Boundary Retaining walls - Who's Responsible?

Important Caveats:

By law Surveyors are only allowed to determine the location of a retaining wall in relation to the boundary.

It is up to the property owners [with the help of a lawyer if need be] to consider factors such as who built the retaining wall, who benefits from the retaining wall and who is responsible for the repair of a retaining wall. Surveyors must not provide property owners with legal advice or commentary on the rights of affected property owners. The law forbids that.

 

Why there's a problem - some history:

Over the last fifty years many retaining walls have been built with timber or constructed without engineering design or with insufficient durability.

More recently many new housing estates have been developed in uneven country where the original developer sought to offer flat building blocks  to facilitate slab on ground construction.To achieve this developers and builders will often cut and bench the whole estate, usually featuring small retaining walls between lots.

Often those retaing walls were built using timber and sometimes those walls were not even in place when the survey was done.

Today we are experiencing lots of calls from owners with retaining wall repairs and replacement problems.

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Who should foot the bill?
Again, before we start on this question one needs to understand that it's not the Surveyor's role to determine the answer to this question.

We understand and empathise with property owners that these repair projects can often be an expensive and complicated construction, but.We emphasise again that the Surveyor's role is only to determine where the boundary is and thereby where the retaining wall sits.

The Surveyor cannot determine who should foot the bill, nor indeed, who owns the wall. Surveyors are not prmitted to provide property owners with legal advice or commentary on the rights of affected property owners.

 

For this reason property owners need to seek legal advice from a legal practioner, preferably from one who specialises in this area of the law. 

In short therefore, the answer to this question of who should foot the bill can only be determined by either the courts or between the respective owners.

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Some important and realistic points to consider:
Retaining walls are often confused with ‘dividing fences’, something they are not. This means that disputes relating to retaining walls do not come under the legislation that deals with dividing fences. There is no specific Act that deals with neighbourhood disputes relating to retaining walls. What this means, and therefore leads to, is that disputes are settled either in Court or by private negotiation outside Court between the parties to the dispute.

A retaining wall is built for a purpose, to retain soil [land]. Generally, it's the property owner who also gets the benefit from the wall’s existence, usually, but not always, the one whose land is being retained, that would be responsible for the wall. Unfortunately it's not always that clear cut or simple. It's not uncommon where we see instances of people who get the full benefit of a wall built on their neighbours’ property.

 

Quite often there may arguably be a benefit to both parties. For instance, if the land was originally sloping and both blocks now have flat land, one might argue that there has been both cut and fill that benefitted both properties.

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In a perfect world, for the construction of a new retaining wall on a boundary, the wall should be built wholly on and within the land that receives the benefit. That is usually the land that is being retained.

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But that doesn't provide a definitive answer for disputes that arise over existing walls. Complicating the issue further, it's not uncommon for both properties to have had several owners since the retaining wall was built, with any history relating to the wall being absent.

In these situations an initial open and friendly discussion between neighbours has often proved fruitful in resolving the dispute and avoiding an unpleasant and expensive legal solution. Remember, at the end of the day the repairs still need to be carried out and paid for.

In respect to cut and fill, the best (and sometimes only) way to determine cut and fill is to dig or drill a hole in the top section to determine the depth of fill if any behind the wall. If its all fill to the base of the wall it can be argued that there is no benefit to the bottom neighbour.

It becomes clearer who may be responsible, but not necesarily cut and dried or clear cut. Again, it's not the Surveyor's job to determine responsibility - they merely produce a survey that shows physical facts.

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Do both neighbours get benefit and share costs?
It is up to the property owners to consider factors such as who built the retaining wall, who benefits from the retaining wall and who is responsible for the repair of a retaining wall.

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The way forward:

There is an information gathering stage for any building project. The first thing is to determine the boundary location. This will involve a Survey.

Discuss the result, assess the issues and repairs, and try to come to a reasonable plan of action. The best solution is served by goodwill between neighbours.

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Article: "Boundary Retaining Walls - Issues & Responsibilities"

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Types of Surveys:

Partial Site Plan - useful for access, quoting and design of a new wall 
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Identification Survey - marks the boundary clearly for both parties and shows the position of structures