While a relevant planning authority may need to give approval for repairs, it is not the role of councils to determine the proportion of benefit and consequent apportionment of costs. If the erection of the retaining wall is due to solely to one neighbour affecting the natural state of the land, as in examples 2 and 3 above, then the party affecting the natural state of the land is responsible for repairs and maintenance.
That is, each owner and subsequent owner of that property is responsible to maintain the wall that benefits them. Even if it is the responsibility of one owner to repair a retaining wall, if a neighbour is experiencing loss or damage due to a faulty, deteriorating or damaged retaining wall, that neighbour has an obligation to mitigate their damage, or else any claim may fail.
As repairing or altering a retaining wall is classified as development, consideration must be given to whether development approval is needed prior to any work being commenced. Check with your local council. Generally, the principles outlined above under Development approval apply. However, if the repairs are minor, using similar materials and not relating to the stability of the wall, formal approval may not be required.
Where it is proposed to build a single retaining wall between properties for the benefit of both land owners, then, if the neighbours agree, the wall can straddle the boundary. Costs are apportioned according to the benefit received. If there is no agreement between neighbours, or if there is an existing retaining wall, as in examples 2 and 3 above, then a retaining wall must be built solely on the property of the person required to build the wall.
If a retaining wall has been built on the wrong side of the boundary this sometimes occurs, for example, when a developer has built adjoining properties , two issues arise: who is responsible to maintain the wall, and encroachment. Regardless of which side of the boundary the wall is, the owner receiving the benefit of the wall is responsible for maintaining it. Retaining walls come under the Encroachments Act SA , and a retaining wall on the wrong side of the boundary is an encroachment.
The Act provides for the adjustment of boundaries or compensation where walls encroach on adjoining land. Neighbours may negotiate to resolve the issue. If necessary, an application may be made to the General Division of the Supreme Court. If the proposed retaining wall is on the boundary of council land, for example, the footpath reserve, then the whole wall, including the footings, must be on your land and not on council property.
The Planning, Development and Infrastructure Act SA allows for emergency orders to be made if an authorized officer of the local council determines there is a threat to safety arising out of the condition of a retaining wall or an excavation. A local council will usually only consider making an emergency order in extreme cases. Further, if there is any uncertainty about whose responsibility the work is, a council would normally serve notice on both land owners, as it is not the role of councils to decide whose responsibility it is to perform the work.
So if the retaining walls are part of private property, the property owner is responsible for its maintenance. For walls that lie in common or shared property under a strata scheme, the responsibility lies with the owners corporation. In general, the retaining walls are the responsibility of the higher property owner.
In general, fences on the property line are a shared expense between both parties. If one person wants 'fancier' fencing or bricking, it's up to that person to pay the difference between what the city requires and what they want. If you dig away on the border slightly to make room for the fence , concrete in the concrete posts and slide in a couple of 1ft concrete gravel boards to effectively hold your land in place it will be fine.
You can slope soil at a maximum of about 35 degrees, if it is mostly granular soil. Any steeper and you need a retaining wall of some sort to keep the soil in place. Sophea Guest. 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. Retaining walls can be erected without Council approval , as a Complying Development, if it meets certain criteria: If the maximum height of your retaining wall is less than 1 metre.
A retaining wall must be located at least 90cm from any property boundary. In most cases, adjoining owners will be better served by negotiating a sensible resolution of a dispute about responsibility for a collapsed retaining wall rather than litigating the dispute. You must be logged in to post a comment. This site uses Akismet to reduce spam.
Learn how your comment data is processed. Leave a Reply Cancel reply You must be logged in to post a comment. Mediation is an informal process, where an independent person called a 'mediator' can help people resolve their dispute.
For more information, see Mediation. The NSW Civil and Administrative Tribunal NCAT will not hear any matters about retaining walls unless there is supporting evidence that the wall is necessary for the support and maintenance of a dividing fence. Before you consider starting a claim, you should get legal advice about your situation as retaining wall disputes can be complex and expensive.
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