Case study: Retaining wall dispute with the lower neighbour

Case study: Retaining wall dispute with the lower neighbour

Looking to find out how a real life retaining wall dispute pans out? Take a look at this recent case where McAndrew Law successfully defended litigation commenced by the neighbour on the lower side and reached an agreement for the neighbour to pay all costs to replace the retaining wall and fence.

Circumstances

Our client was the owner of the property on the higher side of the retaining wall. They lived in the property for a significant period of time before the retaining wall started to fall into disrepair and collapse into the neighbouring property on the lower side.

The neighbours negotiated for over a year to try and reach a resolution on who would pay the costs associated with replacing the retaining wall and the fence, which contractor would be engaged to do the works and the materials to be used.

QCAT Proceedings

The first legal action that was taken was by our client to commence QCAT proceedings to seek an order for the replacement of the retaining wall and fence.

Can you apply to QCAT for a retaining wall dispute?

The Queensland Civil and Administrative Tribunal, or QCAT as it is commonly known, only has limited powers to make orders in respect of retaining walls. These powers are outlined in section 35(1)(f) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld):

‘… any other work to be carried out that is necessary to carry out the fencing work … including work for a retaining wall’

These powers are only ancillary and QCAT has been very reluctant to make decisions that involve retaining walls. In fact, nearly every QCAT decision regarding retaining walls has held that QCAT does not have jurisdiction.

Outcome of QCAT proceedings

Despite submissions by the parties that the retaining wall dispute was within the jurisdiction of the Queensland Civil and Administrative Appeals Tribunal, QCAT adjourned the proceedings until the retaining wall issue was resolved.

Magistrates Court Proceedings

Following the QCAT case being adjourned, the neighbour on the lower side then commenced proceedings in the Magistrates Court seeking for our client on the higher side to pay all costs associated with the replacement of the retaining wall and fence.

It was at this point that McAndrew Law was engaged and a defence was filed to defend the legal proceedings against our client.

We had to go through the process of determine who was liable for the retaining wall replacement. Further information on which neighbour is responsible for a retaining wall can be found here: Click here.

Soil test report

One of the benefits of being a land owner on the higher side is that it allows you to have a soil test carried out to determine the depth of fill behind the retaining wall. This provides important evidence in showing whether you receive any benefit from the retaining wall and if you do, assists in arguing that you are not responsible for the cost of repairing or replacing it.

We reviewed the information available to us and promptly advised the neighbour on the high side to engage a geotechnical engineer to carry out a soil test to determine the depth of fill on their side. The results of this test showed that there was no fill on our client’s land.

Boundary survey

A boundary survey is an important part in resolving retaining wall disputes as it provides information on where the retaining wall is located. A retaining wall located wholly within one property is generally an indication that the retaining wall has been constructed for the benefit of that lot.

Our client also mentioned that survey pegs had been placed on and around the retaining wall in late 2018. We were able to liaise with a friendly surveyor to carry out a search of publicly available survey records and obtained a copy of the survey. This search was able to save our client approximately $2,000 in having their own survey carried out.

Importantly, this survey results we obtained showed that the retaining wall was generally on the common boundary.

Settlement offer

Court proceedings are an expensive process and it is often in the interests of both neighbours to settle the matter before it goes to a Court hearing. This is especially the case when arguing over a retaining wall where legal costs can exceed the cost of replacing the wall itself in some circumstances.

At the very start of the Court process, our client made a settlement offer to pay half the cost to have the retaining wall and fence replaced. This offer was rejected by the neighbour on the low side.

Outcome

As a part of the Court process, the Magistrate generally requires the parties to meet to try and settle the matter before it proceeds to a hearing. This process is generally called a settlement conference.

McAndrew Law was able to successfully negotiate a settlement, with the lower neighbour agreeing to pay all costs for the replacement of the retaining wall and fence. This was a very successful outcome for our client and a significant cost saving from their original position of offering to pay half of these costs.

Got your own retaining wall dispute in Queensland? Get in touch with McAndrew Law today for a free initial assessment of your case – 07 3266 8555 / mail@mcandrewlaw.com.au 

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