A retaining wall is a structure designed to hold up an embankment of soil which has been artificially created following either the cutting and excavation or back filling of a sloped allotment of land. In most cases the earthworks are performed to create a more usable level platform of soil for building construction. However, given the fact that these works may have an impact on any neighbouring property, what are the rules around the design, positioning and maintenance of these structures?
Generally, the wall will be positioned inside the boundary line of the property that benefits from it and consequently, it usually follows that the cost of construction and maintaining the wall will always be the full responsibility of the owner of that property from time to time.
Local Council approval for the structure is usually not required unless the wall either, rises above 1 meter or is positioned within 1.5 meters of a building structure and/or directly along a boundary line with a neighbouring property.
If neighbours fall into dispute over the construction and/or maintenance of a retaining wall positioned on a boundary line between their properties, the dispute generally cannot be managed under the relatively simple Qld dividing fences laws* and is instead resolved under an old legal principle known as the law against nuisance. This same law also covers a situation where the wall is wholly located inside the boundary of one property but now poses as a landslide threat to the neighbouring property through poor design or disrepair of the wall.
In each case, this anti nuisance law apportions the liability for the wall in the same proportion that the wall supports the excavation and/or filling which has occurred on either side of the wall structure. For example, where a one meter wall between property A and property B supports a soil fill on property A to a height of 300 mm and an excavated fall in property B to a depth of 700 mm, the cost of the wall will be shared as to 30% for A and 70% for B.
Some local Councils maintain records of the original topography of sections of land prior to subdivisions and cut/fill earthworks. If these records are not available, Consultant Engineers can be engaged to make the calculations.
*See section 35 (1)(f) of the Neighbourhood Disputes Resolution Act 2011 for limited circumstances where QCAT still has jurisdiction
Michael Zande is the Principal of Zande Law Solicitors, with 25 years’ experience in practice. Michael and his team have had extensive experience in conveyancing matters. Please feel free to review our firm and staff profiles at www.zandelaw.com.au
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.