# Forum Home Renovation Retaining Walls  Who is responsible for retaining wall?

## john777

Hi,
Just need some advice on who is responsible for repairing a collapsing retaining wall which sits between us and our next door neighbours rented house. (have not chased down the owner yet). 
The current setup is as follows: 
1. The side boundary is between 2 old Victorian terrace houses 
2. The side boundary is between 2 double brick walls with a 20mm gap that runs from the front of the property to the rear where we find the collapsed retaining wall. 
3. Our propertys are on a gentle slope with our neighbours  backyard ground level approx. 1m higher up 
4. The retaining wall has partially collapsed and consists of 1 metre high x approx. 10m long single line of mortared brickwork. 
This brickwork is also connected to main side wall of our neighbours house.  
5. The retaining wall brickwork sits entirely on my neighbours property (also confirmed by a recent survey) and has 1.5m high timber paling fence directly above the brickwork with supporting posts (approx. 65mm square hollow posts) that are cemented in on our property. 
The question is are we both responsible for repair of this retaining wall or just my neighbour seeing that the retaining wall is on their property?......the paling fence is in good condition
cheers  :Doh:

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## commodorenut

I think the best place to start is your council's website.   
While there are accepted norms (ie, for new walls he who cuts/fills is responsible) this one has obviously been there a long time, and different states & councils can have variances in their rulings. 
My money is on them having to fix it, but I'm not a lawyer versed in your council's rules.

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## autogenous

:Wat they said:  
Don't go in with a "Its their fault attitude" or it will cost you more than a retaining wall.

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## Bloss

"whs: "5. The retaining wall brickwork sits entirely on my neighbours property (also confirmed by a recent survey) and has 1.5m high timber paling fence directly above the brickwork with supporting posts (approx. 65mm square hollow posts) that are cemented in on our property." 
If the wall is on their property then they have to fix it at their cost (ditto the fence - share if on block line borderline), but as has been said, best to stay friendly with neighbours if you possibly can. Any damage on your side because of any failure of the wall would be theirs too. But - if the collapse is simply aesthetic ie: no damage to your property has been caused or you juts don't like the look of it, not so simple. Talk to them first.

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## Marc

> "whs: "5. The retaining wall brickwork sits entirely on my neighbours property (also confirmed by a recent survey) and has 1.5m high timber paling fence directly above the brickwork with supporting posts (approx. 65mm square hollow posts) that are cemented in on our property." 
> If the wall is on their property then they have to fix it at their cost (ditto the fence - share if on block line borderline), but as has been said, best to stay friendly with neighbours if you possibly can. Any damage on your side because of any failure of the wall would be theirs too. But - if the collapse is simply aesthetic ie: no damage to your property has been caused or you juts don't like the look of it, not so simple. Talk to them first.

  This is incorrect information.
The ownership of a retaining wall that sits on a boundary is with the person that created the need for it.
In other words whoever made the original cut to level the backyard and so created the need for a retaining wall or conversely, whoever filled in and needed a wall to contain the fill.
This ownership goes with the property and does not matter if it happened 100 years ago.
If both backyard were originaly sloping and the next door neighbour decided it wanted it leveled and put in a retaining wall and filled it in, the wall is his.
If your side builder leveld the backyard by cutting down and created a step, you own the wall, regardless of placement. 
Of course if the retaining wall is way inside the neighbours property you have nothing to do with it, but from your description that is not the case. 
The fact that it is inside the other property MIGHT indicate that it was build to contain a fill to level next door.
Or not.
Retaining walls are not fences and as proof of that, call your insurance company and say you want to claim half the cost of the retaining wall as if it was a fence and they will tell you what I said. 
The fence, regardless of placement, is a shared improovement and must be repaired or repalced and cost shared 
It would be interesting to see what happens if a retaining wall is built on the boundary half each side and one side was dug in and the other side filled in.
You can try to bluff your way out of it and call your neighbour and ask them to claim it on their insurance becasue it is inside their land.
You will soon find out who owns the wall.

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## Vball

Is there legislation which supports your view Marc as I was of the same opinion as you.

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## dabbler

> Is there legislation which supports your view Marc as I was of the same opinion as you.

  Qld legislation on things that affect boundaries and things built or growing on and near boundaries is in the process of changing. It mainly revolves around boundary fencing and trees but this new legislation means many "minor" things will eventually be handled by handled by QCAT (?). I don't know if the legislation has been signed into law yet but it must be close. 
Either way, in most if not all cases, it will be a state matter not a council one (although local council may give you a starting point). There are lots of web sites that give some info but you need to make sure it's current and relevant to your state. 
My own experience from about 4 years ago, offered by paid but informal advice from a solicitor (formal costs more), was that Qld viewed a retaining wall with a dividing fence built on it as jointly owned and the responsibility of both parties. This was for a wall and fence on the boundary though. 
Just how the changes affect walls I don't actually know but the new legislation is intended to protect each party from personal injury and property damage caused by things on neighbouring properties. The legislation it replaces was geared towards access and separation not protecting things. This is how I've interpreted the Qld laws but I'm no lawyer.
dabbler (usually haunting the woodwork forum) 
I've just checked the website and Qld's  new act became effective 1st Nov 2011. Here's the official website link. http://www.justice.qld.gov.au/corpor...tion-act-2011/
The small bit in the FAQ about retaining walls says much the same as Marc has already said. ie fences and walls serve different purposes but it also states that QCAT can still make rulings in some cases. So maybe no two cases are alike enough for a set ruling.

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## Marc

> Is there legislation which supports your view Marc as I was of the same opinion as you.

  RETAINING WALLS
A retaining wall is a structure that supports excavated or filled earth on
a property. As mentioned, the Dividing Fences Act does not currently
cover retaining walls. This means that it is important to establish
whether a structure is a dividing fence or a retaining wall, as disputes
over retaining walls are heard in the Supreme Court, not the Local
Court (where dividing fence matters are dealt with). An important case
dealing with the distinction is Kontikis v Schreiner (1989) 16 NSWLR 706.
A retaining wall that is positioned on a boundary is called a common
party wall.
Note: The Dividing Fences and Other Legislation Amendment Bill
2008, currently before NSW Parliament would, if passed extend the
jurisdiction of the Local Courts and Local Land Board to make orders for
maintenance or construction of retaining walls, to the extent necessary
to resolve dividing fence disputes. The Bill was introduced on 11 April
2008; check the Bills progress at NSW Legislation.
The construction of a retaining wall will often require a Development
Application. If you are planning to build a retaining wall, you will need to
check with your Local Council.
Law of support
The NSW Law Reform Commissions Report 84 (1997) The Right to
Support from Adjoining Land pointed out deficiencies in the way
common law dealt with supported land. The law only extended to land
in its natural state, and so not to buildings or other improvements. It also
did not include support to water or reclaimed land. The Conveyancing
Act 1919 was amended by Conveyancing Amendment (Law of Support)
Act 2000 to create a duty of care in relation to the right of support for
land see section 177(1). The action which had previously been available
was the common law action of nuisance, which was abolished with
respect to supported lands.
The new duty of care is created as an addition to the common law of
negligence. It prohibits activity which:
 damages supported land
 makes supported land and its structures unsafe
 makes supported land unable to safely support any structures which
may foreseeably be erected on it in future
Dividing Fences and Retaining Walls | 27
28 | Neighbours and the Law
5. The standard form of words is in Schedule 8 to the Conveyancing Act.
6. Law Society Journal, September 2007, p 7 Difference between retaining walls and
dividing fences needs to be borne in mind.
It allows a person to bring an action in negligence for any damage
caused by the removal of any natural support, or of any structure that
has replaced that natural support. Supporting land includes the natural
surface of the land, the subsoil of the land, any water beneath the land,
and any part of the land that has been reclaimed.
Excluding or modifying the duty of care
The duty of care can be excluded or modified by agreement between
the owners. For example, if the owner of supporting land wishes to do
work on their land that will remove support, the owner of the supported
land may agree to relinquish their right in exchange for money. Such an
agreement does not bind subsequent owners unless is an easement for
removal of support5 is registered on the title of the supported land.
The change to the law was a recognition of the need to increase
responsibility of neighbours in modern living conditions, especially in
cases of semi detached houses, common party walls and retaining walls
on sloping lands.
Proposal for change
There has been a proposal by the Department of Lands that Local
Courts or Local Land Boards be given the power to deal with retaining
walls in a similar way to dividing fences.6 However, a submission from
the Property Law Committee of the NSW Law Society points out the
significance of the difference between dividing fences and retaining
walls, in that where dividing fences simply divide land, retaining walls
affect the rights of adjoining landowners. The Committee suggested
further requirements for proposed legislation to take account of the
fact. See also Note on page 27 about possible changes to the Dividing
Fences Act (NSW).
[Information in this section was based on the Second Reading Speech to the
Conveyancing Amendment (Law of Support) Act 2000, NSW Parliamentary
Debates, Legislative Assembly, 5th April 2000, 4174 (R Amery) and articles in The
Law Society Journal, Right to support from adjoining land catches up with law
reform recommendations, P Blair, (2000) 38 (6) p 34 and Does the law of support
amendment provide an unnatural right of support?, C Wong, (2001) 39 (4), p 56.]
Other Boundary
Issues
If you and your neighbour are in dispute over where the common
boundary of your respective properties lies, you can try to resolve the
dispute by having a survey done by a licensed surveyor. Otherwise,
an application can be made to the Registrar-General for the
determination of the position of a common boundary: Real Property
Act 1900 (NSW) Part 14A.
The application can be made by an owner of land on either side of
the boundary and should include any information (for example, an
identification survey or peg-out survey) or documents that support their
position. Application forms must be lodged in person and a lodgement
fee paid.
The Registrar-General will then give notice to the adjoining owner and
invite the owner to make submissions in reply to the application. The
Registrar-General must also consult a registered surveyor before making
a decision and may decide that a survey or other investigation should be
carried out. The applicant may be required to pay for additional surveys
or investigations.
The decision will be made in light of all the evidence available to the
Registrar-General. If the evidence is inconclusive, a decision may be
made on the basis of what is just and reasonable in the circumstances.
Notice of the determination will be given to both the applicant and the
adjoining landowner.
If an owner on either side of the boundary is unhappy with the decision
of the Registrar-General, they may appeal to the Land and Environment
Court within 28 days of receiving notice of the decision.
Encroaching Building s
The Encroachment of Buildings Act 1922 (NSW) regulates situations
where a building has been built across a boundary. The Act applies to
a substantial building of a permanent character. This includes walls,
overhangs and any part of a building above or below ground that
crosses the boundary. If any question arises as to whether an existing
building encroaches, or a proposed building will encroach beyond the http://www.legalanswers.sl.nsw.gov.a...neighbours.pdf

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## Marc

*Below a case similar to the one posted in the state of Queensland.
My observation: 
The solicitor answering the question makes a feable attempt to confuse the matter between what is a fence and what is a retaining wall, using the fact that a fence can be a wall. Absurd. A retaining wall can be made out of timber, that does not make it a fence.
A retaining wall is by definition a way to support the land be it to replace natural land that was cut away, or to support fill incorporated to the land to rise it. A retaining wall does not divide land a fence does. A retaining wall needs a fence to divide the land...* :Doh:  *
Property Law Issue - Retaining Wall*       *Customer Question*   Ask your own question now >   
We live in Queensland and have a problem with a retaining  wall on the boundary between our property and that of our neighbours.  There are 3 retaining walls in total (terraced).The top wall is on our  property and in good condition and contains some fill and is also tied  to our foundations.  The bottom wall is on their property and also in  good condition. The middle wall is over 30 years in age and failing.   Its height approximates what we estimate to be the natural soil level.  We are on the uphill side, their property is cut into the hillside  creating a drop of almost 4 metres in total. We have determined from our  research that the Qld Dividing Fences Act (1953) does not apply in this  case as the wall does not form the base of a fence. The neighbours  refuse to meet 1/2 the cost of repairs claiming that the wall, although  located on the agreed boundary, is not their problem. We have determined  that under the QLD Property Law Act (1974) the "right to uphold land"  indicates that the neighbour on the lower side is responsible for upkeep  of this retaining wall, and hence its repair or replacement.  
The  neighbour has approached the local council about this issue, and  consequently we have been served with an Enforcement Notice to repair  this wall in approx 21 days from issue. We are currently appealing  against this notice. Is it appropriate to cite the right to uphold land  as the basis of this appeal?
And, finally where do we go from  here?  Who would you suggest is repsonsible for the repair of this wall?   Is it the neighbours below, us on top or a shared responsibility?  The  first problem is to deal with the Council enforcement notice.  The  second is to resolve the issue of repsonsibility and have the wall  repaired.
Regards
                                                                Submitted: 1105 days and 1 hours ago.             
                                                                    Category: Australia Law                 
                                                       Status: CLOSED                                     *Optional Information* 
              Toowoomba, Australia 
Already Tried: 
Phoned local law experts and courthouse             *Accepted Answer*    
              HelloCustomerbr />
I would not give up on the _Dividing Fences Act (1953)_ just yet to deal with both the enforcement notice and responsibility to repair the fence. 
Look  at the definition of a Fence under the Act, it means a structure of  posts and boards etc.... or a wall, ditch, or embankment, or a  combination of any of these, enclosing or bounding land, and includes  any foundation, foundation wall, or support reasonably necessary for the  support and maintenance of the fence, but does not include a wall which  is part of a house or other building. 
As the Act specifically  includes walls, ditches and embankments, it can extend to retaining  walls where these form an effective barrier between adjoining  properties, especially in your case where a retaining wall creates a  sharp drop from one property to another. 
Therefore as it is not  practical to build a fence wholly on the common boundary line because of  physical features or where adjoining lands are separated by any natural  feature, it is possible to propose that the fence be constructed on a  line other than the common boundary. 
If you look at Section 8(3)  of the Act, this is exactly what this situation allows for - and in my  view, you would be within your rights to issue a Service of Notice to  Fence to your neighbour pursuant to Section 8(1) and (2) of the Act  compelling them to contribute towards the replacement of the retaining  wall. 
I trust this information is of assistance and that you will kindly accept my answer as I wish you the best in this matter 
Regards 
Maurice        Expert: Maurice  Pos. Feedback: 99.4 %  Accepts: 2760  Answered: 4/14/2009   *Lawyer*
                 Lawyer (Juris Doctor, MBA IntBus) with 25 years Australian Business Experience at Your Service  Ask this Expert a Question >            
                                1104 days and 1 hours ago.          *Customer Reply*     
Dear Maurice, in a phone discussions held with the  council engineer, it appears that they (the council) work on the premise  that if a retaining wall contains fill, it therefore is the problem of  the person on the side where the fill has been added (to repair it).   The council engineer looked at the wall, and made a judgement that at  the end he inspected, it appeared that it had been built to raise the  level of our block, and was therefore it was our problem - hence the  enforcement notice.   
However, this only accounts for  approximately 1/5 of the wall (as the block slopes in two directions).   The remaining 4/5 of the wall are clearly the result of cutting into the  natural hillside.  When I pointed this out to the engineer (over the  phone) he suggested that this made the issue more compicated (not quite  an admission of a rushed decision but at least confirmation that we may  have been steamrolled). 
This still leaves us with a council that seems not  to think that the Divided Fences Act applies to this case.  We have  lodged our appeal on the basis of the "right to support land and  buildings" (Section 179 Queensland Property Law Act 1974).  We will now  have to wait for the tribunal to set a hearing date.  The Dividing  Fences Act could provide a fallback position.  It appears that the  tribunal will determine (based on evidence provided to it)  liability  for these repairs - or the apportionment of liability across both  property owners. 
The general advice we have received is  that this kind of issue can be very complex - we seem to be living that  reality at the moment. 
Regards            *Accepted Answer*    
              HelloCustomerbr />
All understood, and nothing worse than  having to set precedences in matters such as these - I am hopeful for  you that some common sense will prevail and that some apportionment of  liability does flow through to you. 
The retaining wall issue has  been going on for some time now and there has been a concerted effort to  integrate this issue into the Dividing Fences Act. The suggestion I had  provided in my answer is taken from decision makers in this area so the  movement is there to resolve it - policy and laws happen so quickly  when "public" outrage and sentiment is involved but on matters such as  these, its a slow grind. 
I do wish you the best and would welcome  your future contact, I will dig a little further into the Property Law  Act and will respond if I can add some more value. 
Cheers 
Maurice        Expert: Maurice  Pos. Feedback: 99.4 %  Accepts: 2760  Answered: 4/15/2009   *Lawyer*
                 Lawyer (Juris Doctor, MBA IntBus) with 25 years Australian Business Experience at Your Service  Ask this Expert a Question >             *Solicitors are online right now*

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