Neighbour wants me to build retaining wall etc

Hi all,

My neighbour stuck his head over the fence the other day to ask me if he could trim a tree of mine that overhangs his property as it is dropping leaves on his lawn. I thought that was fine until he said 'at your expense'. He also went on to say that water from my property was flooding his rumpus room but couldn't tell me what evidence he has to lead him to that conclusion. He suggested I might like to hire a plumber or engineer to find out and asked me to build a retaining wall to fix the problem.

This is the first contact I have had with the neighbour since moving into the property in November and was quite taken aback by his forthrightness.

I told him I would think about it and get back to him and he told me I could only take a couple of days to make a decision.

Now, I've checked the Legal Services Commission SA website and found the info I was looking for regarding the tree (my suspisions were correct, he can cut but limb removal is at his expense) but I cannot find anything specific to the retaining wall. What I could find indicated to me that I would be liable if I created an easement which lead to increased water flow to his property. This has not occured while I have been there. I believe it is just the slope of the land.

Has anyone else had a similar issue? Is there something I am overlooking or do you agree with my understanding of the legal liability statement (below):
WATER
Generally legal liability does not attach where water flows naturally across a boundary (as a result of rain, floods, or the slope of the land). If the flow of water is caused directly or indirectly by a neighbour's activities, the occupier may be able to take legal action to stop it happening again and for compensation for any damage caused. A drainage easement (normally registered on the land title documents) gives a person the legal authority to direct water onto another's land.

If there is no permission an occupier has a right to sue:

where the flow is intentional (that is, a trespass), for example, if a neighbour deliberately directs a hose on to the occupier's land
where the flow is caused by the neighbour's negligence and it causes damage, for example, because of the careless construction of a tank or dam, or leaving the hose on
where the flow occurs as the result of another activity and constitutes a nuisance - for example, through a fixed garden sprinkler, overflowing drains and downpipes, running taps, modification of normal watercourses, or the cementing of large areas.
Problems can also arise where neighbours share a stream, lake or other waterway and one person's activities pollute the water. A complaint should be made to the local council, which has power to control water pollution. Complaints can also be made to the local Natural Resources Management Board.

Bennetts v. Honroth
Two parties were neighbours. The defendant had erected a garage and slate paved driveway which substantially increased the flow of stormwater. The existing sump and drain were unable to cope with all the water and some flowed under the fence onto the plaintiff's land. The plaintiff claimed damages and an injunction.

The Supreme Court said the case should never have gone to court. The defendant could have stopped the excess stormwater going onto the plaintiff's property by adoption of simple and inexpensive precautions. Because he was unreasonable in not stopping the nuisance the defendant had to pay for the damage caused. An injunction was not granted though because the interference with the plaintiff's rights was trivial.

Source: Bennetts v. Honroth [1959] SASR 170
 
Just read this. Didn't see it when it was posted.

We have had experience with this before. One IP we have is on the side of a hill, about six properties from the ridge, with slope front to back as well. There are another six or eight houses further down and we owned the one at the very bottom. It is earmarked as possibly having overland flow problems, but in ten years, this has never been an issue, and it didn't stop our buyers from buying it just recently.. Obviously rainwater runs down all the yards, but our downhill neighbour decided that the stormwater from "our" house was causing their foundations (timber house on stumps) to deteriorate :eek:.

We had our stormwater checked by our plumber, who confirmed that all pipes were blocked from 70 years of use and it was much cheaper to run new poly pipe from each downpipe into a meter cubed rubble pit. This is what council required and this is what we did. He did say that it would silt ip and be like many, many other similar situations within a few years.

Anyway, this same IP, same neighbours we had another issue, caused by us where we raised the level of the very low back yard with some soil we needed to find a home for. They complained to council, council chap came out, told us he was actually on our side and they didn't really have a case. The fill was not encroaching on their yard but we chose to lose any doubts because we hadn't known we should have applied for a permit to place the fill in the yard, and had a retaining wall built and we pushed the fill into the wall (kept it at 1m to avoid having to have it engineered) and got ourselves a much better, flatter yard.

We also have an IP that is owned by Dad where the uphill neighbour concreted his yard, directing his water into the IP yard, causing quite a lot of problems. Council came out, directed uphill neighbour to rectify the problem and install drainage to stop it happening.

I would get council involved. I would guess (but who knows?) that if you have not altered the slope of the land that the water has always run that way and you would have no need to do anything.
 
yep, I would give the council a call about the water issue and discuss it with them. Your neighbour seems a bit pushy honestly - why on earth did he say you only have a couple of days??? If the previous owners had done something to cause the water problem you may have to rectify it, even though it wasn't you. If however this is just the general flow of water, then it remains your neighbours problem, and it will be up to them to install a drain or whatever on their side of the boundary at their cost. I think he is trying to pull one over you, and wouldn't be surprised if he has had this same arguement going on with the previous owners before they left.

As for the the tree, I would tell your neighbour that they have your permission to 'trim' the tree, but that it will be at their expense as per the current legislation.
 
Molly, it is my understanding that in SA it is your responsibility to make sure that no stormwater from your block goes onto your neighbours property. in theory it sounds ok, in practice it has plenty of issues. Just out of interest how long is this boundry? Are we talking a courtyard block or a farm? Might be cheaper to drain the water into your stormwater pipework rather than build a retaining wall but as others have said check with your council before you do anything. There is a council or two in SA that say they wont enforce it anyway so your neighbour might not have any power to force you to sort it out.

As for the tree, if its going to cause a bit of unrest and the amount of prunings isn't too big it might just be easier to help them dispose of it.

Gools
 
just politely bring this up with him.

that's all you can do - and avoid using "yours and "mine" - structure the conversation into "our" problem etc.
 
He's just trying it on, Molly.

The previous owner would have had the same requests.

But as Aaron said, you want to keep things civil and pleasant if you're living there. Offer to give him a hand with the tree and ask him to let you know next time his rumpus room floods so you can see what's happening. I bet you'll be waiting a while.
 
Thanks for your replies guys, I was starting to feel a little unloved!:eek:

Yes, you are correct Wylie. I haven't altered anything in the nearly 3 years I've had the place and I know the previous owner also hasn't altered anything for at least 5 years prior to that, maybe even more. I am suprised he brought it up because the slope is so small it's barely worthy of a mention!:confused:


I have spoken to the council but they didn't seem to think I needed to do anything. I will however test my storm water pipes for blockages. I'm not sure I can do much more than that at this stage.

Thanks Rugrat, that was my impression as well. I felt the approach was a little pushy and it got my back up.

Good tip Depreciator, I do want to keep things pleasant between us but didn't want him to think it was open season on all requests.

I have since spoken with him and he seems to have dropped the whole flooding thing. He is also happy to trim the tree and dispose of branches himself now. I'm glad I asked for time to think about it!

Thanks again for your posts guys, it's comforting to know I was on the right track.
 
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