Hi everyone, my name is Tom from OMB Solicitors. I wanted to talk today about an interesting topic that I seem to be coming across a little bit lately, and that is differences between dividing fences, retaining walls and revetment walls. The way I want to start this, I guess, is by establishing the main differences.
In bodies corporates, we have our framework through the Body Corporate Community Management Act, and that actually deals with other pieces of legislation that it references to deal with matters that we see inside bodies corporates that are also common issues dealt with outside of bodies corporates, and one of them is the Dividing Fences Act.
That actually deals with any person who is any property owner in Queensland who owns property and has a dividing fence, which is defined to be a fence that sits between two properties.
The reason we use that piece of legislation in our bodies corporate is because we apply principles from that in our bodies corporates, which obviously deals with not only our boundary of our scheme land and bodies corporates, but also the individual lots and their boundaries too.
When we think about two freestanding homes not inside a body corporate, a dividing fence is obviously going to be one that is separating those two individual freestanding homes.
But in bodies corporates, we will have a varying degree and type of dividing fences. Then we talk and we see matters regarding retaining walls and revetment walls for that matter, actually, and they are not considered dividing fences.
They have a specific structural purpose, and that means that responsibility of revetment walls or retaining walls is quite different. One of the main differences, just so you know, between a revetment wall and a retaining wall is revetment walls, more or less, relate to maintaining the foundation of land adjacent to water.
So, it’s kind of like a water version of a retaining wall. So, going back to fences, what are the general obligations and responsibility? Well, just quickly, we’ll run through those and then I’ll explain the difference, obviously, responsibility for revetment and retaining walls.
But as some general guide and general principles, if there is a dividing fence between two freestanding homes outside of a body corporate, each owner is responsible for 50%.
In a body corporate, if we have a scheme that has a dividing fence between two individual lots in that scheme, it would be the responsibility of those individual lot owners. If that fence is the boundary of the scheme land, the body corporate would be the responsible entity for that fence, along with whoever is the landowner outside of that body corporate.
Then when we have exclusive use areas, that responsibility can change a bit again, whereby the fence will be solely the responsibility of the individual owner who has the exclusive use, as that is that that gives them the exclusivity.
So there can actually be three different types of responsibilities with fences in bodies corporates. In fact, you could have three different sides of a fence in a body corporate that has a different responsibility. So, it can always get a little bit tricky navigating the responsibility of those fences and bodies corporates.
So, please do not hesitate to reach out if you have any questions on that. Moving on to retaining walls and revetment walls, the responsibility lies usually with one party, and that is because but for that retaining or revetment wall being there, the land that is being retained would not be capable of being developed on.
So you might find that the land, let’s say that is a higher land of a lot that sits below it, that retaining wall may have been built specifically for the lower lot development, and that’s because that land was cut into and that land had to be retained to ensure the higher land didn’t obviously fall into the lower lot.
But that’s not always the case, it could be that the lower land was constructed on first and it was actually the higher land that needed the retaining wall.
So, it’s very important to assess where that retaining wall came from, what it was built for and who it was constructed for. It’s usually not necessarily built on the boundary, but built up to the boundary of the land that is responsible for it.
It can get a little bit tricky, especially in bodies corporates, when we have retaining walls that are contained within our standard format plan lots where you own the surveyed lot area and that retaining wall is also on the boundary of the land, and then on top of that, a dividing fence sits on top.
So, those types of matters can get a little bit complicated and we have to break each part of them down. But I wanted just to give you that bit of a general knowledge about the different types of fences, retaining walls and revetment walls, so we understand that there are differences and that they are regulated and looked at a little bit differently in bodies corporates.
But as I say, if you have any questions on those, please do not hesitate to contact us.