LawTalk Blog

Having a dispute about a retaining wall or fence?

the law and retaining walls

A retaining wall is a wall that has been designed to restrain soil to manmade slopes. Retaining walls are used to bound soils between two different elevations in areas such as gardens where the terrain has undesirable slopes or in areas where the landscape needs to be shaped severely and engineered for more specific purposes for building.

While a retaining wall can also act as the footing for a fence, in law, the wall is not treated as a fence and different considerations come into play. TheDevelopment Act 1993 (SA) and theDevelopment Regulations 2008 (SA) regulate the construction of retaining walls in residential properties in South Australia.

In contrast, disputes involving fences are regulated by the Fences Act 1975 (SA). It is common for neighbours to have disputes in regards to who should pay what for the construction or removal of a fence.

There is a difference in legal procedure when it comes to building/removing a retaining wall and building/removing a fence and the contributions from neighbouring parties and the notice provisions required for work to be done.

What does the law say about retaining walls?

If you intend to build, remove or change a retaining wall you may need to obtain development approval to do so and in some cases you must give notice to your neighbour.

Council approval is required if you intend to construct any building on your property and have to excavate and/or fill your land to do so. Also, for example if you are landscaping your garden and you  intend to make changes to an existing retaining wall then in most cases you will need approval for such development from the local council, however this may not be necessary if there are only minor changes to the wall.

In some cases your neighbour's land might be affected by any changes that you intend to make to a retaining wall. This might affect the strength of your neighbours foundations and or land. If you intend to make changes to your retaining wall and this in any way will affect your neighbour's property then you need to give your neighbour notice under theDevelopment Act, and this should occur regardless of whether you actually needed development approval for the retaining wall or not.

If you receive a notice of intended changes to a retaining wall that will affect your property, you may at your liberty request that an engineer provide a report about any problems the retaining wall may cause to the foundations and stability of your property and if the engineer provides specific advice, the person changing the retaining wall must follow the advice given by the engineer that you have engaged. You can also recover your costs from the neighbour for having to engage the engineer and for the engineer having to provide you with a report. If the neighbour is unwilling to pay by agreement, then you can make an application to the Environment Resources and Development Court to be reimbursed for your out of pocket expenses.

If you dispute that the retaining wall should be built or changed in any way or if you haven't received a notice as required by theDevelopment Act 1993 (SA), then an application can be made to the Environment, Resources and Development Court to hear and resolve your dispute.

Alternatively, if you dispute being responsible to build a retaining wall or having to contribute to costs for damages or repair to an existing retaining wall these types of disputes are heard by the Magistrates Court and are minor civil claims (neighbourhood disputes).

Retaining walls may also result in encroachments and we have had a number of clients recently come to seek our advice in relation to retaining walls or fences that encroach onto their property.

Encroachments of fences, property or retaining walls onto neighbouring property come under the Encroachments Act 1944 (SA). Application can be made by affected parties to the Land and Valuation Division of the Supreme Court to resolve such disputes and force the neighbour to remove the encroaching property or compensate their neighbour for the encroachment. This however can be an expensive process as the application to the Supreme Court involves a larger filing fee.

What does the law say about fence disputes?

In relation to fence disputes which are unfortunately very common amongst neighbours, the Fences Act 1975 (SA) regulates disputes.

We note that generally, a neighbour has no legal obligation to contribute to the cost of erecting a new fence, or replacing a fence unless the correct notice has been provided and they have by consent agreed to pay or the Fences Act 1975 (SA) procedure has been followed when urgent repairs to fences are required.

In such disputes between neighbours regarding fencing work an order can be sought from the Magistrates Court where fencing matters are heard in the Minor Civil Claims Division.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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