Following on from our last article about dividing fence disputes, we will now explain what you need to know about retaining walls, especially where they are on or near your dividing fence line. We informed you in our last article that a retaining wall is not classified as a fence, and that the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (NDA) did not apply. Therefore, when a dispute arises in relation to a retaining wall, who is responsible and what course of action can be taken?
Unlike issues relating to dividing fences and trees where the rights and obligations of neighbours are clearly outlined in the NDA, disputes relating to retaining walls are determined through the use of case law. Therefore, to determine who is responsible for maintaining, repairing or replacing the retaining wall depends on the circumstances of each case.
Who is responsible?
A retaining wall generally benefits one neighbour more than the other and therefore, are not a matter of joint responsibility between neighbours. The responsibility for maintenance of the retaining wall falls with the owner whose land benefits from the retaining wall. This determination can be achieved by considering the purpose for the retaining wall or why the retaining wall was built in the first place. For example:
• If the wall was built to allow the property owner on the higher side to level out their land then it can be said that they are responsible for the retaining wall.
• If the wall was built to allow the lower property to engage in building works or something to that effect, then it can be said that the retaining wall is the responsibility of the property owner on the lower side.
• It can be deemed that both parties are responsible for the repair and maintenance of the retaining wall when both parties receive an equal benefit from the retaining wall.
There are limited circumstances when a retaining wall may be deemed to fall under the jurisdiction of the NDA. This arises when a fence is build atop a retaining wall and the repair of the fence is dependent upon the repair of the retaining wall. In addition, section 52(2) of the NDA outlines that, a land owner is responsible for ensuring that a tree on their land does not cause serious damage to another person’s land or any property on their land, or cause substantial or ongoing and unreasonable interference with a person’s use and enjoyment of their land. In that case, under the NDA, you are able to apply for an order from Queensland Civil and Administrative Appeals Tribunal (QCAT) concerning the removal or cutting back of the offending tree or trees.
Furthermore, when neighbouring trees from an adjoining property cause damage your property, or unreasonably and substantially interfere with your right to use and enjoyment of your land, the landowner with the interfering trees is liable for compensation under the legal claim called a private nuisance.
What to do when a dispute arises
If neighbours are unable to determine or agree on who is responsible for, or who benefits from the retaining wall, often a geological engineer or surveyor will be required to make this determination.
If a determination by a geological engineer or surveyor deems that you or your neighbour are responsible for maintaining, repairing or replacing the retaining wall and you or your neighbour dispute this, then you may need to contact a legal professional to assess your options.