Living in a community, it’s natural for neighbours to have disagreements. Occasionally, these disagreements can blow up into full scale disputes that may require legal intervention. Some of the most common disputes are related to fencing between neighbouring properties.
Universally, fencing is a tricky issue with most houses sharing a dividing fence with at least one neighbour, and problems that arise can lead to disagreements that may be difficult to resolve. For this reason, it’s best to be knowledgeable about all the potential issues, understand the relevant laws, and know your rights and responsibilities when it comes to fencing.
Below, we’ll take a look at the legislation regarding fencing in each Australian state, and then examine some of the most common disputes and their potential resolutions.
There are individual sets of laws and regulations in each Australian state when it comes to fencing.
New South Wales
In NSW, the Dividing Fences Act 1991 is the go-to document for settling any issues regarding shared fences. The Act basically states that neighbours are required to contribute equally to the costs of constructing, replacing, repairing or maintaining a shared dividing fence.
If you and your neighbour discuss the work to be done and come to an agreement together, it’s recommended that the terms of the agreement be put in writing and signed before commencing work. However, if both parties cannot come to an agreement, applications can be made to have the matter resolved at a Community Justice Centre, the local court, or the NSW Civil and Administrative Tribunal.
Queensland
The Queensland government has specific legislation regarding fencing disputes called the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. Its general terms are the same regarding shared ownership of dividing fences, and equal contribution by both neighbours to fence building, repairs and replacement.
Fencing disputes that cannot be resolved between neighbours can be referred to the Queensland Civil and Administrative Tribunal. These disputes are divided into two categories: disagreements about the dividing fence itself, and debt recovery for fencing work based on an agreed amount.
Victoria
The Fences Amendment Act 2014 is the most up-to-date reference for Victorian fencing legislation. It lays out processes to follow when it comes to building and repairing dividing fences, and also states that alternative agreements may be met between neighbours before works commence. Costs are to be shared equally between neighbours.
In Victoria, agreements made outside the Fences Act are subject to contract law, but there are avenues available for solving disputes according to the Act. These include contacting the Dispute Settlement of Victoria or proceeding with an action in the Magistrates’ Court of Victoria.
South Australia
In SA, the Fences Act 1975 regulates all procedures regarding fencing. Joint ownership of dividing fences is the norm, regardless of whether the fence is located directly on the property’s boundary line. SA legislation states that there is no obligation for a neighbour to contribute to the costs of building, repairing or maintaining a fence unless they have agreed to and/or suitable notice has been given.
Unresolvable disputes can be addressed by contacting Community Mediation Services, and if the issue is still unresolved, the matter can be taken to the Magistrates Court.
Australian Capital Territory
The Common Boundaries Act 1981 contains all of ACT’s fencing rules and regulations. ACT legislation states that private property owners sharing side or rear fences must be responsible for contributing equally to the fence’s cost and maintenance. It’s further stated that the definition of a ‘basic urban fence’ is a hardwood paling construction standing 1.5m high, and that other fence types must be discussed and agreed upon between neighbours.
If neighbours cannot agree on arrangements for new fencing, repairs of old fencing or general cost sharing, an application can be made to the Small Claims Court, or the Conflict Resolution Service can be contacted.
Northern Territory
The Northern Territory Fences Act sets out the rules about fencing for NT residents. A sufficient fence between adjoining properties is the responsibility of both parties, provided that the common boundary is specified, notice is given, and an agreement is reached.
The NT Community Justice Centre is able to assist in mediating the resolution of difficult disputes. The NT government encourages residents to utilise this option to avoid taking the dispute to court.
Western Australia
In WA, the Dividing Fences Act 1961 is combined with local government rules to regulate dividing fence construction and maintenance. Processes are outlined in the Act for determining common boundaries, notifying each other of proposed works, sharing costs equally, and dealing with disputes.
If an agreement cannot be reached, a resident can make an application to the Magistrates Court to resolve the issue.
Tasmania
The Boundary Fences Act 1908 still stands as the primary legislation concerning fencing in Tasmania. In order for neighbours to be compelled to contribute equally to boundary fence costs, notice must be served or an oral or written agreement made between the neighbours.
Arbitration or mediation measures must be taken when an informal agreement cannot be reached regarding fencing. Residents are advised to contact the Tasmanian Legal Aid Telephone Advice Service for guidance in these situations.
Most common fencing disputes and how they can be resolved
Modular Walls takes a look at some of the most common disputes that may arise between neighbours over fencing.
I want to build a new fence but my neighbour doesn’t (or vice versa).
Where there is no fence currently or the existing fence dividing two properties is inadequate, a fence that suits the purposes of both parties must be built, with costs split equally. However, if the current fence is adequate according to government standards, but one neighbour wishes to build a new fence anyway, the other party is not legally required to contribute to the construction costs.
In such cases, it’s best for the two neighbours to try and resolve the matter between themselves without taking recourse to the law.
The location of a common boundary fence is disputed.
Sometimes, when the legal boundary between two properties is not clear, and the boundary fence has already been raised, it can lead to disputes. The wrong demarcation between the two properties may have come from an illegal extension or moving of the fence by one of the neighbours, or it may be an existing issue that wasn’t picked up by a land surveyor. Another issue may arise if a new fence is proposed and one neighbour does not agree with the proposed location.
Regardless of whether the dividing fence is in the wrong place, or one of the neighbours objects to its proposed location, further investigation is required before any action is taken. If necessary, a survey of both blocks of land should be undertaken to determine the proper boundary line and see whether the existing or proposed dividing fence is in the right location.
Damaged shared fences: Who pays for repairs?
The general practice is that all repair costs for dividing fences are shared equally between neighbours. But what if the damage was inflicted by one of the concerned parties? Or what if the damage was incurred naturally, but one party doesn’t believe in the need to perform repairs?
Generally, if one neighbour is responsible for the damage incurred on the dividing fence, it is their responsibility to foot the entire bill for its restoration. If the responsible neighbour does not initiate repairs of their own accord, the other neighbour may choose to discuss the issue with them and request that they organise repairs. If the two parties are unable to arrive at an informal agreement, a fencing notice may be issued in accordance with the relevant state legislation. If this notice is still ignored, the matter may be taken further for mediation or court intervention.
When a fence is damaged due to reasons beyond the control of either neighbour, the responsibility for organising and paying for repairs should be divided equally, as per the usual legislation. However, if one neighbour does not agree with the proposed repairs or refuses to contribute their share, the other neighbour may proceed with the repairs after proper notice has been served, and later seek to recover the owed contribution to the costs by legal means.
Is taking a dispute to court always worth it?
While legal intervention may be required in some situations, sometimes it just isn’t worth letting things get to this stage.
Getting a legal opinion or hiring solicitors and undergoing court proceedings can be very expensive and may even exceed the costs one has been trying to avoid paying in the first place. Regardless of the outcome of the legal proceedings, it’s important to understand that the two neighbours will have to live next to each other, and continued animosity will only make life difficult for all.
Choosing the legal route to resolving disputes between neighbours should always be treated as a last resort. Try to resolve the issue privately or with a free mediation service if it’s offered in your state. Only when things get out of hand, or drag on for months without agreement, should legal action be considered.
