This article aims to briefly discuss the challenges facing residential neighbours when a dispute between two neighbours in relation to a retaining wall arises. Generally, an attempt is made here to simulate the subject with recommendations as to how you may resolve the dispute with your neighbor.
Retaining wall in a nutshell
Retaining walls is not defined in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA). Instead, the phrase is defined in the Macquarie dictionary to mean a wall built to hold back a mass of earth, for example. Generally, retaining walls involve engineering specifications prior to construction. The tribunals have said, that, unlike fences, it is not usually possible to make both adjoining owners liable for the cost of maintaining, repairing or replacing a retaining wall. This is because usually, a retaining wall is of greater benefit to one of the adjoining owners. For clarity, the retaining wall is not a fence for the purposes of the NDA.
What are the common challenges arising from a retaining wall dispute?
Usually, the dispute surrounding a retaining wall becomes more complex, where the retaining wall is on the common boundary of the adjoining owners’ properties. That is to say, the retaining wall holds back to earth on one of the owner’s property more than the other. The issue becomes further complex whereas one neighbour refuses to repair their portion of the retaining wall which also stands as a dividing fence between the adjoining owners.
Will a tribunal make an order about a retaining wall dispute?
Generally speaking, section 35 of the NDA provides the tribunal jurisdiction to make orders about fencing work. That section is said to be an ancillary power which would enable the tribunal to make orders about retaining walls as an adjunct to an order about fencing work, but not otherwise. More specifically, section 35(1) (f) of the NDA permits a tribunal such as QCAT to decide and order any other work to be carried out that is necessary to carry out the fencing work including a work for a retaining wall.
Do I have any other option other than going to the tribunal?
Sometimes, not always, it may be open to you to consider reaching out to your neighbor in order to resolve your retaining wall dispute amicably. We highly recommend that you seek qualified legal advice in relation to how you may want to conduct a negotiation with your neighbour. This is to avoid compromising your case/rights and to protect your best interest. It is also prudent to do some research prior to discussing the matter with your neighbour. This includes but is not limited to, reviewing the approvals for the development of the retaining wall and to find out the relevant information in relation to the boundary identification of your and your neighbour’s properties.
What if my negotiation with my neighbour fails and I don’t want to go to tribunal either?
There is a free dispute resolution conference that you and your neighbour may avail without the need to have lawyers involved. This will involve a third-party mediator. However, we strongly recommend that prior to going to the conference you seek qualified legal advice so you are fully prepared and informed.
For advice or assistance with all property, commercial and residential matters, contact the Property and Litigation Law Team at Aylward Game Solicitors today on 1800 217 217
Article Source: Retaining Wall Dispute
