QLD Who is Responsible for Replacing the Retaining Wall?

[cassie2301]

Our neighbour has come to us asking we pay 100% of the cost to replace a retaining wall that is 70cm behind the boundary fence. We are willing to pay 50% of the cost as it benefits both parties as he cut the land and we also filled to level our yard. He has started pulling the retaining wall down already without our permission and is refusing to pay anything towards replacing the retaining wall.

Firstly is it our responsibility to pay 100%?

Secondly if he pulls the wall out completely and damage is done to the dividing fence and our property can we seek damage costs from him?

Thirdly what can we do to sort this issue out?

 

[Rod]

Firstly is it our responsibility to pay 100%?

No. He made alterations to his ground level so he is at least partly liable for the cost.

Secondly if he pulls the wall out completely and damage is done to the dividing fence and our property can we seek damage costs from him?

Yes. Though it may be a proportional split as you also built up your land.

Thirdly what can we do to sort this issue out?

Try mediation: Mediation | Your rights, crime and the law | Queensland Government or go to QCAT.

 

[cassie2301]

Ok so said neighbour today has pulled the retaining wall out! What should we do now?

 

[Rod]

Mediation as above.

 

[Rob Legat - SBPL]

There are other factors which may influence things. I'll assume that your respective ground levels are in accordance with local council requirements.

1. You have a right of support for your property. Your neighbour cannot dig a hole up to the boundary of your property that would cause your land to subside. The removal of a retaining wall could be seen the same way.

2. If the retaining wall is of sufficient dimensions to have required council approval, then removing it without the required permit may be an issue council can require them to rectify. It may also have been a condition of any approval to change ground levels.

 

[cassie2301]

There are other factors which may influence things. I'll assume that your respective ground levels are in accordance with local council requirements.

1. You have a right of support for your property. Your neighbour cannot dig a hole up to the boundary of your property that would cause your land to subside. The removal of a retaining wall could be seen the same way.

2. If the retaining wall is of sufficient dimensions to have required council approval, then removing it without the required permit may be an issue council can require them to rectify. It may also have been a condition of any approval to change ground levels.

Thank you for your reply Rob. Today our land started to slip and the back fence only just holding on as it is bolted into our side fence. What would you recommend we do now?

We are unsure what we can do legally to fix this situation. We have tried talking to him verbally and in letters but he will not come to any agreement with us.

Thank you again for your help.

 

[Rob Legat - SBPL]

Here's what I would do:

My first step would be to get someone who specialises in retaining walls to come out and see what can be done to stop further damage while you sort it out. Doing nothing may water down the neighbour's liability through failure to mitigate the damage. Make sure the person who comes has experience in retaining walls. Having a building licence will be of help. Let them know this may end up in court.

Get them to give you a report, with photos, as to the damage caused and their opinion of what caused it. That report, and the person who prepared it, must be available if the matter ends up in court. Make sure they're comfortable with that.

Ask them whether they think the wall requires/is a requirement of Council approval for the location (different Councils have different requirements). If so, alert Council as to the situation.

Take the report to the neighbour and try to sort it out with them. Having the report as evidence may help.

If they still don't want to fix the issue, retain a lawyer to make an application to court under section 179 of the Property Law Act ("Right of support of land and buildings").