This article gives a brief overview of the laws regulating retaining wall disputes in New South Wales.
Dividing Fences Act 1991 NSW
Since 2008, under amendments to the Dividing Fences Act 1991 (NSW), an adjoining owner can seek a contribution for the carrying out of work to a retaining wall where the wall is necessary for the support and maintenance of a dividing fence.
Nuisance and Negligence at common law
Common law nuisance principles still apply in relation to hazards escaping from an adjoining owner’s land to another adjoining owner’s land which interfere with a retaining wall.
In relation to claims in negligence for a defective retaining wall, section 177 of the Conveyancing Act 1919 (NSW) (“CA”) applies.
Section 177 of the CA allows a person to bring an action in negligence, that is, a breach of duty of care, for damage causes by the removal of any natural support or structure that has replaced that natural support. The section also allows a person to bring a claim in negligence for damage caused by the removal of any natural support or structure that has replaced that natural support.
An express agreement between the parties can reduce or exclude the duty of care. If the agreement is formulated and registered as an easement for the removal of support relating to that land, it can be binding on subsequent owners of the affected land.
Trees (Disputes Between Neighbours) Act 2006 NSW
The Trees (Disputes Between Neighbours) Act 2006 (NSW) (“Trees Act”) provides a much
cheaper and simpler method for resolving some of the tree disputes between neighbours which affect a retaining wall.
If you have a retaining wall issue, please feel free to contact Michael Pobi of our office on (02) 8324 7565 or email him at michael.pobi@pobilawyers.com
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