Retaining Walls and Encroachments in Queensland

The material facts of this case were (in summary) as follows:

• the applicants (home owners) and the respondent (a developer) owned adjoining land;
• the respondent purchased its land with the intention of subdividing it;
• the subdivision works included the construction of a retaining wall along the side of a driveway located wholly inside the applicants’ land;
• following the construction of the retaining wall, it was discovered (which matter was not in dispute between the parties) that the retaining wall encroached onto the applicants’ land along driveway as much as 10 to 13 centimetres over the common boundary at some points;
• the applicants filed an originating application with the Supreme Court of Queensland seeking Orders, pursuant to section 184 of the Property Law Act 1974 (Qld), that:
  • within a specified period of time, and at its own cost, the respondent remove entirely that part of the retaining wall (including footings) which is constructed over the boundary, and on the applicants’ land, and reinstate the retaining wall entirely within the respondent’s land; and
  • upon completion of those works, the respondent obtain a survey to confirm the encroachment has been removed.

Section 185 of the Property Law Act 1974 (Qld) provides that the Supreme Court of Queensland, on an application made pursuant to section 184 of that Act for relief in respect of an encroachment, has the following powers to decide the application:

185 Powers of court on application for relief in respect of encroachment

• On an application under section 184 the court may make such order as it may deem just with respect to:
  • the payment of compensation to the adjacent owner; and
  • the conveyance, transfer, or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest in the land or of any easement, right, or privilege in relation to the land; and
  • the removal of the encroachment.
• The court may grant or refuse the relief or any part of the relief as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider, amongst other matters:
  • the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be; and
  • the situation and value of the subject land, and the nature and extent of the encroachment; and
  • the character of the encroaching building, and the purposes for which it may be used; and
  • the loss and damage which has been or will be incurred by the adjacent owner; and
  • the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment; and
  • the circumstances in which the encroachment was made.

The applicants submitted to the Supreme Court of Queensland that the circumstances leading to the encroachment are the “most relevant factor”, including the following factors:

• the encroachment is in breach of the respondent’s development approval;
• the encroachment is inconsistent with the plans attached to the Construction Works Deed and the respondent’s obligations under the Deed;
• the encroachment occurred despite the applicants taking care to identify the boundary before construction occurred;
• the respondent at first ignored the encroachment, and subsequently refused to remove it;
• the respondent is a sophisticated developer, and its director, an engineer; whereas the applicants are unsophisticated people who expected the respondent to act properly and not compromise their interests;
• the respondent wrongly stated to the surveyor that the applicants had no concern with the encroachment, and for the surveyor to prepare compliance plans, knowing the retaining wall could not be certified as compliant with the development approval;
• the retaining wall is a potential impediment to further development of the applicants’ land (because it reduces the width of the access below the minimum required for a “rear” block); and
• the encroachment impedes a right-of-way easement with a third party, namely, the adjoining owner on the other side.

The respondent submitted that the Supreme Court of Queensland ought to exercise its discretion by dismissing the application, having regard to the following factors:

• the size of the encroachment (5sqm) is minor in the context of the length of the applicants’ driveway overall (70m);
• the encroachment is trifling and has no serious effect on the use and enjoyment of the applicants’ land because:
  • the part of the applicants’ lot that is subject to the encroachment is not “usable land”; it can only be used as a driveway;
  • there is no evidence to suggest the small area of land covered by the encroaching wall has any real measurable value; and
  • there is no evidence to suggest the encroaching wall actually prevents the applicants from doing anything with their lot;
• the applicants consented to the wall being constructed partly on their land;
• it would involve significant work and cost to remove it; and
• if the court is not minded to dismiss the application, the court ought to make an order that the respondent be granted an easement over the part of the applicants’ land where the encroachment is situated.

The Supreme Court of Queensland imposed Orders that the encroachment be removed.

The Supreme Court held that:

• the discretion conferred by section 185 of the Property Law Act 1974 (Qld) is very wide, with the relevant factors not limited to those set out in section 185(2) of that Act;
• other factors which have been identified as relevant include:
  • whether the applicants obtained a survey at an early stage;
  • the conduct of the parties, particularly conduct giving rise to the encroachment; and
  • whether the encroaching owner was aware of the fact of the encroachment at the time of the construction;
• it is that conduct on the part of the applicants, prior to the works commencing, and the conduct of the respondent before and after, by its director, that ultimately leads the Court to the view that this is a case in which the discretion under section 185 ought to be exercised by making an order for the removal of the encroachment;
• the applicants could not have done more to try to protect their property interest;
• if they had been asked to agree to an easement over a portion of their driveway, the Court finds, on the evidence before the Court, that there is no doubt that the applicants would have refused;
• they did not want any part of the respondent’s development to encroach on their boundary;
• the Court can see no reason why the respondent, in the face of its letter to the applicants; the development approval; the approved plans; and the Construction Works Deed, all of which contemplated a rock wall that went up to, but not beyond, the boundary, should be given the seal of the Court’s approval and permitted to have the benefit of the rock wall encroaching on the applicants’ land (which it seems was the result of being constructed by a contractor without proper regard to the surveyed boundary), whilst the burden of that falls wholly on the applicants;
• that would not be just, given all the circumstances of this case; and
• the encroachment may not be significant to the respondent, but on the evidence of the applicants, which the Court accepts, it is clearly significant to the applicants.

If you need legal advice or assistance with retaining walls or encroachment disputes, please contact ADVIILAW today to speak to one of our experienced property dispute 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.

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