QLD Who is Responsible for Retaining Wall?

[Sregor]

A new home has been built on the block neighbouring ours. Whilst originally cut level to our block, theirs has since been filled to sit slightly higher. As such, they have had to put a retaining wall between the properties and have built a fence on top of it.

We initially believed there would be dispute over the boundary as it seemed that they claimed more land than entitled to. Our house is new construction as well, barely a year old. Our original surveyor had marked the boundary and we left the markers in place knowing this neighbouring block would eventually be developed. The markers were removed when they did the cut, and I think just stuck back wherever they decided to put them.

My primary issue is that the property has been landscaped in the past week with turf having been laid. The sprinklers on their property are constantly running to keep the turf in order. I woke this morning to find the side of my property flooded as a result.

I don't believe they catered for any drainage with their retaining wall, unless the idea was that they would just let it run to ours. There are multiple points in the wall where there are significant gaps between the ground level and the first sleeper, and these have become flood points where the water/soil sludge from their yard is spilling into ours.

I've already contacted a surveyor to check the boundary since I believe this may be a significant factor in responsibility/outcomes.

Assuming that they have built the wall and fence on the boundary:

- Are we liable for shared costs in the build of and/or damage caused by either the fence or the retaining wall? Does it matter that we were never consulted in regards to builder, materials, length etc.?

- Who is responsible for a) corrections to the construction of the retaining wall and/or b) corrections to allow for proper runoff as my land is the only one affected?

- Is it safe to assume that because we weren't consulted, that this has been built on their land? If so, who bears responsibility for the damage that is now being caused to my property as a result?

- If they surveyor confirms that they have built the retaining and fence on our land (which is what we suspect) - does that make us liable for all of it? Can we bill them for partial costs on the re-survey? Can we simply pull the fence and retaining wall down?

- If it sits entirely on their land, do I have any recourse at all?

Prior to the development of this block, we were already aware that we would receive some runoff from the block behind us as it sits much higher than ours.

With the addition of runoff from the neighbour, any time it rains we'll be getting runoff from two properties and effectively just sitting in water from here on out. I hate to think of what that will do to my land/house over time.

I've tried contacting Council for guidance, but they simply tell me this is a civil matter and they won't get involved.

For what it's worth, we have never met, seen, or spoken to the owners. Council has disclosed that they live in NSW and this appears to have been built as an investment property (currently being rented). They could only provide a mailing address.

I can't imagine we'd contact the builder since the build is complete. We have no knowledge of who constructed the retaining wall/fence, and I don't think the real estate agent will have anything to offer.

This is my first time owning a home so my apologies if some of these questions make me seem oblivious.

 

[Sophea]

Usually neighbours must contribute equally to the cost of building and maintaining a dividing fence. However retaining walls are not dealt with in the same way as dividing fences under the law because they usually benefit one neighbour more than another, therefore equal contribution is unsuitable. Where however the retaining wall is required as a foundation or support for the dividing fence then it may include retaining walls within the definition of dividing fence.

Where that is not the case, (the wall is not required to support the dividing fence), the landowner who benefits from the retaining wall is responsible for the cost of installing it. Where there is a dispute over whether the retaining wall benefits one or both properties, the services of a registered geotechnical engineer and/or surveyor may be required to make an expert determination. In a recent case where a large retaining wall collapsed on the lower property (it was a very old retaining wall constructed in the 1920s I believe) both land owners were held to be liable for the rectification works in equal shares.

Having said that if you alter your land and it causes damage to a neighbouring property, you are liable for that damage.

The most cost effective and peaceful way of resolving these types of disputes is through direct negotiation with your neighbours. However if worse comes to worst QCAT can make orders about carrying out fencing work that includes work on a retaining wall if the repair of the fence is dependent on the work for the retaining wall.

 

[McAndrew Law]

Generally the neighbour that receives the benefit of the retaining wall will be responsible for it. You might find this guide useful: https://mcandrewlaw.com.au/retaining-wall-disputes/.