Your Guide to Retaining Wall Disputes

Your Guide to Retaining Wall Disputes

Retaining walls are a common source of disputes between neighbours and the law in Queensland for retaining walls is quite complex. Unlike fences that are governed by their own legislation, retaining walls are classed as building structures without legislation clearly outlining maintenance and repair obligations.

Who is responsible for the cost of maintenance and repair?

The general rule is that a retaining wall should be built entirely within the boundary of one of the properties and not on the common boundary like a fence. This means that the maintenance and repair obligations generally rest with the person who owns the property the retaining wall is located on.

The retaining wall is usually located on the property it is primarily benefiting. This means:

– if the land was cut (ie dug out) then the retaining wall would usually be on the lower property and that owner would owe a duty of support to the owner of the higher property.

– if the land was filled (ie dirt added) then the retaining wall would usually be on the higher property and that owner would have a duty not to allow their property to erode onto the lower property.

Although good practice is for a retaining wall to be built entirely within one property, we find that a major source of retaining wall disputes is where it is built on the common boundary or where the retaining wall encroaches onto the neighboring property. This is especially the case with older retaining walls.

How do I find out who owns a retaining wall and who is responsible for the retaining wall repair?

The process to determine ownership of a retaining wall and who is responsible for its repair involves one or more of the following:

– a search of public records to identify any building approvals, development approvals or operational works approvals that indicate where the retaining wall was constructed and any cutting or filling of the land

– engaging a surveyor to carry out an identification survey. This survey will identify the exact location of the retaining wall with respect to the common boundary

– engaging an engineer to provide advice on the reason the retaining wall has failed. This is often called a ‘causation report’. Even though one person may own the retaining wall, the neighbour can still be responsible for damage they have caused. The most common example of this is poor drainage and damage from tree roots.

– having a soil test carried out at various bore hole points to determine the depth of fill on your side of the retaining wall.

– engaging a law firm that specialises in retaining wall disputes to provide advice on who is responsible for repairing the retaining wall.

Will one owner always be solely responsible?

This area of law is highly technical and each case will depend on its own facts.

The clearest case is where:

– a retaining wall has been constructed entirely within one lot due to the cutting of filling of that lot only; and

– there is no suggestion that the neighbour has contributed to the deterioration of the retaining wall in any way.

In the above circumstances, the owner of the retained lot will generally be responsible for all costs associated with the repair and maintenance of the retaining wall.

The situation becomes much more complex where the retaining wall is not entirely within one lot, the retaining wall benefits both properties (such as one being filled and the other being cut) or where a party has contributed to the retaining wall being damaged.

How do I know if the retaining wall is in my property?

The only way to know the location of the retaining wall for certain is to engage a surveyor. The surveyor will carry out an ‘identification survey’ that shows whether the retaining wall is within your property, in your neighbour’s property, on the common boundary or a combination of these.

Sometimes it gets really complex and you can have all three, like this one:

Identification survey results

Western wall is inside the property, Northern wall is outside the property and the Eastern wall is generally on the common boundary

Can I access my neighbour’s property to maintain the retaining wall?

One of the major difficulties with retaining walls is that it can be nearly impossible to maintain and repair them without accessing the neighbouring property. This is especially true for the neighbour on the higher side.

Unless there is an easement that allows you access, you generally cannot lawfully access your neighbour’s property to maintain the retaining wall without their consent. If you are proposing to carry out works, you should ensure that you speak with your neighbour first and get their agreement before accessing their property.

For neighbours on the lower side, you should act reasonably when allowing your neighbour access to repair and maintain the retaining wall. Court’s generally do not look favourably on neighbours that have prevented access and this may have a detrimental impact if the matter proceeds to Court.

If the retaining wall dispute proceeds to Court, then the Judge has the power to make orders that require access to be granted to allow for the retaining wall to be repaired.

Can I force my neighbour to repair or replace a retaining wall?

Under the common law, a land owner has a duty, when he or she is aware or ought to be aware of a hazardous condition on his or her land which puts neighbouring land at risk, to take such steps as are reasonable in all the circumstances to prevent or minimise the risk of injury or damage to the neighbour’s property.

Where there is a retaining wall dispute that relates to a retaining wall posing a hazard, it may be possible to seek a Court order to require the retaining wall to be made safe.

My neighbour wants to take down the retaining wall. Can they do this?

So if we’ve established that the retaining wall should be entirely within one property, we now know that the owner of that property also owns the retaining wall. Does that mean they can take the retaining wall down if they want? Fortunately, the answer is generally no. Each owner generally has a duty to ensure their property is not eroding onto the neighbouring property and that they are not removing structural support.

What is the retaining wall dispute process?

You can check out a real life case study here.

What is the process to determine who is responsible for the retaining wall?

Retaining Wall Responsibility Infographic

What now?

McAndrew Law are experts in resolving retaining wall disputes and determining who is responsible for the cost of maintaining and repairing retaining walls. Let us know if you are having an issue with your retaining wall and we would be happy to help. Comment below email mail@mcandrewlaw.com.au to get started.

17 Responses to Your Guide to Retaining Wall Disputes

  1. paul hodgkinson says:

    good morning
    (Not mentioned in your report above…would appreciate your adivice.)

    There is a timber retaining wall in disrepair right on the alignment between us and our neighbour. ( site survey was done by a surveyor.) We are on the high side and neighbour on low side. There is a 50% cut on his side and 50% fill on our side…we are asking him to contribute half the cost. He does not want to pay any money.
    Where are we at, with the law in qld or any judgements in qld. for this. Is there a qld law regarding this matter.
    would appreciate your help for our intial discussions with our neighbour.
    Kind Regards
    Paul

  2. mcandrewuser says:

    Hi Paul

    There is no quick and easy answer to your situation. Please feel free to email through your contact details and property address to mail@mcandrewlaw.com.au or call on 07 3266 8555 and we would be happy to discuss with you further.

    Kind regards

    McAndrew Law

  3. Jenny Lee says:

    Hello, our issue is that the local council built a causeway through private property at the back of ours many years ago . Since then the property sold and a house built . The new owners have built a block wall on their property to block the the easeway and redirect the water . Recent floods in Townsville tested the wall and it blocked so much water that surrounding properties including ours were damaged fencing and mass volumes of water through our yards . We have been informed by council that will not change the old easement and that the neighbor can do whatever he likes on his property . Is this true even at the expense of surrounding properties ? Another factor is the large holes we have from the water in our yard where the water has come through like a raging river . They are neck high deep filled with water which is a safety issue for kids drowning as well a health issue for mosquitoe diseases . Is there anything we can do ? The property does. It care to work out a solution for all of us.

    • mcandrewuser says:

      Hi Jenny

      First of all, we’re sorry to hear you’ve battled through the recent Townsville floods. We recommend you ensure the water filled holes are fenced off or filled as soon as possible to prevent injury or drowning.

      Regarding any responsibility from the neighbour, we would need to look into this further for you. If you can provide the address of your property and some photos to mail@mcandrewlaw.com.au, we would be happy to provide further guidance.

      Kind regards

      McAndrew Law

  4. Megan McCutcheon says:

    Hello I’m in QLD and my neighbor has refused to help in cost of fence so I put a timber 1 up on my side of boundary, He has now built up a retaining wall using besser bricks and some ugly wood to make a dodgy retaining wall and bolted it to MY fence which is not strong enough to withstand the pressure. I have contacted the council and they say it’s not their area even though it is 1.2m high.. How can I get his wall off my fence?

    • mcandrewuser says:

      Hi Megan

      We find that Council’s are very reluctant to get involved with retaining wall and fencing disputes as they see it as a private matter.

      If you email some photos through to mail@mcandrewlaw.com.au, we would be happy to come back to you with some further guidance.

      Kind regards

      McAndrew Law

  5. Phil Dudding says:

    I have a retaining that urgently needs repair. I am I the lower side and the wall is on my side. When the land was developed the walls were built then I believe our land has been cut and the neighbours filled. The neighbour wants no part of it. What can I do to see who pays for it or are costs split.

    • mcandrewuser says:

      Hi Phil

      You mention that the wall is on your side. Have you had a survey done to confirm this or is there any other documentation to support this? The location of the wall will be relevant to determining liability for repair.

      The next steps are to find some evidence to determine whether the land has been cut, filled or both. This can include a search of Council records for relevant approvals, carrying out a soil test on the higher side with the neighbour’s permission or engaging an expert to provide their opinion based on the topography of the land.

      If the land was constructed due to both cutting and filling, then both neighbours would generally be responsible for its maintenance and repair.

      Please don’t hesitate to get in touch if we can be of further assistance.

      Kind regards

      McAndrew Law

  6. Zoe says:

    My neighbour’s retaining wall – which supports the dilapidated dividing fence – is badly damaged, to the point of being dangerous. The retaining wall benefits the neighbouring property rather than my own. The situation is complicated by the fact the homeowner lives overseas and his representative flatly refuses to do anything about it. I want to replace this hazard with a new retaining wall and fence. I have indicated that I would gladly pay half, but he’s not interested. Is there any way I can compel the homeowner to contribute?

    • mcandrewuser says:

      Hi Zoe

      If it is the case that the retaining wall only benefits your neighbour, then they will generally be responsible for the cost of its repair and replacement. You will be jointly responsible for the repair and replacement of the dividing fence.

      If the retaining wall is in danger of collapse, you should ensure you take appropriate action to make the area safe to any occupiers of your land. If you are on the lower side, this can include temporary supports for the wall. On either side, you can consider taping off an area of land so that people cannot be injured by the collapse of the wall.

      If your neighbour is responsible for the repairs and they are not willing to do them, then the only next step is to proceed down the legal path of issuing a letter of demand and then commencing Court proceedings. We would be happy to assist with this process and please do not hesitate to get in touch to progress this.

      Kind regards

      McAndrew Law

  7. Karen says:

    Hi, our company owns a property that is on the lower side of the block retaining wall that we constructed. Our issue is that the neighbouring property has a very large tree and the roots have pushed out a large section of the retaining wall. We are concerned that that section (roughly 1.5m wide) may fall after time.

    Is it their responsibility to rectify this issue and can we have the tree cut down so this won’t happen again?
    Thank you
    Karen

    • mcandrewuser says:

      Hi Karen

      Any willful or negligent damage to the retaining wall will generally be the responsibility of the party that has caused the damage. This will apply to damage caused by tree roots.

      The process starts with talking to your neighbour and then if it cannot be resolved, we would assist with a formal letter of demand and Court proceedings if it is not resolved from there.

      Kind regards

      McAndrew Law

  8. Winnie says:

    My neighbour ‘s retaining wall recently collapsed, they want to repair it, but they asked me to pay half of the cost. I don’t know should I pay for it or not need to pay as the retaining wall is in their property.

  9. John says:

    Hi, We are currently building a house on a vacant lot. Our Neighbour is doing the same beside us. We had spoken about a joint retaining wall as it benefits both. There is currently a fall of 800mm, but the neighbour has informed me he wants to fill another 400mm. Meaning a retaining wall of 1.2m and a 1.2 fence on top of this. This will block our view and also the prevailing breeze. What rights to I have to limit the height of this retaining wall on the boundary line.
    Thank you
    John

    • mcandrewuser says:

      Your neighbour has no right to build a retaining wall on the boundary line. If they want to do this, they need to do it with your agreement.

  10. Bob says:

    Does having a shared fence supported from the boundary retaining wall make any difference in QLD to the ratio of shared ownership.

    • mcandrewuser says:

      Hi Bob

      The costs of the fence will generally be shared equally. The costs of the retaining wall will be as per the above article.

      Kind regards

      McAndrew Law

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