A retaining wall is a piece of infrastructure which is built on land, usually when soil is excavated. The wall is constructed in such a way so as to maintain the excavation and prevent the earth from spilling back into the excavated area. Excavation will often require a development application being made to the local Council, so the construction of a retaining wall will likely be contingent on consent being given to do the work that the retaining wall is intended to provide support for. It is important therefore to properly draft the relevant documentation prepared for the development consent. For more information, see our section titled “Development Applications.”
Who should pay for the Retaining Wall?
Ordinarily, the owner will pay for his own improvements to his land. However, in the event that a retaining wall is built so as to provide support for the maintenance of a dividing fence, section 3 of the Dividing Fences Act 1991 (NSW) states that the adjoining neighbor will have to share in the expenses of the construction of the wall.
A question of whether the retaining wall actually provides support to or maintains the dividing fence may be open to dispute. In these circumstances, it is important to seek legal advice so that proper representations can be made either in negotiations with the adjoining neighbour, or litigation in Court.
Under section 177 of the Conveyancing Act 1919 (NSW) there is a duty of care associated with dealings with land. Under the section, an owner can bring an action in negligence for any of the following matters, which result in the removal of any natural support or support structures to the land:
- Damage directly done to the supported land;
- Renders the supported land unsafe; and
- Renders supported land incapable of safely supporting any structures that may be constructed on the land in the foreseeable future.
This liability can be mitigated or negated by mutual agreement. An easement, for example, can provide for dealing with the supported land in such a way that would ordinarily be actionable under section 177. For more information on encumbrances, see our section titled “Easements and Covenants.”
If you are a property owner and an issue relating to a retaining wall has come to your attention, there might be a number of pertinent legal issues that will need to be contemplated before you know what steps can be taken to resolve the matter. Our property lawyers and retaining wall lawyers have been assisting clients for over a decade with disputes and the provision of legal advice regarding retaining walls and we have the skills and expertise necessary to assist with your retaining wall matter.
If you would wish to discuss any of the above issues further, you can contact our firm to set a meeting with our property solicitors or retaining wall solicitors by telephone on (02) 9233 4048 or send an email to info@navado.com.
This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.
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