Retaining Wall Disputes in Queensland

Generally, if your retaining wall is less than one (1) metre high from the natural ground level, then you do not need planning and/or building approval. However, there are various planning controls and building regulations which may require that you obtain planning and/or building approval for your specific retaining wall. The legislation for planning and building controls in Queensland (such as the Planning Act 2016 (Qld), the Building Act 1975 (Qld), the Building Regulation 2021 (Qld), your local Council Neighbourhood Planning Schemes and Other Development Codes) are not without significant complexity and you should contact your local Council or speak with a suitably qualified lawyer, town planner and/or building certifier for advice specific to your retaining wall before constructing the retaining wall.

For example:

• a development application for building approval will generally be required where the retaining wall:
  • has a surcharge loading over the zone of influence for the retaining wall (noting that zone of influence, for the retaining wall, means the volume of soil stratum behind the wall that affects the wall’s structural integrity);
  • the total height of the retaining wall and of the fill or cut retained by the retaining wall is more than 1 metre above the natural ground level; or
  • the retaining wall is closer than 1.5 metres to a building structure (for example, a swimming pool or another retaining wall);
• a development application for planning approval may be triggered depending on the type, nature and location of the retaining wall, in circumstances which include, without limitation, the following scenarios:
  • if the site is located within a character zone or on a character listed property;
  • if the site is affected by a development constraint overlay;
  • if the building or structure does not comply with the design criteria detailed in the residential code or the conditions of a development permit;
  • if the proposed retaining wall does not comply with all siting and boundary setback requirements;
  • if the proposed retaining wall is associated with the development of a dwelling house on a small lot;
  • if the proposed retaining wall is associated with the subdivision of a site, particularly a site with a slope;
  • if the proposed retaining wall is associated with the filling or excavation exceeding thresholds identified in any filling and excavation code; or
  • where Council considers that the proposed retaining wall may have an adverse effect or impact on the amenity, or likely amenity, or the character, of the locality or the neighbourhood.

Most clients we see have already “jumped the gun” and constructed a retaining wall without obtaining building and/or planning approvals (if required), without obtaining the neighbours’ consent (if required), without undertaking a boundary identification survey (clearly identifying the common boundary line dividing the neighbouring properties), and without obtaining legal and other professional advice before incurring what may be substantial costs of construction (which makes the task of finding a practical and cost effective solution to the dispute all the more difficult).

The minimum setbacks and boundary clearance requirements are generally described in the relevant Council planning scheme for your area (including any building envelope/setback plans approved as part of the development approval for the land development area in which your property may be located). Accordingly, it is important to consult the planning scheme requirements relevant to you very carefully (and seek legal and town planning advice about these matters if possible).

For example, the minimum boundary setback for the front boundary maybe 6 metres and 1.5 metres for the side and rear boundaries. The aforementioned setback requirements may, of course, be different for your specific area. Where a retaining wall is higher than 1 metre above the natural ground level, it will generally require a siting variation if the proposed location of the retaining wall does not comply with the required boundary setbacks (which, in turn, may trigger the need for a development application seeking approval to the siting variation to be lodged with Council).

Retaining walls below 1 metre in height may, in certain circumstances, be built up to the property boundary. But again, you should ensure that you have this verified by professional advisors if possible, before you undertake any such construction works. There may be serious consequences for failing to comply with legal setback requirements. As mentioned above, if it is not possible to comply with the prescribed setback distances, it may be necessary to make an application for alternative siting approval to Council. Some properties may also be subject to a building envelope/setback plan, approved as part of the land development for the area.

In these circumstances, an alteration to the development approval may be required for the construction of a retaining wall which does not comply with the prescribed setbacks. If, for example, it is considered that the proposed retaining wall will have an adverse impact on the neighbourhood, the approval may not be granted, although there may be other reasons as well for refusing the application. Furthermore, in some cases, it may be necessary to obtain the written consent of neighbouring landowners prior to undertaking the construction of the retaining wall.

The law in this area is not without various complexities and many issues may need to be considered. For example:

• in which owner’s lot is the retaining wall located; or
• is the wall sitting squarely on the common boundary line dividing the properties; or
• is the wall located substantially in one property and partially in the other (in circumstances where it should not be transgressing the common boundary at all, so as to be constituting an encroachment into the innocent owner’s lot).

Furthermore, for what purpose (or for whose benefit) was the retaining wall constructed, which may give rise to the following relevant considerations:

• was the retaining wall constructed to hold fill for the neighbour on the higher property (in order to allow them, for example, to level out their land so it is no longer sloping downhill); or
• was the land cut in by the neighbour on the lower property (in order to allow them to build their house, garage, drive way or any other building structure, on a flat lot); or
• do the neighbours receive an equal or shared benefit from the retaining wall; or
• perhaps one neighbour receives a higher benefit than the other, such that the responsibility for the retaining wall ought to be apportioned between the parties; or
• perhaps one neighbour is causing damage to the retaining wall due to issues emanating from their land (such as, without limitation, trees, branches, underground roots, stormwater overflow, soil surcharges and other factors).

Unlike issues relating to dividing fences and trees (which are governed by legislation known as the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), which clearly sets out the rights and obligations of the parties in respect of such matters), disputes regarding retaining walls are decided on the basis of broader Judge made legal principles, such as the duty of one neighbour to take reasonable steps to avoid causing reasonably foreseeable harm to the other, the law on land fixtures, and the duty to withhold soil, which are also the law, but are published in cases (although some principles have been given the force of law under legislation passed by Parliament, such as the Property Law Act 1974 (QLD)).

Each case will turn on its own facts as to which neighbour (and to what extent) has responsibility to maintain, repair and/or replace a retaining wall (including any associated dividing fence).

This will largely depend on the specific issue/s affecting your case, but let us say you believe that a severely deteriorated retaining wall is not your responsibility as it is located wholly within your neighbour’s lot and you derive no benefit from the retaining wall whatsoever, as it holds fill and no cut-in ground for the benefit of your property located lower on the natural slope of the land.

In the circumstances, you may need to obtain (but remembering you should first obtain legal advice if you can as it may spare you from incurring unnecessary costs):

• a copy of any development application, planning and/or building permits/approvals for the retaining wall, including, if possible, the actual certified plans, drawings and specifications for the retaining wall, or if the retaining wall was approved as part of the larger or overarching development works, such as the building of a residential or commercial building on the lot, the reconfiguration of the lots, any operational works undertaken on the lots or as part of the development envelope of conditions approved by the local Council for the development area, then a copy of those approved plans and related documents, as well as private certifier inspection certificates (both interim/aspect and final inspection certificates) that may be available for the retaining wall, by conducting a search of the Council records, and even paying for the Council searches if necessary, as the records may contain essential information regarding the purpose and the location of the retaining wall;
• a boundary identification survey from a cadastral surveyor (which will identify the precise location of the retaining wall with respect to the common boundary line, including, in the usual course, the existence of any encroachments);
• a causation and damage report from a suitably qualified engineer to identify the cause of the deterioration to the retaining wall (which may require your neighbour’s consent);
• a soil test report from a suitably qualified engineer to determine the depth of fill to cut ratios and measurements of the retaining wall (which may require your neighbour’s consent);
• any written agreements, correspondences, or anything in writing, that may exist evidencing the purpose of the retaining wall (as may have been, for example, agreed between the previous owners of the lots); and
• a building quote for the repair or replacement of the retaining wall (including any associated dividing fence).

There may well be a need to obtain other professional reports (or the strategic need to undertake additional or different steps in the matter) depending on the nature of the issues. However, at times, it may be possible to resolve the dispute without outlaying thousands of dollars on procuring this evidence, so speaking with your lawyer early in the matter is to be recommended.

There are many options available for resolving a retaining wall dispute, each with varying degrees of complexity, formality and cost. For example:

• as the first step, you may consider reaching out to the neighbour to agree in respect of the maintenance, repair or replacement obligations of the parties in relation to the retaining wall and any associated dividing fence and/or encroachments (without the need for third party intervention). However, you should be wary of dealing with your neighbour in the absence of legal representation as you may say or do something which may prejudice your case; or
• invite the parties to attend an external dispute resolution conference (usually free and held without lawyers) with the benefit of a third party mediator whose role is to assist the parties identify a possible solution to the problem (but again, such discussions should be approached with caution and at least with the benefit of legal advice obtained beforehand, so that you understand the strengths and weaknesses of your position, which will instruct the conduct of your negotiations); or
• engage a suitably qualified lawyer to represent you and negotiate on your behalf directly with the neighbour (or the neighbour’s legal representatives) with a view to resolving the matter as quickly and efficiently as possible (and if required, documenting the terms of any agreement in a formal deed);
• depending on the nature of the issue/s (and whether, in the context of your case, considered as a whole, it makes practical, commercial, intelligent, short-term and long-term, sense to undertake the action):
  • in limited cases, refer the matter to Council for investigation;
  • in limited cases, refer the matter to the Queensland Building and Construction Commission for investigation;
  • in limited cases, lodge a claim with the Queensland Civil and Administrative Tribunal for determination (which disputes are generally resolved without lawyers, but which determinations are nonetheless binding on the parties); or
  • initiate Court proceedings against the neighbour in order to have a Judge finally rule on the matter, with the benefit of legal representation, and an opportunity to recover damages, legal costs and other Orders as the Court may think fit.

Going to Court should only be an option of last resort, but at times, it may not be possible to sensibly negotiate with the other party as they may be unreasonable, unfair, if not unconscionable in their dealings with you. Despite what step you take, what is paramount is that you have a clear strategy and budget in place to see the dispute through to finalisation.

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If you need legal advice or assistance with retaining wall rules and regulations, or retaining wall disputes, please contact ADVIILAW today to speak to one of our experienced lawyers. Contact us on 07 3088 7937 or email us at [email protected].

This commentary is of a general nature only, containing some general information for the reader.

It is not intended to be legal advice, nor can it be relied upon as legal advice, as each case will depend upon its own specific facts, matters and circumstances.

To this end, please kindly read our Website Terms including the disclaimer contained therein carefully. Laws, rules and principles may be subject to sudden and unexpected changes and you should always consult a lawyer about your specific circumstances before committing to a course of action.