Asset Management

Retaining Walls Ownership

  • 1.  Retaining Walls Ownership

    Posted 24 February 2013 19:24
    Does anyone have any information about how ownership of retaining walls is determined when located on boundaries between 1.Council parks and private property and 2. Road reserves and private property?

     Our initial understanding is that responsibility for the structure rests with whichever property benefits from the wall, but we would like further clarification and information if available.

    Liz Paterson
    Open Space Assets Co-ordinator
    Willoughby City Council
    CHATSWOOD NSW

    -------------------------------------------
    BlogPageSpacerBlank


  • 2.  RE:Retaining Walls Ownership

    Posted 26 February 2013 06:45

    Hi Liz,

    At Wollongong we've previously discussed this with our legal and agree with your definition; "whichever property benefits" ... but interpreting that aint always simple...

    -------------------------------------------
    Tim Cornford
    Asset Manager Transport
    Wollongong City Council
    SOUTH COAST MC NSW
    -------------------------------------------






    BlogPageSpacerBlank


  • 3.  RE:Retaining Walls Ownership

    Posted 28 February 2013 00:16

    CONVEYANCING ACT 1919 - SECT 177

    Duty of care in relation to support for land

    177 Duty of care in relation to support for land

    (1) For the purposes of the common law of negligence, a duty of care exists in relation to the right of support for land.
    (2) Accordingly, a person has a duty of care not to do anything on or in relation to land (the "supporting land") that removes the support provided by the supporting land to any other land (the "supported land").
    (3) For the purposes of this section, "supporting land" includes the natural surface of the land, the subsoil of the land, any water beneath the land, and any part of the land that has been reclaimed.
    (4) The duty of care in relation to support for land does not extend to any support that is provided by a building or structure on the supporting land except to the extent that the supporting building or structure concerned has replaced the support that the supporting land in its natural or reclaimed state formerly provided to the supported land.
    (5) The duty of care in relation to support for land may be excluded or modified by express agreement between a person on whom the duty lies and a person to whom the duty is owed.
    (6) Any such agreement:
    (a) has effect in relation to any agent of the person on whom the duty lies, and
    (b) has effect in relation to any successor in title of the supported land if the agreement is embodied in a registered easement for removal of support relating to that land.
    (7) The right to agree to the removal of the support provided by supporting land to supported land is a right of the kind that is capable of being created by an easement.
    (8) Any right at common law to bring an action in nuisance in respect of the removal of the support provided by supporting land to supported land is abolished by this section.
    (9) Any action in negligence that is commenced after the commencement of this section in relation to the removal of the support provided by supporting land to supported land may be wholly or partly based on something that was done before the commencement of this section. However, this subsection does not operate to extend any period of limitation under the Limitation Act 1969 .
    (10) This section extends to land and dealings under the Real Property Act 1900 .
    (11) This section does not apply in relation to any proceedings that were commenced before the commencement of this section.
    (12) A reference in this section to the removal of the support provided by supporting land to supported land includes a reference to any reduction of that support.
    The above extract confirms your logic that responsibility rests with the property benefited.

    -------------------------------------------
    John Earls
    City of Canada Bay Council
    DRUMMOYNE NSW

    -------------------------------------------






    BlogPageSpacerBlank


  • 4.  RE: Retaining Walls Ownership

    Posted 18 November 2018 16:02
    Report 84 by Law Reform Commission which proposed changes to Conveyancing Act. Very interesting read around law of support.

    Law of Support - Report 84 - NSW Law Reform Commission

    Posted for future reference


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

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

    BlogPageSpacerBlank


  • 5.  RE:Retaining Walls Ownership

    Posted 28 February 2013 00:17
    Refer to Sect 177 of the Conveyancing Act.
    It gives some guidance about responsibility, duty of care & ownership regarding removal of natural support.

    -------------------------------------------
    Adam Mularczyk
    Team Co-ordinator Development Engineering
    Wyong Shire Council
    WYONG NSW

    -------------------------------------------






    BlogPageSpacerBlank


  • 6.  RE:Retaining Walls Ownership

    Posted 28 February 2013 00:17
    The Roads Act 1993 Clause 91 refers to land adjoining public roads.

    91 Adjoining landowner to provide support for public road

    (1) The duty of care in relation to support for land as referred to in section 177 of the Conveyancing Act 1919 applies in relation to land on which a public road is situated and land adjoining that land as if the land on which the public road is situated were private land and the appropriate roads authority were the owner of that land.

    The adjoining landowner is responsible for supporting the land that contains a public road. That implies forever.
     

    93 Roads authority may direct landowner to fill in excavation

    (1) A roads authority may direct the owner of any land adjoining a public road to fill in any excavation that, in the opinion of the roads authority, threatens the stability of the public road.

    (2) The direction may specify the period within which the direction must be complied with.

    This looks as if the roads authority (council) does not have to retore support for the road if the landowner changes levels of adjoining land. Useful for deep excavations that threaten road stability - fill in or landowner could provide remedial support.

    Many years afterwards it may be hard to see who was responsible for originally building support such as a retaining wall.

    -------------------------------------------
    Grant Sheldon
    Managing Director
    Sheldon Consulting Pty Ltd
    Northbridge NSW

    -------------------------------------------






    BlogPageSpacerBlank


  • 7.  RE:Retaining Walls Ownership

    Posted 28 February 2013 23:56
    Dividing fences Act,

    Does the "Who Benefits" clause for retaining walls apply to fences between private property?

    (1) My thoughts are to workout where the natural surface was originall.  Then the person that bulids above or below the natural surface is responsible for the retaining wall?  If it is half half then there is a shared responsibility.  The retaining wall is built on the boundary line.  If the retaining wall is more than 300 mm of the fence line then the retaining wall is owned by that property.

    (2) My first case was when the neighbour built a new house close to the boundary.  He first action was to undercut the boundary line by two metres.  I phoned Council and Council made him build a retaining wall at his cost.  Do I have a case to take him to task over the cracked concrete in my garage that was a result of the under cutting of the boundary line?

    (3) My second case was on the other neighbour side when the railway sleeper retaining wall failed.  This retaining wall was built by the previous owner of the neighbours property.  Since it was the neighbours retaining wall it was the property of the neighbour.  I would have no right to repair that retaining wall?  Nor any cost too?

    Any comments much appreciated.

    Local Authorities hate to get involved in any of these fencing problems.

    Cheers

    John Keays

    -------------------------------------------
    John Keays
    Owner
    Keays Software
    Brisbane Queensland

    -------------------------------------------






    BlogPageSpacerBlank