It is not uncommon for disputes to arise between neighbours in relation to an issue occurring at the boundary line of their properties.
One such type of dispute which often arises concerns who is liable to pay for a retaining wall or fencing work.
The case of Nham & anor v Hayes & anor  NSWCATCD 17, sheds light on how such disputes may, or may not, be resolved.
In this case Nham sought payment from Hayes for 50% of the cost to construct a new boundary fence and a retaining wall pursuant to the Dividing Fences Act 1991.
Nham did not succeed in the claim as it was found that the retaining wall was not necessary to provide a foundation for the fence or to support the fence.
The Tribunal reasoned that:
- The Dividing Fences Act 1991 applies to work which involves the design, construction, replacement, repair or maintenance of whole or part of a dividing fence.
- If the work required also involves work on the foundation or support for the fence this work is considered to be fencing work.
- A retaining wall may provide part of the foundation or support required, however the whole of the retaining wall work may not be necessary for this purpose.
- A neighbour may not be obligated to pay any amount for the retaining which is not necessary for the foundation and support of the fence.
- The person making the claim for the fencing work should ensure that they do not claim for work on the retaining wall which is not a foundation or does not support the dividing fence.
- As Nham did not separate out in her quotations the partial cost of the retaining wall which did relating to the foundation and support of the fence, Nham’s claim failed in its entirety.
It is important to note that there are other laws which also apply to boundary disputes such as the Conveyancing Act 1919 and the Trees (Disputes Between Neighbours) Act 2006 and that legal proceedings in relation to retaining walls will need to brought in the Supreme Court of New South Wales.
If you are looking to recover the cost of a retaining wall, the Dividing Fences Act 1991 may not be the best way of approaching such a clam.
Please review my other articles in relation to retaining walls for more information.
The information provided in this article is general information only and should not be relied upon as legal advice or be used as a substitute for obtaining legal advice. The specific circumstances relating to you impact upon your legal rights and obligations and personal legal advice based upon your circumstances should be obtained. This area of law changes frequently and the law may have changed after the time this article was prepared, up-to-date legal advice should be obtained. Please do not hesitate to contact Williamson Lawyers if we may be of assistance.