (WA) (my added emphasis):
"79 . Certain work not to affect party walls etc. without consent, court order or other authority
(1) A person responsible for work must ensure that the work does not affect the structural, waterproofing, or noise insulation capacity of a party wall, a substantial dividing fence, or a boundary retaining wall that protects land beyond the boundaries of the works land —
(a) unless each owner of the land that shares the party wall or the dividing fence, or that is protected by the boundary retaining wall, consents to the work being done, and the work is done in accordance with the consent; or
(b) unless the work is done in accordance with an order under section 86(2)(d); or
(c) unless the work is required as a matter of urgency to prevent imminent collapse of, or damage to, the wall or fence; or
(d) except in prescribed circumstances.
Penalty: a fine of $25 000."
"79 . Certain work not to affect party walls etc. without consent, court order or other authority
(1) A person responsible for work must ensure that the work does not affect the structural, waterproofing, or noise insulation capacity of a party wall, a substantial dividing fence, or a boundary retaining wall that protects land beyond the boundaries of the works land —
(a) unless each owner of the land that shares the party wall or the dividing fence, or that is protected by the boundary retaining wall, consents to the work being done, and the work is done in accordance with the consent; or
(b) unless the work is done in accordance with an order under section 86(2)(d); or
(c) unless the work is required as a matter of urgency to prevent imminent collapse of, or damage to, the wall or fence; or
(d) except in prescribed circumstances.
Penalty: a fine of $25 000."
Thanks for your prompt reply.
If the excavation to the boundary retaining wall toe pre-date the Building Act 2011 ( it was done in 2009) , does the prevailing legislation at that time have similar provisions?
Probably, but you'd have to:
(a) Find that legislation;
(b) Prove that the excavation caused the issue; and
(c) Explain why it has taken 10 years to take action for it (and consider whether that lessens scope of your claim).
You'd also need to consider whether the any legislative limitations affect your right to take action.
(a) Find that legislation;
(b) Prove that the excavation caused the issue; and
(c) Explain why it has taken 10 years to take action for it (and consider whether that lessens scope of your claim).
You'd also need to consider whether the any legislative limitations affect your right to take action.