Case study – John and Bill
John and Bill are neighbours. There is currently no fence separating John and Bill’s properties. A fencing contractor has told John that a retaining wall needs to be built under the fence to support any dividing fence between the properties. John would like to know if he can ask Bill to pay for half the cost of the retaining wall as well as the fence and whether he needs to get approval from his Local Council to build the retaining wall.
Under the Dividing Fences Act 1991 (NSW) the owners of neighbouring properties must equally share the cost of building a sufficient dividing fence between their properties. A retaining wall is part of a “dividing fence” if it is necessary for the support and maintenance of the fence.
What is a retaining wall?
A retaining wall is a structure to support or hold back earth. A retaining wall is often found between properties where the ground is at different levels, and:
- provides structural support for the higher property;
- maintains the surface of the higher property at its present level;
- forms an essential part of the higher property; and
- prevents the movement of land between the higher and lower properties.
Who should pay?
Both you and your neighbour would usually equally share the cost of building, repairing or maintaining a retaining wall if the wall is necessary for the support and maintenance of a dividing fence between your properties.
If the retaining wall does not support and maintain the dividing fence the situation is different. In this case, the cost of repairing and maintaining the retaining wall will be at the cost of the lower property owner. The responsibility for the cost of building, repairing or maintaining a retaining wall may be determined by looking at various factors such as:
- the reason why building or repairing a retaining wall is necessary
- the actions of the parties involved and
- what is reasonable in the circumstances.
If you are not sure whether a retaining wall is necessary to support or maintain the dividing fence, you should seek legal advice.
What if we cannot reach an agreement?
It is important to talk to your neighbour if you have a problem about a dividing fence.
If you and your neighbour cannot reach an agreement about who should pay for the retaining wall you can try mediation. Mediation is an informal process, where an independent person (the mediator) can help people resolve their dispute.
If after trying mediation, you and your neighbour still cannot reach an agreement, you should serve your neighbour a Fencing Notice. If after one month of serving the Fencing Notice, you and your neighbour still cannot reach an agreement, either of you can apply to the Local Court or the NSW Civil and Administrative Tribunal (NCAT) for Fencing Orders.
If you go ahead and build the fence without an order you cannot legally pursue your neighbour for half of the cost. The court order protects you in this regard.
Council approval
Amongst other requirements, if the retaining wall is higher than 600 mm and it is built on the boundary of two properties, you will need to lodge a development application with your local council for development consent.
This article is for general information only and is not intended as legal advice. If you need specific help, please contact our office.
