QLD Retaining Wall Failing - Is Neighbour Responsible?

[Callum Weeks]

Hello and thanks for your time in advance.

Along a boundary I share with my neighbour there is a metre-high boulder retaining wall. The retaining wall itself is not the boundary as it has a 30cm wide flower bed atop that it is retaining, before the fence that lies along the boundary between mine and my neighbours property. So the retaining wall retains a section of land about 30cm wide on my property, as well as my neighbours block which is at the same level as my flower bed.

I have two fences which sit at right angles to the retaining wall and boundary fence, and run between these and walls of my house. Over the past year or so, these fences have started buckling in a way that is consistent with the retaining wall starting to fail. The palings of one of the fences appear to be being pushed over at an angle now, and the other fence is a pool security one and the gate within it now requires force to close (which is a real concern).

Is my neighbour partly or wholly responsible for the maintenance of this retaining wall?

Sincerely,
Callum

 

[@thelawbundle]

Hi Callum,

I think it might be easier if you can draft a diagram and attach that to your question somehow. Unfortunately it's not quite clear to me what's happening here.

Generally though, claiming for contributions to retaining walls in Queensland can be problematic. This is due to them being exempted from the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.

However, if you are seeking to claim a contribution from a neighbour for a damaged fence, that legislation can really help you.

There is a great free resource on the law surrounding dividing fences here: https://caxton.org.au/pdfs/Dividing Fences kit 2013.pdf

If it is the retaining wall that you are seeking a contribution for, the laws of private nuisance will likely apply. This means that your neighbour may be liable for 'nuisance' if they withdraw support from your wall somehow.

Whilst this is a South Australian resource, some useful principles will still apply in Queensland: Retaining Walls

Notably, you may need to consider an action in the Magistrates Court and you may require assistance from a community legal centre to do this. For a list of centres that might be able to help you draft the relevant application, see here: Queensland Association of Independent Legal Services

Best wishes,

Rhys