Retaining wall - mine backs to Council reserve - do Council have a build contractor?

[mrsaneperson]

Update, just found out today that the retaining wall does not come under the Fencing Act . Payment for the retaining wall belongs only to the person whose land it is retaining. In my case the retaining wall which backs onto council reserve is upholding my land so their is no obligation on council. However if it had been the other way around the Council would have to pay in full without any contribution from me.
I am now facing a huge costing and will look around for a better quotation. If anyone has any recommended contacts for building retaining walls in the Auckland area please let me know.

[Wayne]

Payment for the retaining wall belongs only to the person whose land it is retaining.

Where did you get this from?
Payment for the retaining wall rests with the person who get the beneficial interest.
By way of example if I dig down to create a building pad and therefore need a retaining wall to stop your higher land falling down onto my, now, lower land I can't expect you to pay.
The retaining wall is retaining your land but is for my beneficial interest therefore the cost of maintaining the wall stays with me.

It is all a matter of who put it in - who created the need for the wall.

[artemis]

Where did you get this from?
Payment for the retaining wall rests with the person who get the beneficial interest.
By way of example if I dig down to create a building pad and therefore need a retaining wall to stop your higher land falling down onto my, now, lower land I can't expect you to pay.
The retaining wall is retaining your land but is for my beneficial interest therefore the cost of maintaining the wall stays with me. It is all a matter of who put it in - who created the need for the wall.

I agree, and I thought that is the legal situation, though don't have a citation.

I have a bit of experience though. I live on the side of a hill in Wellington, as one or two other Welly residents do lol. There are retaining walls on 3 sides, involving 4 neighbouring properties plus mine and issues do arise from time to time. It is clear from the contours that in 3 cases it is the downhill property that has excavated to build. Twice the retaining has partly collapsed and the two downhill properties remedied and paid.

The 4th property is a bit less clear as it is obvious the uphill one has been built up as it is flat, and mine (lower) has only been partly excavated as it still slopes. That would be a discussion if there is a future issue, though that retaining is 100 year old concrete and no sign of decay despite loads of earthquakes, fingers crossed.

ETA Most of the retaining is 2+ metres tall, so not itty bitty things.

[mrsaneperson]

Where did you get this from?
Payment for the retaining wall rests with the person who get the beneficial interest.
By way of example if I dig down to create a building pad and therefore need a retaining wall to stop your higher land falling down onto my, now, lower land I can't expect you to pay.
The retaining wall is retaining your land but is for my beneficial interest therefore the cost of maintaining the wall stays with me.

It is all a matter of who put it in - who created the need for the wall.

I see where you're coming from. In my case my property is only one of around 12 others seated around the reserve that has a retaining wall. When i look at the land of my property we are only talking about a 1M retaining wall at the reserve end which in effect could be said to be a natural contour consequence. At the top end of the property going away from the reserve the land is raised by around 30cm compared to the neighboring property. Do you think I could challenge the council on this? That the retaining wall at the end of my property is as a consequence of them moving landfill from the reserve at the time of its construction - therefore they would be responsible by their own reasoning for the entire cost of the retaining wall?
There is a fence that sits on top of the retaining wall , council have agreed to go 50% share with this up to a maximum measly $40 per linear metre.

How would one be able to examine such records even if they existed?

[Wayne]

I agree, and I thought that is the legal situation, though don't have a citation.

Two interesting opinions
http://www.lawhandbook.sa.gov.au/ch31s04.php Australian but I expect it applies here
http://www.justanswer.com/newzealand...adjoining.html NZ but not clear as it says "uphill side has the main obligation to prevent their side slipping downhill" but the person asking the question was uphill and it was supporting their drive - no indication of who cut or filled.

[mrsaneperson]

Interesting. One claims that a retaining wall is covered under the Fencing Act and therefore 50% contribution by both parties. The council man I am dealing with is saying the retaining wall does not come under the fencing act.

[artemis]

I see where you're coming from. In my case my property is only one of around 12 others seated around the reserve that has a retaining wall. When i look at the land of my property we are only talking about a 1M retaining wall at the reserve end which in effect could be said to be a natural contour consequence. At the top end of the property going away from the reserve the land is raised by around 30cm compared to the neighboring property. Do you think I could challenge the council on this? That the retaining wall at the end of my property is as a consequence of them moving landfill from the reserve at the time of its construction - therefore they would be responsible by their own reasoning for the entire cost of the retaining wall?
There is a fence that sits on top of the retaining wall , council have agreed to go 50% share with this up to a maximum measly $40 per linear metre.

How would one be able to examine such records even if they existed?

You could make an official information request under the LGOIM Act for details of what was done when the reserve was created, specifically what excavation and filling was carried out, whether the council designed, erected and / or signed off the retaining, costs and who paid. If you ask specifically in relation to your property you would probably be told to check your property file. But if you restrict the request to council owned property, they have a responsibility to find and provide the information. That's the theory anyway.

And at least it will put the onus back on the council to investigate and respond in a specific time frame. Even if they can't locate the information eg time has passed, the archives building burned down .... , it gives you more ammo for a case to at least share costs.

See FYI.org.nz for how to.

ETA Also ask for a copy of the council policy on maintenance and responsibility for retaining walls on or adjoining council land.

[Wayne]

Interesting. One claims that a retaining wall is covered under the Fencing Act and therefore 50% contribution by both parties. The council man I am dealing with is saying the retaining wall does not come under the fencing act.

And the 2nd article supported this view
"christhelawyer : I am not sure I agree with that view. A fence is defined in the Fencing Act and a retaining wall is a different sort of structure. "

[mrsaneperson]

And the 2nd article supported this view
"christhelawyer : I am not sure I agree with that view. A fence is defined in the Fencing Act and a retaining wall is a different sort of structure. "

It would seem to boil down to 3 scenarios:

1. Council leveled the land in the reserve at that point where my property borders the reserve, thereby creating the need for a retaining wall payable by them - provable only by records which probably do not exist

2. The original owner of my property back-filled the land thereby creating the need for a retaining wall payable by me . The property was built in the 80's. Again I am unaware of any records if they do exist that would show this.

3. The situation regarding who created the need for the retaining wall is indeterminate . In which case each party would contribute 50%.

I would vie for no3 as best all round option in the absence of land alteration records.

[John the builder]

is the wall on the boundary is the first question?

If inside you own it and are resonsible if outside they owner it if on then you share?

[mrsaneperson]

is the wall on the boundary is the first question?

If inside you own it and are resonsible if outside they owner it if on then you share?

It would seem to be on the boundary - this is not in dispute. The council are still sticking to their guns that as the retaining wall is holding in my dirt from falling into the reserve then that is my responsibility. I am battling them on this as I have now looked at my plans and their is no indication of any dirt being piled on top to increase height above the natural contour of the land, so therefore in the absence of the land records for both council and myself showing no removal or addition of soil that would have led to the need for the retaining wall then we should go 50/50. What does anyone else think?

[Wayne]

so therefore in the absence of the land records for both council and myself showing no removal or addition of soil that would have led to the need for the retaining wall then we should go 50/50. What does anyone else think?

Sounds like fair reasoning.
Getting the council to see that is another story as you have found.

[mrsaneperson]

Update on this . I requested and viewed the archive information for the reserve - thank you Artemis who suggested this - and was able from observing the diagrams and photos taken that the whole subdivision and reserve were previously a substantial contoured area of rises and falls . Council had ordered the developer to level and fill certain areas of contoured land which included mine and the reserve; in essence creating along the way the need for the retaining wall for my property bordering the reserve. After several lengthy attempts to persuade Council to see logic and contribute to the retaining wall they attempt to turn everything around to try and support their own position as well as conveniently ignoring facts presented that show errors made in their assessment . It is disappointing when considering these people employed to represent local government are not acting in the interests of amenable solutions , increasing the need for additional ratepayer funded expense .
May end up in Disputes Tribunal . If anyone has any useful information on retaining wall disputes - I'm sure there are multiple - or anything relevant , please PM or post here