Browse Forums General Discussion Re: * out of our land 2Jun 14, 2011 10:26 pm The Harder You Try - the Luckier You Get ! Web site http://www.anewhouse.com.au Informative, Amusing, and Opinionated Blog - Over 600 posts on all aspects of building a new house. Re: * out of our land 3Jun 15, 2011 10:25 am Metricon Riva 33 - http://herlihy-riva.blogspot.com Site start 15/03/2010 - Handover 23/12/2010 9 months and 8 days (284 calendar days) from site start to handover Re: * out of our land 4Jun 15, 2011 11:50 am For info on our build: viewtopic.php?f=31&t=43093 Built the McLaren by Dechellis - slab down 22 Feb - handover 30 Aug 2011 - and gardens finished 9 Dec 2012!! Re: * out of our land 9Jun 16, 2011 3:06 pm Metricon Riva 33 - http://herlihy-riva.blogspot.com Site start 15/03/2010 - Handover 23/12/2010 9 months and 8 days (284 calendar days) from site start to handover Re: * out of our land 10Jun 16, 2011 3:25 pm We have quite a bit of fall on our block & thought about retaining at one point, & as everyone has said it's the person that changes the level of the ground that is responsible. I have found this; An owner who proposes to excavate or fill near a boundary, (work which may be considered to affect the stability of neighbouring land), may need to give the neighbour twenty eight days notice setting out the nature of the work [Development Act 1993 s 60]. The common law can apply in these situations even if the Development Act 1993 does not. Under the common law liability arises for nuisance if a person excavates near a boundary causing the neighbour's land to subside, or if fill collapses onto the neighbour's land, provided this is foreseeable. Liability can be avoided by taking reasonable precautions. This will often involve building a retaining wall, but in some cases a graduated slope with stable batter may be sufficient. If one neighbour fills and the other excavates, both may be obliged to take appropriate precautions and share the cost of retaining work in proportion to the extent to which they each altered the natural lie of the land. Failure to take reasonable precautions may result in liability if the soil collapses and causes damage, even many years later. And this case study' Case Study - Thynne v. Petrie In 1945 Mr and Mrs Petrie bought a block of land adjacent to land owned by the Thynne. They excavated it but due to escalating building prices work on the house never started and the Petries sold their block in 1946. The Thynnes sought legal advice about the excavation and were told they could do nothing until soil was actually lost. From 1968 soil was gradually eroded. In 1974 the Thynnes sought an injunction from the Supreme Court requiring the Petries to build a retaining wall. The present owners did not object provided it did not encroach on to their land. The Supreme Court decided that the Petries could still be liable for creating a nuisance even though they had sold the block, nearly thirty years before. They would be liable every time a fresh subsidence occurred. The Thynnes, however, lost their claim because they stood by and did nothing to combat the erosion. Source: Thynne v. Petrie 1975 Qd.R 260 It would help if you tell us which state, the stuff I have personally relates to QLD & the above info is for SA Bec Re: * out of our land 11Jun 16, 2011 3:50 pm btherl Wait a minute .. so if I go and cut some of my neighbor's land away and build a retaining wall on their property, that's legal? Can I build my shed on their land too? evo550 never said it was legal, just that it happens a lot, which it does. There would have to be at least 20 active topics of posters with issues about the placement of set outs, land markings and especially retaining wall issues. Re: * out of our land 12Jun 16, 2011 3:56 pm chrisandkate btherl Wait a minute .. so if I go and cut some of my neighbor's land away and build a retaining wall on their property, that's legal? Can I build my shed on their land too? evo550 never said it was legal, just that it happens a lot, which it does. Yes they did evo550 Unfortunately your circumstance is an extremely common occurance. Legaly I doubt there's much you can do to change the situation, as the neighbour(or the builder) hasn't broken any laws. I would be contacting your local council, as some DO have definate rules regarding retianing walls (ours does) & then I would probably be seeking some legal advice. As I understand it, it's not just the issue of the retaining wall, they have built it on your land too, yes??? Bec Re: * out of our land 13Jun 16, 2011 7:02 pm btherl evo550 Unfortunately your circumstance is an extremely common occurance. Legaly I doubt there's much you can do to change the situation, as the neighbour(or the builder) hasn't broken any laws. Wait a minute .. so if I go and cut some of my neighbour's land away and build a retaining wall on their property, that's legal? Can I build my shed on their land too? I thought it was common sense that you can't do anything on your neighbour's land except for building a fence on the boundary, and there's a small tolerance allowed for that encroaching on the neighbour's land, but anything more is surely not legal. There's no need for retaining wall laws here - the more general law of what other people are allowed to do with your property is enough. O.K. lets see how I go here. First disclaimer, I'm from S.E. QLD so this may be different in other states. Cammypunk only ownes the land on the common boundary that is ABOVE natural ground level, the builder next door has cut into the land BELOW natural ground level, in essence undercutting but not encrouching, sounds silly I know, but that's how it is. Unless stated in the building approvals the neighbour is not required to install a retaining wall against the cut, usually a simply batter is acceptable, usually walls are only a requirement on the fill side. As I said in my original post, it is an issue that should be addressed at building approval stage, but it has too many variables in getting it right for councils to legislate it, and if it was required, it would just add to delays in approvals and extra costs to the consumer....and we don't want that do we. Re: * out of our land 14Jun 17, 2011 11:05 am brbp Yes they did I really should have read past the bolded below. Sorry I'm on fire with these types of things at the moment evo550 Unfortunately your circumstance is an extremely common occurance. Legaly I doubt there's much you can do to change the situation, as the neighbour(or the builder) hasn't broken any laws. As far as legally goes. In my opinion if they are building outside of the allowable tolerance of the dimensions/positions on the permit, that could be considered illegal. In any case the OP should contact a Lawyer and seek advice in how to have this rectified. There is no way I would let this remain as it stand. Re: * out of our land 15Jun 17, 2011 11:38 am evo550 O.K. lets see how I go here. First disclaimer, I'm from S.E. QLD so this may be different in other states. Cammypunk only ownes the land on the common boundary that is ABOVE natural ground level, the builder next door has cut into the land BELOW natural ground level, in essence undercutting but not encrouching, sounds silly I know, but that's how it is. Ok I think I get it.. because the builder cut only up to the boundary itself, they can argue that they did not do anything directly to Cammypunk's land, even though they did cause him to lose the use of some land. I hadn't understood the original post properly, sorry. What I think I don't understand is why the retaining wall is not on the boundary. I don't get why there isn't enough soil. Metricon Riva 33 - http://herlihy-riva.blogspot.com Site start 15/03/2010 - Handover 23/12/2010 9 months and 8 days (284 calendar days) from site start to handover Re: * out of our land 16Jun 17, 2011 11:45 am Geez - I don't know - my parents built in SE Qld and cut about 1.5m at the boundary - they had to build a retaining wall and on their own land - not the neighbours' land - common sense the law would work that way - you can only build on your own property! 4 14304 Unless there is something in special conditions the builder does not have to give you timeline. If your demolition contractor has not removed Asbestos and it was found… 12 28811 Thanks for the informative response! I'll feed that back to the site supervisor. 2 4128 |