It is not surprising given the hilly nature of Brisbane and surrounds that there are a number of retaining walls and issues arise between neighbours concerning them. This article addresses the quite common issue of a retaining wall on the boundary of two properties which appears to be bowing or showing signs of wear and tear such that it may likely to collapse or break causing obvious slipping of land especially from the upper level land. It is also quite common that the retaining walls are of wooden construction. In many cases, especially if they are less than 1 meter in height (not needing Council approval), they can be built with dubious construction or use of wood that inevitably suffers from wood rot.

It is fair and equitable for the neighbours to consider that they will share half the costs of the replacement of the retaining wall. However, it is often the case that one neighbour for reasons of their own consider that they are not liable, if they consider the retaining wall really was for the benefit of the other property and thus they assert that the neighbouring property should be fully liable for the cost of the replacement.

Who benefits?

The question is determined on a number of factors in particular whether there has been “cut and fill” situation i.e. where one side has cut the natural slope of the land to create a level platform in which to build a house and the neighbouring property may have filled their land to some extent to produce a level platform to construct a house. In those circumstances it can be easily said that the benefit is 50/50. The question arises though whether it can be shown that this was the case considering that often the work was done quite some time ago. If it is unclear then it would be important to seek legal advice to make some investigations in relation to that.

It can often be said that the question of benefit is not that clear cut. It also would be necessary to consider the actions of both neighbours in relation to the wall and its surrounds i.e. garden beds, trees and the like which can be said to contribute to the collapsing of dangerous retaining walls. There is also a matter of whether one party or the other was not made aware of the defects in the retaining wall: when that was done and what was done after that or not done to fix the problem.

Further, there is court authority to the effect that if the defective retaining wall was due to some defective construction work done by the previous owner whose whereabouts are now unknown or even it was done many years ago beyond what is called the statute of limitations period of 6 years, that it can be said that the contribution of the present neighbour is not wholly 100% liable for replacement of the retaining walls.

It can then be seen that the question of liability or who should pay what proportion of the cost of replacing the retaining wall is not straightforward and gives rise to what may be complex factual matters. It would be necessary for, again, legal advice to be sought in relation to the particular factual scenario applicable to the reason for the failure of the retaining wall.

We at RMO Law have extensive experience in relation to retaining wall disputes and will be able to give you helpful and experienced advice in relation to the potentially complex issues and seek to resolve that with the neighbouring owner.

📞 1800 999 529
🌐 rmolaw.com.au
📧 mail@rmolaw.com.au

This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.

Article Authorised by Roly O’Regan