Retaining walls – curb your encroachment

By |2022-07-14T12:41:58+10:0014-7-22|

As Larry David says to his girlfriend, Donna, in Curb Your Enthusiasm:


“Encroachment?” she replies.

“Yes, you’re encroaching,” he says.

Now Larry may have been talking about a drink she had placed on ‘his’ part of the plane seat arm-rest, but the same principles (broadly) apply to matters of encroachment for real property.

This was recently highlighted in the, at times, comedic decision of Paridaen & Anor v Mahaside Pty Ltd. Though, I’m sure it was no laughing matter for the landowners who were being encroached on.

The applicants live on a rear ‘battle-axe’ block, with their driveway shared down the middle with another landowner also on a rear battle-axe block, by way of easement. They had been approached by the respondent landowner and developer, whose property abutted the applicants’ driveway, to seek their formal agreement by way of a ‘construction works deed’ to building a retaining wall along the shared boundary (but contained within the developer’s land).

In short:

  1. the applicants wisely procured a survey of the property boundary prior to works commencing to ensure it was built on the respondent’s ‘side’;
  2. the parties’ interpretations of that deed (and ancillary communications) differed, with the court preferring the applicants’ view that “on” the boundary meant that the retaining wall would not go over the boundary onto their property;
  3. it was a condition of the respondent’s development approval that the retaining wall be constructed on the respondent’s land;
  4. once constructed, the respondent obtained a survey which showed the wall, as built, encroached on about five square metres of the applicants’ land;
  5. the parties then met, over which their recollections differed, with the court once again preferring the applicants’ recollection, that they did not realise the wall, as built, encroached until construction had been completed and that the respondent agreed to “make some further enquiries and take some further advice”;
  6. the respondent then contacted their surveyor saying “…I have discussed the plan and encroachments with my neighbour. My neighbour does not have any concerns with the encroachments. Accordingly, could you please proceed in the usual manner…”;
  7. the parties met again and the applicants insisted the encroachment be removed;
  8. the respondent lodged the plan of survey for registration notwithstanding the encroachment and readily apparent dispute;
  9. the court considered it was presented with unsatisfactory evidence regarding the respondent’s (who was not a suitably qualified expert) estimate of costs to remove the encroachment (ranging between $32,000 and $95,000 as the matter progressed); and
  10. consideration was given to the impacts of the encroachment on the future development potential under the planning scheme for the applicants’ land (as well as their obligations under the driveway easement) both of which, in effect, required that the full driveway be six metres wide and remain unobstructed.

In arriving at her decision, Bowskill J placed significant emphases on the lack of credibility of the respondent (in actions and words, including to the court), that the respondent was sophisticated and was the one who had built the retaining wall and the nature of the preceding facts (i.e. the applicants seeking a survey before construction and that there were documents between the parties supporting the applicants’ contentions).

Bowskill J accepted that the applicants had done all within their power to prevent an encroachment and should not be left with the burden of correcting the problems which flowed from it; exercising the courts discretion to order that the respondent must, at their cost, remove and re-construct the retaining wall within the property boundaries. This is a somewhat atypical exercise of the court’s discretion, with orders for compensation and resurvey or easement being much more common outcomes.

Of particular interest is the novel consideration given to future development impacts on the applicants. As one of the applicants said, in evidence, “it is not about [just] a few square metres” of encroachment, emphasising that if it was “a few square metres” somewhere else on his property he would have asked the respondent to give him “a six-pack and [they] would have gone away as friends”. Perhaps this applicant listened to another Larry David quote when he said:

“It’s always good to take something that’s happened in your life and make something of it comedically.”

Whether or not a six-pack would be adequate compensation aside, this case is an important reminder to pay careful attention to development works of your neighbours near and on property boundaries, and, if in doubt, always get a survey!

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Think Property. Think Nicholsons.

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