Guidance on retaining wall responsibilities

The legal and procedural requirements for retaining walls can be complex. This is Bradford Council (CBMDC)’s guidance note on the requirements for retaining walls.

In any case where there is a dispute or the responsibility for a retaining wall is unclear or challenged then advice will be sought from the Council’s legal team before making any final decision on the responsibility for the structure.

Definition

Retaining walls within the highway boundaries may be classified as follows:

1. Those which directly support the highway or support an embankment carrying the highway are referred to as ‘highway retaining walls’.
2. Those which support land and/or property which is alongside and above the level of the highway are referred to as ‘property retaining walls’.

Determining the responsibility for maintenance

For most modern highways, the responsibility for the maintenance of the retaining walls will be recorded on Bradford Council Highway Structures files or information sheets, etc. Where there are no such records, the responsibility for the maintenance, on modern roads and on some older roads, may be recorded on the Deeds of Conveyance for the adjoining land (usually in the possession of the landowner). This responsibility may be recorded in the form of an easement granted to the highway authority for access for maintenance, or in some other form.

In many cases the construction and maintenance of retaining walls, particularly of property retaining walls, was dealt with as ‘accommodation works’ and responsibilities agreed in an exchange of letters between the highway authority and the landowner, without any reference being incorporated in the Deeds of Conveyance. Such letters may now be missing or destroyed. Nevertheless, the identification of the maintenance responsibilities where there is doubt, should generally be attempted by thoroughly searching the Highway Structures files and the legal documents library in Legal Services, requesting information from the Land Registry and examining the Deeds of Conveyance provided by the landowner. No responsibility for the maintenance of a property retaining wall and, in some cases highway retaining walls (for example, retaining walls which may have been outer walls of mills), shall be accepted without an examination of the Deeds.

However, in the absence of any unusual circumstances, highway retaining walls which are within the highway boundaries can generally be assumed to be a Council responsibility without resort to the more detailed searches, external to the Legal Services, which are referred to in the paragraph above. For all other walls, if the searches do not reveal any relevant evidence, then the responsibility for maintenance shall be determined on the likely purposes for which the wall was built.

The purpose for which a wall was built can often be determined by the digging of a trial hole, or by taking a borehole (possibly by hand auger), a short distance behind the wall. If the retaining wall is found to be supporting the original ground and enabling the highway, then it can be assumed to have been constructed for highway purposes. If it is a highway retaining wall it can be assumed to have been constructed for the benefit of the property owner and is the responsibility of the highway authority. If the retaining wall is found to be supporting filled ground, for example to prevent land slip onto the highway then the converse should be assumed to apply and it will be the responsibility of the landowner..

Where a property retaining wall is of similar construction and vintage as the property it supports, boreholes or trial holes will often not be necessary since it can be assumed that the wall was constructed to support the property, and hence is the property owner’s responsibility.

Fence walls

Retaining walls are often surmounted by integral or free standing fence walls (or boundary walls). It should be noted that a highway authority does not have any legal obligation to fence off a highway. Hence most of the fence walls alongside the highway are not maintained by the highway authority. The highway authority does however have a general duty of care to ensure the safety of the public, including highway users. Hence, where the responsibility for the maintenance of a retaining wall rests (or is assumed to rest) with Bradford Council a parapet shall normally be provided on the top of the retaining walls in appropriate situations.

In the case of highway retaining walls a judgment will need to be made in deciding whether a parapet is appropriate and the type of parapet which should be provided. Reference should be made to appropriate National Highway Standards and Advice Notes when making this judgment. In the case of property retaining walls a timber fence parapet will usually be adequate, but consideration should be given to likely planning requirements if subject to a planning application, for example the need to provide a masonry wall to match adjoining boundary walls.

Contributions to the cost of maintenance

Contributions should be sought:

• Where a boundary wall is provided at the request of a property owner in lieu of a timber fence or other less costly parapet which would be adequate for highway and planning approval purposes.
• For betterment or deferment of renewal where a boundary wall needs to be rebuilt even where the rebuilding is as a result of the collapse of the retaining wall beneath, and a less costly parapet would suffice for highway purposes.
• Where a property owner derives a substantial benefit from the presence of a property retaining wall, for the support of development that has taken place after the wall was constructed.

Notes

Whether or not the retaining wall was built for highway purposes can only be decided by the Strategic Director of the Department responsible for retaining walls after inspection of conveyance, Council land records, bridges records, and most importantly the site.

There may be rare occasions when conveyance or legal agreement specifies responsibility and this would over-rule the generalities outlined above.

Section 167 Highways Act 1980 does not apply to retaining walls less than 4ft 6ins high and therefore if these collapsed they would be dealt with as ‘materials deposited on the highways’, ‘dangerous land adjoining Street’ or ‘danger to Highway users’ under the Highways Act.

Summary

A. Walls supporting the highway

B. Walls supporting adjacent land

C. Fence walls