We recently wrote an article about boundary fences or dividing fences in Queensland. You can view this article here:
https://www.propertyzest.com.au/boundary-fences-in-queensland-who-pays/
The law around boundary fences is relatively straightforward in that the presumption is that parties share the cost and responsibility for building and maintaining a boundary fence.
Retaining walls, however, are a little more complicated, they are not covered by the Neighbourhood Disputes (Dividing fences and Trees) Act 2011 as they are not classified as a fence and can be the source of disputes between neighbours. This is particularly the case as retaining walls can be very costly to maintain and upgrade if required.
We recently had this very circumstance in one of our rental properties which caused us to look a little more deeply into the roles and responsibilities for retaining walls. What we found was not a clear and decisive answer, however, but a realisation that there are many factors that may be taken into account when determining who is responsible for the maintenance and cost of a retaining wall. These may include:
- Where the retaining wall sits in relation to the lots – is it on the boundary or situated more so on one lot than another.
- Benefit received by each party from the retaining wall which may be determined by looking at the purpose of its construction – i.e. to hold fill for a higher property or to cut in a lower property.
- Any damage caused and the causal factors of this – e.g. trees, branches, roots, stormwater overflow
In most cases, the responsibility of maintenance will fall to the property owner whose land benefits most from the retaining wall.
If a property owner and their neighbour cannot agree upon responsibility and cost allocation then the issue may require a legal professional to assist. Any legal process will likely also require the services and costs of other professionals to provide supporting information, such as a geological engineer or surveyor.
