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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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On the 25th January 2014 there was a freak whirlwind which

Resolved Question:

On the 25th January 2014 there was a freak whirlwind which blew down a security fence (34 meters in length) and also the retaining wall on which the fence was attached.
My land is higher than the land on which the retaining wall was built and depended upon the retaining wall to avoid any landslip.
Are the owners (Tesco stores) responsible for rebuilding a new retaining wall? I have contacted the owners requesting a meeting with a responsible representative but to no avail. A maintenance person came to say that photographic evidence had been taken and the same man brought two contractors to estimate for the work. One contractor intended to quote for a retaining wall but the other was not gong to quote for rebuilding a retaining wall.
I contacted the local authority (Amber Valley Borough Council) who sent someone but as the damage caused by the storm did not affect the general public there was no action he could take.
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

Do you know who raised the height of the land please? Was it Tesco or a previous owner of that land or was your land lowered by you or a previous owner or are you unsure?

Customer:

The land was lowered by the previous owner, namely Courtaulds. A retaining was built to safeguard landslip from my land, they also erected a security fence above the retaining wall. The problem is the destroyed retaining wall was built on the now Tesco's land, just away from my boundary hedge. My house and property are insured, however as my boundary is a hedge this has been excluded from my policy. Again the retaining wall is not on my land !

Customer:

I do not know what as happened to my answers but I repeat the contents:

Joshua :

Thanks. So just to be clear, the previous owner of the land next door to you on which there is now a Tescos lowered his land and constructed a retaining wall. Do I understand this correctly?

Customer:

YES

Joshua :

Thanks

Joshua :

Has the collapse fo the retaining wall caused damage or could cause future damage to your land - e.g. loosing of soil and landslip?

Customer:

The loss of the retaining wall will cause a landslip and loosing of soil if a new retaining wall is not built quickly.

Joshua :

Thank you. With regard to retaining land and walls, there is no statutory authority or law that assists with defining responsibility for retaining walls but there is some guidance in common law decisions which point to relevant issues, namely how the land came to be higher in the first place-i.e. is it naturally higher or was the land artificially raised or conversely the lower land artificially lowered.

Joshua :

If one can show who raised the land or conversely who lowered the land, it would usually be at that stage the person raising or lowering (or the person that then owns that land in the case that a previous owner carried out the work) that would be responsible for installing and maintaining a retaining wall or structure for maintenance of support). Fast forwarding years down the line however if the position is not made clear in your title deeds, it is not always entirely clear what transpired however here you fortunately know that the neighbouring owner lowered the land so this is clear at least. A surveyor can sometimes assist in this respect if there is dispute.

Joshua :

Some relevant decisions in the courts that give some guidance are Leakey v National Trust where the Trust was held liable for a landslip of soil from its land due to lack of maintenance. In Sedleigh v Callaghan some event occurring on higher land that had been raised creating conditions which result in damage resulted in damages being awarded to the owner of the lower land.

Joshua :

The general line that is likely to be followed would be one of presumption that the owner of the higher land is responsible for maintenance of any retaining structure or wall to the extent so as to prevent landslip onto the lower land unless the owner of the higher land can demonstrate that the owner of the lower land was the one that lowered his land artificially so as to give rise to the need for a retaining wall whereby the responsibility roles could be reversed as is the case here.

Joshua :

Accordingly if you can show that the neighbouring land was artificially lowered you can fashion a potential claim against them for any damage caused to your land cause by lack of continuing support from a retaining wall or other retaining structure. If you home insurance has legal cover, your insurer may be able to assist you with resolving the matter if it cannot be resolved amicably.

Joshua :

Is there anything above I can clarify for you?

Customer:

My land has never been lowered or raised. The problem is that Courtaulds lowered the land and the retaining wall was built to restrain a landslip of my land. I cannot show that Courtaulds did this because they have ceased trading. However, Tesco repaired the security fence, which was erected on the now destroyed retaining wall, some years ago when vandals broke through.

Joshua :

If Tesco does not accept that the land was lowered and dispute this then you may find it necessary to retain a surveyor to prepare a report. Normally it is perfectly possible for a surveyor to relatively easily ascertain the party that has artificially lowered land by reference to land countours and evidence of works.

Joshua :

In addition there may be neighbours who will be able to confirm the position and if necessary provide supporting statements.

Joshua :

You only need establish the position on the balance of probability so the test is not overly high. Providing you can establish that it is their and that has been lowered from there you have the basis for a claim as above.

Customer:

There are no neighbours still alive who can support any claim. My boundary in question is completely isolated from the public.

Customer:

It would appear that I need a surveyor. Can you recommend anyone?

Joshua :

OK that will preclude witness statements unfortunately however a surveyor should not normally have particular difficulty in establishing the position and can provide an experts report. Which main town or city do you live in or near?

Customer:

I live in HEANOR, Derbyshire, DE75 7QR

Joshua :

Thanks. If you could bear with me for a few moments...

Joshua :

The following companies should be able to assist:
Sonas Chartered Surveyors
01332 693106

Leonard Murray & Associates Ltd
0115(NNN) NNN-NNNNbr/>
Construction Design Solutions Ltd
0115(NNN) NNN-NNNNbr/>

Customer:

Thanks for your help.

Joshua :

A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me

Joshua and other Law Specialists are ready to help you