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Can a retaining wall be a dividing fence?

Nham & anor v Hayes & anor [2018] NSWCATCD 17

NCAT looked at several issues in this Dividing Fences application, the most interesting one involved retaining walls.

In short, the applicants had served a Fencing Notice under section 11 of the Dividing Fences Act 1991 (NSW) (the Act), which was not agreed to by the neighbours. At the same time the respondents began an action in the Supreme Court of New South Wales substantially in negligence and trespass.

The key issue for the Tribunal was whether the orders sought in relation to a new/replacement retaining wall fell within the definition of fencing work as defined by the Act. Generally, the definition of fencing work under the Act excludes “retaining walls“, except where they are a “…foundation or support necessary for the support and maintenance of the fence” (paragraph (c) of the definition of “fence”).

The Tribunal considered whether the primary purpose of the retaining wall was: 1) to retain soil; or, 2) as a footing/support for the dividing fence. It concluded that the Applicant must bring evidence about whether the retaining wall work falls within paragraph (c). It is not enough to just state what work is proposed. Without evidence the Tribunal could not infer the retaining wall fell within paragraph (c). The application was dismissed.

The Tribunal did not expressly state what evidence would be sufficient, it is likely a suitably qualified expert would be required to show the primary purpose falls within paragraph (c).

Liability limited by a scheme approved under the Professional Standard Legislation

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