Case study - Aleena and Raj
lives in the property next door to Raj. There is currently no fence separating
the properties. A fencing contractor has told Aleena that a retaining wall needs
to be built under the fence to support any dividing fence between the
properties. Aleena would like to know if she can ask Raj to pay for half the
cost of the retaining wall as well as the fence and whether she needs to get approval
from her Local Council to build the retaining wall.
You and your neighbour have a duty of care not to do anything to remove the support to the adjoining land. For example, you could be held liable for negligence if you carry out excavation work on your land which causes damage to your neighbour’s land.
The cost of building, repairing or maintaining a retaining wall is not covered under the Dividing Fences Act unless the retaining wall is necessary for the support and maintenance of the dividing fence.
What is a retaining wall?
A retaining wall is a structure to support or hold back earth. A retaining wall is often found between properties where the ground is at different levels, and:
- provides structural support for the higher property
- maintains the surface of the higher property at its present level
- forms an essential part of the higher property and
- prevents the movement of land between the higher and lower properties.
Who should pay?
The cost of building, repairing or maintaining a retaining wall depends on whether the retaining wall is necessary for the support and maintenance of a dividing fence between your properties.
You should get an independent report from a structural engineer. You should also get legal advice.
If you have supporting evidence to prove that the wall is necessary for the support and maintenance of a dividing fence, you can negotiate with your neighbour and ask them to pay a contribution. You can try mediation at a Community Justice Centres (CJC), send a fencing notice and apply to the NSW Civil and Administrative Tribunal if you can’t reach an agreement.
If the retaining wall does not support or maintain the dividing fence, you should get legal advice about your situation.
Check with your local council before carrying out work on a retaining wall. You may need to apply for a Development Application. For more information, see Do I need approval?
What if we can't reach an agreement?
If you have a dispute about a retaining wall, you can try mediation at the Community Justice Centre (CJC). Mediation is an informal process, where an independent person (called a 'mediator') can help people resolve their dispute.
For more information, see Mediation.
The NSW Civil and Administrative Tribunal (NCAT) will not hear any matters about retaining walls unless there is supporting evidence that the wall is necessary for the support and maintenance of a dividing fence.
Most disputes about retaining walls are heard in the Supreme Court of NSW.
Before you consider starting a claim, you should get legal advice about your situation as retaining wall disputes can be complex and expensive.