Dividing Fence with Retaining Wall

Mugsy on 07/08/2024 - 07:47
Last edited 07/08/2024 - 11:14 by 1 other user

Got a question regarding a dividing fence that requires a retaining wall in Queensland.

When the land in my estate was developed, a retaining wall was put through the back of several lots with it making a 90 degree turn on my lot. The developers stupidly did not run this retaining wall along the lot boundary for my lot but instead went 20-30cm onto my side of the boundary before making the 90 degree turn. It's a narrow access along the side of the property so my wife and I don't want to lose that 20-30cm additional clearance if we are ever to move something that wide through our side access.

Just wondering if my neighbour would have to agree to the retaining wall (i.e. cost split between us) since the current retaining wall isn't on the lot boundary, or if my wife and will need to fork out 100% of the retaining wall costs seeing how there is an existing one even though it's not on the lot boundary?

• 

  Dollar General on 07/08/2024 - 08:01

  Have you confirmed the boundary as it exists on title?

  Generally your neighbours aren’t required to contribute if the existing fence is in good condition. Perhaps chase the builder for the cost

• 

  geekcohen on 07/08/2024 - 08:22

  +2

  It sounds like a you cost.

  Put it this way, I back onto a main street and I need to replace my back fence due to it leaning and aging, but can I split the cost with the council/shire? Nope! I have to foot 100% of the bill.

  If the fence & retaining wall were together and that was the boundary, then I would say 50/50, but if it is on your side, then it is a you cost. The neighbour is very unlikely to go, "sure, I'll pay some of that". Yes, it could impact their land with slippage, but then they could sue you for damages because you failed to maintain something on your side of the fence that has then affected them. There was a thread somewhere about a tree doing something to a neighbour's pipe and a debate about the neighbour coughing up costs to fix the pipe.

  • 

    AngoraFish on 07/08/2024 - 23:01

    -2

    You are not entitled to claim half the cost of fencing along any boundary with a road reserve, regardless of whether you consider it to be a front, side or rear fence.

    • 

      geekcohen on 08/08/2024 - 08:13

      +2

      Yes, I am well aware of that.

• 

  Duckie2hh on 07/08/2024 - 08:39

  +1

  if my neighbour would have to agree to the retaining wall

  no

• 

  oscargamer on 07/08/2024 - 08:40

  +1

  Retaining wall costs aren't usually shared between neighbours, particularly when the wall is on one property.

  Dividing fence costs are usually shared.

  But you need to actually determine where the boundary line is, because in your narrative it is clear that you are assuming that the fence is on the title boundary.

• 

  Euphemistic on 07/08/2024 - 08:52

  +2

  Retaining wall costs are usually on the party the wants to change the lay of the land. In this case, its you.

• 

  Mugsy on 07/08/2024 - 09:04

  -1

  Some answers/clarifications…

  1) Yes confirmed the boundary as it exists on title (I work in property… getting the title and survey plan is second nature for me). Even had the landscaper check since they needed to quote the right scope of works.

  2) The retaining wall to be built that is of concern in my opening post is on the boundary line. It will run 20cm parallel to the existing retaining wall that is not on the boundary line. It is required so that the timber fence can sit on top and so that the fence height is sufficient so that my side won't be looking into the neighour's lot every time we walk past and so that the neighbours can't see directly into our house either.

  As I understand, retaining walls alone would be solely my cost in this scenario… but where the retaining wall forms part of the dividing fence it's not necessarily 100% my cost:

  https://www.qld.gov.au/law/housing-and-neighbours/disputes-a…

• 

  EightImmortals on 07/08/2024 - 09:12

  So can you just build the new retaining wall and shift the existing fence? (might also need to clear this with the neighbours first, that 20cm of dirt might cause you years of suffering otherwise. :) ) As others have said, looks like this will be done at your expense.

  • 

    Mugsy on 07/08/2024 - 09:37

    There's no existing fence. We're trying to put a new fence in but there's this drop at back of the boundary line requiring a retaining wall.

    • 

      EightImmortals on 07/08/2024 - 09:44

      OK. I guess it that case I guess you pay for the new retaining wall and go halvies in the fence with the neighbour.

      • 

        Mugsy on 07/08/2024 - 09:48

        Even when the retaining wall is required for the fence to sit on the boundary line? It's the last sentence from the quoted text below that makes me question if the retaining wall has some responsibility from the neighbour too.

        Retaining walls are not classed as fences under the Neighbourhood Disputes Resolution Act 2011. Retaining walls are built to support built up or excavated earth. They are normally not a matter of joint responsibility for neighbours as they are usually benefit one neighbour more than the other.However, QCAT can make orders about fencing disputes that includes work on a retaining wall if the repair of the fence will also require work on the retaining wall.

        • 

          EightImmortals on 08/08/2024 - 07:06

          @Mugsy: Not sure what you mean, "QCAT can make orders about fencing disputes that includes work on a retaining wall if the repair of the fence will also require work on the retaining wall." You told me that there was no fence, so if there is no fence then that last sentence doesn't apply IMO. My reading of it would be that if an existing fence and retaining wall were in disrepair and if the fence couldn't be fixed without repairing the retaining wall then both parties would have to share the costs? Cheers

• 

  TALL1one on 07/08/2024 - 10:20

  +4

  You stated, " It is required so that the timber fence can sit on top and so that the fence height is sufficient so that my side won't be looking into the neighour's lot every time we walk past and so that the neighbours can't see directly into our house either." So, the retaining wall is NOT needed but you would like one so that the fence height is sufficient so that my side won't be looking into the neighour's lot every time we walk past and so that the neighbours can't see directly into our house either. So, you will need to pay 100% of retaining wall.

• 

  ShortyX on 07/08/2024 - 10:37

  +1

  Is the current retaining wall not the correct height? If not, it might be worth building up the wall a little higher if possible and putting a fence on top, then adjust house plans slightly to cater for the 20-30cm lost and keep the required side access.

  Have you got a photo?

• 

  oscargamer on 07/08/2024 - 10:57

  What is the actual $ cost you are trying to share? and how likely is it you will "win"? and how likely is it that it will affect the relationship with the neighbour?

• 

  NocteRegem on 07/08/2024 - 12:27

  +3

  I have no idea why you would think your neighbour who has assumedly also just built a new house and dealing with the expenses of that would have any appetite at all to agree to have you move a perfectly good retaining wall that is currently your responsibility, to a position that would cost them thousands extra and then become joint responsibility to maintain. Developers would have factored all this into the selling price and as you are the first owner I would just built the fence on top and forget the 20cm.

• 

  JimmyF on 07/08/2024 - 12:46

  +2

  The developers stupidly did not run this retaining wall along the lot boundary for my lot but instead went 20-30cm onto my side of the boundary before making the 90 degree turn.

  Correct, the retaining wall must be on the owners land/side which benefits from the retaining wall.

  and I don't want to lose that 20-30cm additional clearance

  No one wants to, but that isn't how it works.

• 

  kiitos on 08/08/2024 - 16:44

  Is your house above the retaining wall or below it? Was it created to provide a flat place for your house or was it for your neighbours?

• 

  Mugsy on 09/08/2024 - 17:21

  Thanks everyone for you feedback. I did some googling into Brisbane City Council's regulations on retaining walls and am hopefully across this now.

  Looks like our options are to have the new fence on the boundary line and drop 80cm when it hits the retaining wall, or it follows the alignment of our section of the retaining wall where it makes an L shaped turn and we lose 30cm of space. As that 30cm is important to us for getting things through an already narrow side access way, the wife and I will be opting for the fence to drop and deal with a little less privacy.