Browse Forums General Discussion 1 Jun 14, 2011 9:56 pm We are building in a new estate. The builder next door started work on their land before we got to ours. As we are on the higher land, the responsibility for the retaining wall has fallen to us. No problem there. Unfortunately for us, the builder cut the land right on the boundary line and even a little over into our land in one part of it (not enough to warrant paying for a survey to be done though ) before we had organised the retaining wall. Because they cut right on the boundary, there's not enough soil for the retaining wall poles (don't know the actual term) to be put into the ground and supported by surrounding dirt. As a result, the retaining wall had to be brought back in on our land a fair bit. The boundary line is on an angle so the gap between our retaining wall and the boundary is a very long triangle that runs the length of the boundary down the side of our house. It starts at about 90cm wide at the front of our house and slowly closes in all the way to the back. Because of the height difference in land, there is now a drop between our retaining wall and the fence that next door put up. It's about 90cm deep and runs along the length of our boundary. I estimate that we've lost about 16 square metres. I'm pretty easygoing most of the time and generally just go with the flow, but I really feel * out of land that we paid for as there is nothing but a ditch there now just waiting for the kids to fall into. This is also along the narrower side of the house where the big round water tank is. The water tank slab was originally going to be about 80cm in from the fence. At this point, by the tank, we've lost about 40cm of width (because there's now a ditch), and so now you have to walk partly on the wall to get around the tank. What can I do? I just want what I paid for. I certainly wasn't expecting to have to watch out for the little kids to prevent them from falling into ditches! And furthermore, we received a notice to fence from the builder (this is being built by a big company to sell for profit) dated 6 June which didn't arrive until a few days later. We had already been out to the land on 7 June and saw that they'd gone ahead and built the fence before we even received the letter, let alone replied! They're idiots if they think I'll be paying for that. I'm not ready to get angry yet, but I definitely feel * and really upset. Re: * out of our land 2Jun 14, 2011 10:26 pm Many states have different laws so you really need to talk to a Lawyer. As I understand the principles: Those who benefit from a change in level have to pay for it. So if they have cut they should be paying for part of the wall with you paying part for any land to be built up above the existing ground level. Where someone needs to excavate unless agreement is made to build a joint wall on the boundary they should have installed a wall on their side of the boundary to prevent your land being lost. 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 I would start by seeing if you can get proof from the fencing contractor of when the fence was built, if you haven't got other evidence already. At least you can make them pay for the full fence if things don't work out. I would do this first in case the fencer and the builder are buddies. Have you discussed this with the neighbouring builder yet? That's the next step, after obtaining evidence. Also, who paid for the retaining wall and who organized its construction? I think the "right" course of action would be for them to remove the retaining wall, fill in the gap, rebuild the wall in the right place and rebuild the fence. You'll probably need a lawyer to get them to do that though. 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 Yes I'd be angry too - it doesn't sound right. I'd be making a fuss and not paying for anything at this stage. Good luck with it! 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 5Jun 15, 2011 12:25 pm Not sure if this is all states, but I have heard that it doesn't matter if you are the higher or lower block, the retaining wall is the responsibilty of the owner who altered the land level. Your neighbour has dug down so sounds like the retaining wall should have been paid by them. I may be wrong tho? Re: * out of our land 6Jun 15, 2011 9:23 pm ^^^ Sounds right to me. From my experience if your neighbour cut into the land to build then all of the retaining wall including the footings should be on their land. None of your land should have been altered in any way and that included the placement of a retaining wall. As for the fence this is now going to be completely wrong as it should have been on the higher level seeing as the retaining wall should have been on their land. It almost sounds like the builder has pulled a shifty with the fence to try and get you to agree without having a say on it's placement or the retaining wall. I'd be confirming all of this with the relevant authority and then taking action - call the council if required. Don't pay or agree to anything. Re: * out of our land 7Jun 15, 2011 10:54 pm 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. It is an issue that should be looked at, at certification/building approval stage, but since most councils shy away from any retaining wall legislation, nothing is done. Your best bet is to approach your neighbour and try and come up with a amicable solution of a common boundary wall, the difficulty is determining who pays for what, percentage wise. You haven't mentioned the total height of the cut and fill, but if worse comes to worse you could retain the whole lot at your expense on the boundary and reclaim your land. Height could be an issue.....with a fence on top. Good luck. Re: * out of our land 8Jun 16, 2011 8:10 am cammypunk We are building in a new estate. Where? There is no location in your profile and knowing what state you are in is a start to getting help with this cammypunk As we are on the higher land, the responsibility for the retaining wall has fallen to us. Incorrect. The responsibility of retaining land falls on the owner who changes the level (cut or fill) If you both modify the level then you both pay, sometimes its 50/50 sometime s not depending on the amount of work you have done. If your neighbors builder or the developer told you this they are most likely doing so to avoid paying for this mistake cammypunk Unfortunately for us, the builder cut the land right on the boundary line and even a little over into our land in one part of it (not enough to warrant paying for a survey to be done though If you paid $150k for a block of 15m wide by 25m deep and lost .65m(roughly 16m2 as you mention later) off one side of your block the relative cost of that land is $6400. The survey will cost you less than $1k and you will be able to chase the other party for legals as well. Looks like its worth it to me. A long story short. Call a lawyer who deals with land disputes. The cost will be worth it in the end. It sounds like a lot of stories but th eproblem is that no one feels they have the time or money to fight it. Get it fixed. It will not be your cost to bare. Re: * out of our land 9Jun 16, 2011 3:06 pm 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. 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 14311 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 28812 Thanks for the informative response! I'll feed that back to the site supervisor. 2 4130 |