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Retaining wall repair responsibility

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muckshifter
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Retaining wall repair responsibility

#320239

Postby muckshifter » June 21st, 2020, 2:11 pm

If any contributors to this forum can give me a bit of advice on the following problem before I attempt to negotiate with the currently hard up local authority, or find myself a solicitor, I would be grateful.
This is a problem with a retaining wall between my garden and a minor road and footpath. Although the road is a minor one it is quite busy, particularly at school start and finish times, as on the other side of another of my retaining walls of similar dimensions, but in good condition, is an adjacent junior school.

The retaining wall in question averages approximately 1.8 metres in height, is approximately 35 metres long and my retained garden is about a metre higher than the footpath, which in normal circumstances indicates that the wall belongs to the house, I believe. It appears to have been in place alongside the footpath and road before my house was built in 1904, which leads me to wonder if the ownership of the wall might be questionable, and it is now in terrible condition which means an expensive new wall is needed. A very noticeable characteristic of the wall is that it has deteriorated almost exclusively on the East side adjacent to the road / footpath, where the actual stone has lost all its edges and become rounded like stones on a beach, and it is no longer straight or vertical. On the West, house facing side, the actual stone looks more or less normal.

There are quite a few issues that make me feel that the reconstruction of the wall should be either wholly or partly carried out at the expense of the LA, as follows:-
1. The wall, road and footpath were shown on the plan of the land before the house was built, which makes me wonder whether it actually belongs to the house or the local authority who built the road, but I don’t know how to investigate that possibility.
2. The original footpath adjacent to the wall was, I believe, stone paving slabs, which were replaced at some point by a blacktop pavement. The construction of that may or may not have affected the foundations and / or drainage arrangements of the wall.
3. The wall is alongside the final 35 metres of a lane where the, very frequently used in our area, gritting wagons have to slow and give way, so the road side of the wall is frequently hit by salt and grit laden slush or water from the road thrown up by passing traffic.
4. Within 15 centimetres from the roadside face of the wall, and often almost touching it are: a concrete water hydrant signpost, a road name plate with two steel legs into the pavement, a street lighting column, an illuminated Give way sign on a steel pole, a disused concrete pole which I believe was for a bus stop, an approx 1930s vintage post box embedded in the wall, a steel columned bus stop and a wooden telegraph pole with multiple phone wires. Again, the possibility of foundation and / or drainage damage during construction of these occurs, as well as the huge impediment they present to the wall’s reconstruction. All were almost certainly installed after the house was built.
5. The reconstruction cost will have been increased enormously I would think by legislation brought in during the last couple of decades concerning notices etc for work in roads , footpath diversions, qualifications required to work in roads, etc, although I suspect that is just hard luck on whoever has to pay for the work. The last straw would be, perhaps, discovering that the mice which live in the wall are an endangered species!

One of the things which served me well working as a young man working for a contractor on motorway construction on such as the M6 & M62, was a clause in the conditions of contract which, when faced with the client’s representative saying that there was a defect in the work which we had to put right at our expense, enabled me to ask for an investigation of the problem to ascertain responsibility and hence who paid. Is there anything similar in the law relevant to this situation which might be helpful?
Thanks in advance for anyone who has read this far.

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Re: Retaining wall repair responsibility

#320248

Postby Mike4 » June 21st, 2020, 2:26 pm

I'd say the "vintage post box embedded into the wall" gives you the best clue as to ownership of the wall. Have a look through the deeds to your house looking for a wayleave (I think that's the term) granted by previous owners to the Post Office granting permission to put/have it in the wall. If there is one, then it is pretty clear the wall belongs to the house. And vice versa if there isn't.

And regarding the mice, I'm not surprised they are an endangered species if they are a type that chooses to live in collapsing walls.

Edit to add:

Another thought. Let's imagine you prove it belongs to the council. Their lawyers might claim a contributory factor in the deterioration in the wall is the way your garden ground level is too high and ask you to reduce it to match that of the footpath outside. You might like to think about how to field that before poking any proverbial hornet nests in the council legal dept.

dspp
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Re: Retaining wall repair responsibility

#320274

Postby dspp » June 21st, 2020, 3:48 pm

What was the height of the land on the house side, prior to the house being built ?

Is this a situation where a householder/builder has progressively accumulated soil/etc against a boundary wall (irrespective of who the wall belongs to), that was never intended as a retaining wall.

Worth thinking about that.

regards, dspp

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Re: Retaining wall repair responsibility

#320283

Postby Lootman » June 21st, 2020, 4:09 pm

muckshifter wrote:The retaining wall in question averages approximately 1.8 metres in height, is approximately 35 metres long and my retained garden is about a metre higher than the footpath, which in normal circumstances indicates that the wall belongs to the house, I believe.

Do you have any particular reason to believe that the property with the higher elevation (i.e. your property) has the obligation by default? Because my instinct would be the complete opposite i.e. the beneficiary of a retaining wall is the lower-elevation property. Because without that wall, soil, stones and slurry would slide down the slope and onto that road, pavement, footpath and whatever else is there.

There is a "Doctrine of Lateral Support" in land use that declares that landowners have an obligation to provide support for adjacent (higher) land. This often arises when a landowner excavates his land to make it more level and usable (such as if you wanted to build a road, say). That landowner who did the excavation has a duty to maintain support for the surrounding lands, and retaining walls are the usual method.

So when I levelled the garden of a house I used to own, I took on 100% of the responsibility for ensuring my neighbour's higher land was supported. In this case by moving six tons of concrete, cinder blocks and steel reinforcements to build a 5 foot wall, topped by a fence.

So my instinct is that it is the LA's responsibility. They effectively dug out a channel to put a road through, and that involves excavation and levelling to create the cutting for the right of way. Getting them to agree is of course another matter.

PinkDalek
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Re: Retaining wall repair responsibility

#320342

Postby PinkDalek » June 21st, 2020, 9:39 pm

Lootman wrote:[There is a "Doctrine of Lateral Support" in land use that declares that landowners have an obligation to provide support for adjacent (higher) land. ...


That might be the case but I can only find legislation in the USA. Can you point to something pertinent over here?

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Re: Retaining wall repair responsibility

#320346

Postby Lootman » June 21st, 2020, 10:01 pm

PinkDalek wrote:
Lootman wrote:There is a "Doctrine of Lateral Support" in land use that declares that landowners have an obligation to provide support for adjacent (higher) land. ...

That might be the case but I can only find legislation in the USA. Can you point to something pertinent over here?

According to the following the law is very similar in both places, and the US law derives from UK law. The main difference I can find is that UK law considers the obligation to be an easement.

"In Dalton v Angus (1881) 6 App. Case 740 two independently constructed buildings adjoining each other had stood together for over twenty years. One had been converted to a coach factory more than twenty years before and the conversion had increased the lateral support provided by the soil of the adjoining house. The owner of the adjoining property demolished it and excavated the earth with the result that the stack of the factory sunk and the factory collapsed. It seems to be common sense that you cannot make changes to your land that undermines the integrity of a neighbour's land. Two references found at random:

The House of Lords held that as the conversion of the building to a coach factory had been known to the adjoining land owner and more than twenty years had passed the factory had the benefit of a prescriptive easement of support which vertical and lateral support imposes a positive and constant burden necessary for the safety and stability of the factory. "

http://www.christophercant.co.uk/Easeme ... 0walls.pdf


"The doctrine has prevailed from the earliest times, in the English law. It is well formulated by Rolle, in the case of Wilde v.
Minsterley, Rolle Abr. "Tresp)ass," I., pl. 1. "It seems that a man who has land closely adjoining my land, cannot dig his 1a .1
so near mine, that mine would fall into his pit, and an action brought for such an act would lie." The later English decisions
uniformly recognise the law as laid down by Rolle, and the consideration of a very few cases, will show how closely the American
law has followed the English."

https://scholarship.law.upenn.edu/cgi/v ... law_review

muckshifter
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Re: Retaining wall repair responsibility

#320682

Postby muckshifter » June 23rd, 2020, 10:24 am

Thank you all for the responses.

The 1930s vintage post box in the wall was my first thought about wall ownership a couple of years ago. Couldn’t find anything in deeds, but when I attempted to get confirmation from the Post Office of where they obtained permission, it seemed impossible to get any answer from them. The “mice” point was a not very serious thought, provoked by the huge number of different encounters with endangered species requirements in a civil engineering lifetime.

In terms of the difference in levels between the garden and the road, I’ve never seen any evidence of existing levels at the time of building the house, or the road / pavement. Where there is no “retaining” requirement, eg. in boundary defining farm walls in this area, the walls are generally lower and of dry stone type, whereas this wall is substantial and mortared, but perhaps that is just a cost issue for farmers. The mortared stone looks consistent for the full height of the wall and is lime mortar, I believe.

The question of ownership of a retaining wall is something that I thought was an accepted convention after involvement with them on motorway building - bit like the fact that a fence belongs normally to the side where the post is. So my assumption was that the retained property owns the wall in normal circumstances. The point about the LA having to build the wall to retain the land before the house was built as they were creating a road and footpath which needed excavation on my side of the road ( the more important road to the front of the house, which the side road in question joins is on a long gradient with the about half a metre of fall across the junction with the minor road where the wall is) has been my hope for the last few years.

The other thing I was hoping for comment on, was the potential for wall foundation damage by all the works to the pavement and installation of lots of street furniture adjacent to the wall, and also the impediment that creates in terms of rebuilding, so any comment on that would be appreciated.

richlist
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Re: Retaining wall repair responsibility

#320687

Postby richlist » June 23rd, 2020, 10:40 am

I'm afraid your assumption is wrong.....a fence does not necessarily belong to the side which has the post. More usually it's exact!y the opposite......the fence owner will prefer the side without the posts because that looks much nicer.

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Re: Retaining wall repair responsibility

#320688

Postby dspp » June 23rd, 2020, 10:45 am

muckshifter wrote:Thank you all for the responses.

The 1930s vintage post box in the wall was my first thought about wall ownership a couple of years ago. Couldn’t find anything in deeds, but when I attempted to get confirmation from the Post Office of where they obtained permission, it seemed impossible to get any answer from them.


There are many post boxes in the walls of buildings and of gardens all over the UK. Many of these building walls & garden walls have never been in public ownership. There happens to be one just by my house, in the wall of a near neighbor. So I don't think you can use the post box as any form of evidence.

As to the street furniture I think that is unlikely. Again walls all over the UK have street furniture either immediately adjacent to them or partly inset / recessed. My own do. By and large it has nothing to do with the ownership of the wall.

It will be interesting to hear how this pans out.

regards, dspp

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Re: Retaining wall repair responsibility

#320692

Postby dspp » June 23rd, 2020, 10:50 am

richlist wrote:I'm afraid your assumption is wrong.....a fence does not necessarily belong to the side which has the post. More usually it's exact!y the opposite......the fence owner will prefer the side without the posts because that looks much nicer.


The OP's general assumption is correct,

"It is normal practice when using a fence to mark a boundary to place the outer face of the fence along the boundary, so that the posts stand on the land of the of the fence's owner."

but it does not have to be that way,

"If your neighbour pays for a fence that he erects on his own land (even if he builds the fence so that the outer face of it, as seen from his land, runs along the boundary) then he is entitled to choose the style and colour of the fence, as well as whether he places the smooth side of the fence to face in towards his own house or out to face your house."

http://www.boundary-problems.co.uk/boun ... ences.html

- dspp

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Re: Retaining wall repair responsibility

#320707

Postby richlist » June 23rd, 2020, 11:30 am

dspp wrote:
richlist wrote:I'm afraid your assumption is wrong.....a fence does not necessarily belong to the side which has the post. More usually it's exact!y the opposite......the fence owner will prefer the side without the posts because that looks much nicer.


The OP's general assumption is correct,

"It is normal practice when using a fence to mark a boundary to place the outer face of the fence along the boundary, so that the posts stand on the land of the of the fence's owner."

but it does not have to be that way,

"If your neighbour pays for a fence that he erects on his own land (even if he builds the fence so that the outer face of it, as seen from his land, runs along the boundary) then he is entitled to choose the style and colour of the fence, as well as whether he places the smooth side of the fence to face in towards his own house or out to face your house."

http://www.boundary-problems.co.uk/boun ... ences.html

- dspp


I think we are in agreement. It matters not which side has the fence post facing it, that in itself does not determine who owns the fence.

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Re: Retaining wall repair responsibility

#320718

Postby muckshifter » June 23rd, 2020, 11:58 am

My point about the street furniture was nothing to do with ownership of the wall, it was based on the assumption that the wall was probably mine and asking if there was a responsibility on the multiple furniture owners - water board, LA, bus company, BT (I expect), Post Office, etc. to not damage the foundations and drainage of the wall, as all the furniture was installed after the wall was built, and also the implications of the impediment they provide to work on the wall.

The fence post issue is a bit of a red herring, but if you have a look at motorway fencing it was always post on landowners side in England, presumably so that the landowner had to maintain it and that had been taken into account in compensation calculations.

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Re: Retaining wall repair responsibility

#320728

Postby muckshifter » June 23rd, 2020, 12:35 pm

Sorry dssp, forgot to say in previous post, that someone must presumably have given permission for the installation of the post box, and it was the question of who gave that permission, as a clue to ownership, that I tried to resolve with the post office, unsuccessfully. Perhaps such things were done verbally in the past, but I'm surprised if there was no payment, or record of the agreement.

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Re: Retaining wall repair responsibility

#320732

Postby didds » June 23rd, 2020, 12:44 pm

dspp wrote:There are many post boxes in the walls of buildings and of gardens all over the UK. Many of these building walls & garden walls have never been in public ownership. There happens to be one just by my house, in the wall of a near neighbor. So I don't think you can use the post box as any form of evidence.


but presumably royal mail cant just go sticking postboxes in any old wall as they see fit?

and what happens if "my wall with a postbox" is removed by me as i no longer want the wall... what happens to the postbox?

The OP says he receives no wayleaves for the postbox, so either every such postbox is on a nod and a wink and good faith, or somebody somewhere receives the wayleaves as they own the wall instead?

didds

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Re: Retaining wall repair responsibility

#320777

Postby dspp » June 23rd, 2020, 2:34 pm

didds wrote:
dspp wrote:There are many post boxes in the walls of buildings and of gardens all over the UK. Many of these building walls & garden walls have never been in public ownership. There happens to be one just by my house, in the wall of a near neighbor. So I don't think you can use the post box as any form of evidence.


but presumably royal mail cant just go sticking postboxes in any old wall as they see fit?

and what happens if "my wall with a postbox" is removed by me as i no longer want the wall... what happens to the postbox?

The OP says he receives no wayleaves for the postbox, so either every such postbox is on a nod and a wink and good faith, or somebody somewhere receives the wayleaves as they own the wall instead?

didds


Maybe they did, or maybe they didn't, but this situation certainly is not a new one.

In
the absence of any agreement,
post boxes installed on private
property will remain in Royal
Mail ownership under the terms
of a deemed contractual licence.
Royal Mail can be required, upon
reasonable notice, to remove the
post box and make good the site.


https://historicengland.org.uk/images-b ... ost-boxes/ (see p5)

https://forums.moneysavingexpert.com/di ... ndary-wall

As an aside the PO has a statutory right to put pillar boxes in the public highway, and GPDO rights re planning, so if the OP were to insist on it being ripped out of 'his' wall then PO could just put a freestanding one up 6" further out. That would first require the OP to acknowledge that it is 'his' wall. In any case I struggle to see how the PO box might be weakening the wall, around me they are likely the strongest bit of the wall.

Interesting.

regards, dspp

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Re: Retaining wall repair responsibility

#320828

Postby muckshifter » June 23rd, 2020, 5:22 pm

My references to the post box were about it providing a clue to wall ownership, and the impediment it is likely to cause to whoever has to rebuild the wall, not damage to the foundations, drainage or structural strength of the wall, which might all be affected by the total of eight support posts founded in the pavement very close to the wall.

didds
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Re: Retaining wall repair responsibility

#320831

Postby didds » June 23rd, 2020, 5:30 pm

dspp wrote: In any case I struggle to see how the PO box might be weakening the wall


Ah - Id read it as the OPs point was if _maybe_

* if it WERE his wall then he would receive wayleaves
* if were NOT his wall he would not receive wayleaves.
* He does not receive wayleaves.

ERGO it is not his wall

Its about ascertaining whether he "owns" the wall, not whether the postbox weakens it?.

But I do see that its presence is included wityh other items that m,aye have allegedly damaged it.

So yes, id imagine the postbox may well not be a weakening presence - but i guess you'd need some engineer of some descriptyion to ascertain that.

Cheers

didds

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Re: Retaining wall repair responsibility

#321340

Postby muckshifter » June 25th, 2020, 11:45 am

Thanks to you all for the responses. Unfortunately you all seem to have focused on the one black and white issue of ownership of the wall, whereas the issues that are likely to be more important for me, based on the assumption that it is likely to be my wall, are the possibility of damage to the foundations or drainage caused by excavations for street furniture including some substantial ones (concrete lighting column 10+ metres high approx 7cm from wall, 9m high wooden telephone pole), whether or not there is any comeback for the regular dowsing of the roadside face of the wall with snow slush, grit and salt which appears to have worn both the stone and mortar badly, and the impediment and extra cost all the street furniture presents in terms of rebuilding.

Whoever the wall is found to belong to, I would expect some form of negotiation will be necessary with the LA as, for one example of many considerations, there will need to be a footpath closure and no doubt the LA will want the work done in school Summer holidays, or based on very restricted working hours because of the adjacent school and road junction. The work will obviously involve damaging my garden at least temporarily, and will have to take account of protection of a public mains sewer which runs below my garden and under the wall, the telecoms / fibre, power and water supplies running within the footpath etc.

A couple of years ago, I contacted a local wall builder about giving me an estimate of the cost of replacing the wall. He came out and “measured” the existing wall, promising to let me have an estimate in a couple of days, but I noticed him noticing all the street furniture and footpath contents, inconspicuously, and without making any comment, and just as I suspected, I never heard from him again. Those considerations leave me with the impression that replacing this wall has been made much more expensive than it would have been without all the street furniture etc. It was possible pointers to help in negotiations with the LA, particularly but not exclusively in the event that wall ownership is confirmed to be mine, that I was hoping this forum would suggest.


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