Ask Your Mates Open Forum

Private Retaining Walls - risk to persons in road reserve

  • 1.  Private Retaining Walls - risk to persons in road reserve

    Posted 12 August 2018 20:39
    Hi,

    I've recently taken on a new role where I am involved with road asset investigation and the management of Council retaining walls. Recently I was called out to water leaking from underneath a private retaining wall founded on top of a sandstone rock shelf. This is directly adjacent the footpath. I noticed the wall was bulging. Next to this was another seriously unwell retaining wall returning into the private property. An investigation showed the wall was due for replacement 11 yrs ago but due to disputes between the Body Corporates of neighbouring properties the wall has not been fixed. The Council building compliance Manager has told me they won't do anything without a Structural Engineer's report and don't have a budget to obtain one. I engaged a Geotech to assess the wall risk at Council's cost and he also noticed a 7m high 100 yr old sandstone wall further down the street he was concerned about.

    This has highlighted to me the risk of private retaining walls not being managed properly by owners. Of issue to me are the ones adjoining public space and Council assets where we have a duty of care to manage public safety (ie in the road reserve).

    I am wondering whether anyone else has grappled with this issue. My opinion is that taking the position that it is the property owner's responsibility to manage the wall does not pro-actively manage the risk to the public - particularly when Council becomes aware of the issue. Obviously taking this issue on is also opening a can of worms, there are many such retaining walls in the area.

    I'd be interested to know what others think about this. What are the issues? What are your thoughts on the matter?

    ------------------------------
    Matthew Holt
    Construction & Maintenance Engineer
    Northern Beaches Council (NSW)
    t 02 9942 2843 m 0466 926 193

    northernbeaches.nsw.gov.au
    ------------------------------


  • 2.  RE: Private Retaining Walls - risk to persons in road reserve

    Posted 13 August 2018 22:19
    ​My last council took on private landowners in a similar situation - we used the Local Government Act to enforce action by the landowners. Check out the provisions and you can probably enforce repair by the land owners.


  • 3.  RE: Private Retaining Walls - risk to persons in road reserve

    Posted 13 August 2018 22:19
    Hi Matthew.

    Thank you for your post.

    I am currently dealing with a similar situation at Gosford.  I can't go into details at the moment but will post some details in the next couple of days.

    Regards

    Chris Drinan | Slope Stability Engineer | 14/08/2018


  • 4.  RE: Private Retaining Walls - risk to persons in road reserve

    Posted 14 August 2018 02:07
    Hey Matthew.

    The other comment was right. I will break it down a little.

    There are legal obligations arising from planning act and other legislation concerning this.

    If you want to outsource the issue then give it to councils compliance function.

    Usually an inspection by council officers will bring people into action. For those who don't play ball, council can escalate compliance action where there is evidence of a breach.

    This could be statutory notice or even court action.

    Lee


  • 5.  RE: Private Retaining Walls - risk to persons in road reserve

    Posted 14 August 2018 02:07

    Matthew

    I have come across similar examples in our Shire where private retaining walls abutting public land pose a risk and or unsafe conditions.

    Our process generally involves writing to the owner and asking them to repair the structure. When all else fails an order is issued by our Development Monitoring Team under item 21 of the Local Government Act Sect 124.

    Edward Pereira

     




  • 6.  RE: Private Retaining Walls - risk to persons in road reserve

    Posted 14 August 2018 20:50

    Hi Matthew

     

    Have you check the planning permit for the lot? It may include a clause that states "Landowner to maintain the retaining wall". You can use that clause to your advantage.

     

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    James Lio
    Project Engineer

    Engineering and Environmental Services

    Email: james.lio@whitehorse.vic.gov.au

     

    Whitehorse City Council
    379-397 Whitehorse Road Nunawading VIC 3131
    Ph: (03) 9262 6378  |  M: 0458 091 051 | Fax: (03) 9262 6490  

    www.whitehorse.vic.gov.au

     

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  • 7.  RE: Private Retaining Walls - risk to persons in road reserve

    Posted 15 August 2018 22:18
    With regard to your responsibilities by the land owner on the downhill side of a retaining wall (either in a road reserve or private land) you should be aware of the common law of support. In this case it is the downhill owners responsibility is to ensure the integrity of the uphill structure.  If the retaining wall is fully contained upon the uphill land including the footings then that is the uphill owners responsibility. However the downhill owner will always be responsible for ensuring full support in the case of excavating around footing etc.


  • 8.  RE: Private Retaining Walls - risk to persons in road reserve

    Posted 19 August 2018 17:37
    Hi all,

    To be clearer about the issues I am grappling with:-

    Firstly, I have a criminal investigation and compliance background so I am informed by 10+ yrs of experience in this area as to how long processes can take when trying to get recalcitrant business owners or owners to provide reports or do something. It can take a long time. Not helpful in these cases where the goal is to preserve public safety - which require timely actions measured in days and weeks, not months.

    1. I am pretty clear about process to get the wall rectified by private owner. I would just send it to Building Compliance and let them go through the process - orders etc. If it was getting to a point of imminent threat to public I would barricade off parts of the road to create no go zone. Height of Wall + minimum 1.2m - as per Safe Work NSW guildelines for bracing new masonry walls in the wind. The problem with sick retaining walls is who knows when it will decide to 'Total Collapse' especially if it has been looking sick for a long time.

    My strategy to motivate building compliance to take action in a timely manner (and this is a key term for these things 'timely manner') is to pay for a report rather than wait months or never for the owners to do a report. I'll give that report to building compliance which provides evidence to support Emergency Orders etc.

    2. What I was grappling with was the realisation that there could be many of these in the Council area - PRIVATE WALLS - not Council owned retaining walls. As each wall is managed by completely different entities ie a different entity per wall, there would be less certainty that these walls are being managed appropriately. And - if you start looking around when you walk down the street, the picture starts to paint itself for you.

    So what to do?

    *Do you take the line, well it is a massive issue beyond Council's resources to manage or attempt to manage. Rest on the principle that if you don't know about it (the wall and risk) then if it falls and injures people in the public space then the owners are liable. So you only engage with the walls that you become aware of via complaint whether internal complaint or external? This approach is practical and I suspect is the one adopted by most Councils. I would like to hear about this.But.... I believe this process raises moral, ethical and philosophical issues about the role of Council and Professional Engineers in maintaining public safety in public areas owned by Council.

    *Do you attempt some form of risk mitigation - given that it is a massive task and likely beyond resource levels? But it is an obvious risk.
    - I know of one solution - the former Warringah Council had 3 x staff that drove around each street looking for risk problems in the road reserve. That's all they did. The goal was to check every street in the Council at least once per year. Identifying sickly (bulging) private walls bulging into the road reserve would form part of this check.








    ------------------------------
    Matthew Holt
    Construction & Maintenance Engineer
    Northern Beaches Council (NSW)
    t 02 9942 2843 m 0466 926 193

    northernbeaches.nsw.gov.au
    ------------------------------



  • 9.  RE: Private Retaining Walls - risk to persons in road reserve

    Posted 23 August 2018 22:46
    Can anyone please inform me as to the legislative applicability to similar situations in New Zealand

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    Iain Cameron
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  • 10.  RE: Private Retaining Walls - risk to persons in road reserve

    Posted 30 August 2018 01:13
    Hi Iain

    Christchurch CC has a great booklet on who owns and is responsible for retaining walls.
    https://www.ccc.govt.nz/assets/Documents/Environment/Land/RetainingWallsBooklet26Feb2014.pdf
    It contains the line:
    The Local Government Act 1974 allows the Council to determine which structures situated on legal roads it maintains and to what standard.

    I hope that helps

    Andrew

    ------------------------------
    Andrew Edgar | Senior Asset Engineer | Property and Infrastructure
    Queenstown Lakes District Council | P: +64 3 441 0499
    E: andrew.edgar@qldc.govt.nz

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  • 11.  RE: Private Retaining Walls - risk to persons in road reserve

    Posted 19 August 2018 17:38
    Could the Woollahra Council Engineer that rang me by phone please send me an email. I am sorry I forgot your name. I valued our conversation and would like your details. Thankyou.

    ------------------------------
    Matthew Holt
    Construction & Maintenance Engineer
    Northern Beaches Council (NSW)
    t 02 9942 2843 m 0466 926 193

    northernbeaches.nsw.gov.au
    ------------------------------



  • 12.  RE: Private Retaining Walls - risk to persons in road reserve

    Posted 20 August 2018 22:38
    I read this thread with interest and thought I would contribute the following information.

    Our Council recently , 2017,successfully defended an action in the NSW Court of Appeal where a party appealed against an Order under s.124 LGA 1993  associated with the construction of a retaining wall within the road reserve.

    http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2017/343.html?context=1;query=sutherland shire council;mask_path=au/cases/nsw/NSWCA


    Mailey v Sutherland Shire Council [2017] NSWCA 343 (20 December 2017)


    The unsuccessful party sought leave to appeal to the High Court but leave was denied.

    On retaining walls generally the common law of support applies to the natural contour of the land. if a party modifies the contours by cut or fill the party obtaining the benefit of retention of the cut or fill is generally liable for the maintenance and structural integrity of the wall. councils also have the benefit of section 91 of the Roads Act 1993 to protect public roads from loss of support by private property.