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Liability for Deteriorating Retaining Walls

This brief article explores the question of who has liability for deteriorating retaining walls and highlights the role of mediation and avoidance of civil litigation when resolving neighbour disputes.

Background

Retaining walls are often built between adjoining properties situated at different levels.  Some of these walls are old and no longer conform to modern building codes. This situation leads to an important question: who bears the onus when these retaining walls deteriorate?

Determining liability relies on specific circumstances.  However, we can gain a valuable understanding of how courts address this matter from a prominent legal ruling in the case of Yared v Glenhurst Gardens [2002] NSWSC 11.

Yared v Glenhurst Gardens [2002] NSWSC 11

In this case, the defendant owned a property adjacent to the plaintiff’s land with a common boundary. The defendant’s property stood four to seven metres higher than the plaintiff’s property. The retaining wall supported a steep embankment along the common boundary. The wall, constructed in accordance with 1927 standards, intersected with the boundary. Heavy rainfall precipitated a partial collapse of the retaining wall, leading to a large amount of debris falling onto the plaintiff’s land.

The plaintiff initiated legal action, seeking damages. The claims contended that the fill material amassed by the defendant above and behind the retaining wall amounted to a legal nuisance. Furthermore, the plaintiff alleged that the defendant’s negligence in not maintaining the trees and vegetation on their property contributed to the collapse. The defendant countered with a cross-claim, asserting that the plaintiff’s negligence in preserving the structural stability of the wall posed a hazard to her property and that the plaintiff had failed to address this hazard.

The plaintiff drew from the English Court of Appeal’s precedent in Leakey v National Trust [1980] 1 QB 485.  This precedent establishes that a landowner, when they are or should be aware of a hazardous condition on their land jeopardising neighbouring properties, is obliged to take reasonable measures to prevent or minimise risks.

Justice Austin expressed that while they were not directly binding, the principles from Leakey’s Case were applicable in this jurisdiction. He noted that the retaining wall yielded benefits to both parties: it retained the defendant’s soil and facilitated the plaintiff’s land use while protecting against landslips.

Justice Austin said that it is the duty of the defendant to take reasonable actions in the given circumstances. He deemed it fitting for the defendant to contribute a proportionate share (in this case half) of the remedial expenses and grant access to contractors for the repair work.

Dividing Fences Act 1991

The sharing of costs for a dividing wall between adjacent landowners is governed by the Dividing Fences Act 1991 (NSW). Section 3 of the Act provides that a dividing fence includes a retaining wall only when that wall serves as a needed foundation or support for maintaining the fence’s stability and upkeep.

In Summary

In situations where neighbouring property owners are entangled in disputes over the liability for a deteriorating retaining wall, pursuing legal action can result in considerable inconvenience and financial burden. Parties share an interest in preserving the stability of the land along their common boundary and implementing corrective measures to ensure the integrity of both properties.

The case of Yared v Glenhurst Gardens 2002 NSWSC is consistent with the Dividing Fences Act 1991 (NSW) in that both parties share an equal liability for the maintenance of a retaining wall on a common boundary and a dividing fence.

BSM Property Dispute Lawyers

The highly experienced property dispute lawyers at Brander Smith McKnight frequently deal with neighbour disputes.  We work hard to provide effective alternative dispute resolution solutions to save our client’s financial, emotional and time costs.  The Dividing Fences Act 1991 (NSW) and the case of Yared v Glenhurst Gardens 2002 highlights the considerable gains that can be made via processes such as negotiation and mediation with the avoidance of expensive civil litigation.  We pride ourselves on our ability to settle the majority of disputes with skilful negotiation and mediation.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

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