If a retaining wall has been built on the wrong side of the boundary this sometimes occurs, for example, when a developer has built adjoining properties , two issues arise: who is responsible to maintain the wall, and encroachment.
Regardless of which side of the boundary the wall is, the owner receiving the benefit of the wall is responsible for maintaining it.
Retaining walls come under the Encroachments Act SA , and a retaining wall on the wrong side of the boundary is an encroachment. The Act provides for the adjustment of boundaries or compensation where walls encroach on adjoining land. Neighbours may negotiate to resolve the issue.
If necessary, an application may be made to the General Division of the Supreme Court. If the proposed retaining wall is on the boundary of council land, for example, the footpath reserve, then the whole wall, including the footings, must be on your land and not on council property.
The Planning, Development and Infrastructure Act SA allows for emergency orders to be made if an authorized officer of the local council determines there is a threat to safety arising out of the condition of a retaining wall or an excavation.
A local council will usually only consider making an emergency order in extreme cases. Further, if there is any uncertainty about whose responsibility the work is, a council would normally serve notice on both land owners, as it is not the role of councils to decide whose responsibility it is to perform the work.
An owner can appeal the order within 14 days after the order is received by them or longer if granted an extension by the court [s 11 Planning, Development and Infrastructure Act SA ]. The following disputes are dealt with in the Magistrates Court Minor Civil Action jurisdiction , because they are neighbourhood disputes arising under the common law of nuisance:.
Community Mediation is also available in such matters. Disputes about development applications and prescribed notices issued under s of the Act dealt with in the Environment, Resources and Development Court. While initial advice may be obtained from the Legal Services Commission or Community Legal Services, you may need to see a private lawyer about such matters.
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Dying without a will. Challenging a will. Buying or selling a home. Starting a business. Resolving disputes. Alternatives to court. About News Search. There is a case of Oddy v Phoenix Assurance Co Limited where the judge at the time defined landslip as a small landslide which involved rapid downward movement under the influence of gravity of mass rock or earth on a slope. Most insurance policies will only cover landslip if it causes damage to the retained wall and buildings.
It is important to note the difference here because it is separate from if the retained wall failed due to long term deterioration. In that particular case, the cause of the damage was the failure of the wall as opposed to landslip. The reason we are making this point is it is very important to check with your insurers to see what your policy actually covers, because there is quite a distinction here between a retained wall giving way through deterioration and lack of maintenance and an accidental event such as landslip or heavy rainfall causing the land to unexpectedly slide irrespective of the quality of the retained wall.
Skip to primary navigation Skip to main content Skip to footer Boundary disputes and questions over boundary responsibility often come at a very high cost with sometimes very little reward, so it is important to establish who has responsibility for a boundary. A beautiful fence completes a property in style. We can build new or replace existing fences in any material and style you want!
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