It is your and your neighbour’s responsibility to take no action that might undermine the support for the adjacent land. For instance, if excavation work is done on your property and harms your neighbour’s property, you may be negligent.
The Separating Fences Act does not pay the expense of constructing and repairing a retaining wall unless it is required to support and upkeep a dividing fence.
This article highlights the difficulties residential neighbours face in a disagreement over a retaining wall. Here, an effort is made to replicate the situation by offering suggestions for settling the dispute with your neighbour by hiring a retaining walls lawyer.
What are retaining walls?
The Neighbourhood Conflicts Act (Qld) does not define retaining walls (NDA). Instead, the phrase is described as a wall constructed to, for instance, hold back a pile of soil in the Macquarie dictionary. Before construction, retaining walls typically require engineering standards. According to the tribunals, unlike fences, retaining walls typically cannot be maintained, repaired, or replaced without the financial support of both bordering owners. One of the adjacent owners will typically profit more from a retaining wall than the other. To be clear, the NDA does not consider the retaining wall a fence.
What are the typical issues brought on by retaining wall disputes?
When a retaining wall is located on the shared property line between two contiguous owners, the argument over that wall typically escalates. In other words, on one of the owner’s properties, the retaining wall pulls the dirt back more than the other. The problem gets more complicated when one neighbour declines to fix their section of the retaining wall, which also serves as a fence separating the adjacent owners. Your retaining walls lawyer will help you with any further complications and queries.
Who shall make the payment?
Whether a retaining wall is required for the maintenance and upkeep of a dividing wall between the properties will affect the cost of constructing, repairing, or maintaining one. You ought to obtain a structural engineer’s unbiased report. You should get legal counsel as well.
You can bargain with the neighbour and request a contribution if you can demonstrate with proof that the wall is required to support and repair a dividing fence. If you and the other party cannot reach an agreement, you may try mediation at a Community Justice Centre (CJC) and submit a fencing notice.
Will a court issue a ruling regarding a retaining wall conflict?
The tribunal can generally mandate fencing work under section 35 of an NDA. According to this section, the tribunal could make orders regarding retaining structures as an add-on to a demand for fence work but not otherwise. A tribunal, like QCAT, may decide and order the completion of any further work required to complete the fencing work, including work for a concrete barrier.
Will you have any choices besides appearing before the tribunal?
It may occasionally, but not always, be possible for you to think about getting in touch with your neighbour to settle your retaining wall disagreement amicably. It is strongly advised to contact knowledgeable legal counsel regarding how you might want to approach a potential negotiation involving your neighbour. To preserve your rights and avoid jeopardising your case, do this. Before speaking with your neighbour, it is advisable to perform some research. This includes reviewing the permits for constructing a retaining wall and learning the pertinent details regarding the border designation of your property and that of your neighbours.
What if your attempt at negotiating with your neighbour is unsuccessful, and you decide against going to court?
Without involving attorneys, you and the neighbour can attend a free session on dispute resolution. There will be a third-party mediator in this. To ensure you are adequately prepared and informed, it is strongly advised to seek experienced legal advice before the conference.
