Retaining walls, dividing fences and trees are amongst the most common sources of disputes between neighbours. The responsibilities of each neighbour in relation to dividing fences and trees are clearly set out in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). However, the rules surrounding retaining walls are less clear, as they are found in common law rather than legislation.
Is a retaining wall a dividing fence?
This answer is no. A dividing fence is a structure, ditch, or hedge that encloses land, and is located on the common boundary of adjoining lands. A retaining wall is a structure that supports excavated or filled earth.
Who bears the responsibility of maintenance and repair?
It is best practice for retaining walls to be constructed entirely within the boundary of one property, and not on the boundary fence. The person who owns the property the retaining wall is located on, is the person whom bears the responsibility to maintain and repair the wall. Or in other words, the responsibility of maintaining and repairing the retaining wall typically rests with the person who benefits from the wall, provided the neighbour has in no way contributed to the deterioration of the retaining wall. A landowner has a duty of care under common law to take reasonable steps to minimise or prevent the risk of damage to a neighbour’s property, when the landowner is aware or ought to be aware of a hazard on their land that poses a risk to a neighbour’s property.
What happens if the retaining wall is on the boundary of two properties?
If the retaining wall is located on the boundary fence, it will likely benefit both properties and the responsibility to maintain and repair the retaining wall may be shared between the neighbours. However, the division of this responsibility is dependent upon the circumstances of each matter and negotiation is usually the best option.
How do I find out if the retaining wall is located on the boundary?
To identify the location of the retaining wall you may engage a surveyor to identify the boundary. This will determine whether the retaining wall is on your lot or the neighbouring lot.
Can I access my neighbour’s property to maintain or repair the retaining wall?
To avoid unlawfully trespassing, you should seek your neighbours consent to enter their property before conducting repairs to a retaining wall. In some circumstances consent may not be required.
To discuss a matter involving a retaining wall feel free to contact us today. Bennett Carroll Solicitors have offices located in Brisbane, Gold Coast and the Sunshine Coast
Freecall: 1300 334 566
Fax: (07) 3343 8664