A comprehensive guide to fencing disputes

What does this blog post cover?

  • Laws and legislation of dividing fences by state
  • Mediation vs court
  • Common fencing disputes and how to handle them

Neighbourly disputes are a common occurrence. From an easily resolved friendly disagreement to more serious disputes that require official intervention, neighbourly issues can arise over any number of things. Some of the most common disputes, however, are those to do with fencing.

Fencing is a tricky issue. Most houses share a dividing fence with at least one neighbour, and differences in opinion in desired fencing solutions can be difficult to resolve. For this reason, it’s best to be knowledgeable about all the potential issues, the relevant laws, and your rights and responsibilities when it comes to fencing.

What does the law say?

There are individual sets of laws and regulations in each Australian state when it comes to fencing. Here’s a summary of the rules in each state, as well as links to further information.

(Note: your local council may specify further rules and regulations regarding fencing, and some types of fence may require direct council approval. Check your local council website for more specific details pertaining to your area.)

New South Wales

In NSW, the Dividing Fences Act 1991 is the go-to document for settling any issues regarding shared fences. The Act 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 are put in writing and signed, and then the work can commence. However, if both parties can’t 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.

Australian Capital Territory

The Common Boundaries Act 1981 contains all the ACT’s fencing rules and regulations. As you’d expect, 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.

Victoria

The Fences Amendment Act 2014 is the most up-to-date reference for Victorian fencing legislation. It highlights that costs are to be shared equally between neighbours, 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.

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.

Queensland

The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 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. You can check out the Queensland government’s step-by-step guide to resolving fence disputes here.

 

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.

 

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.

For disputes, The NT government encourages residents to utilise The NT Community Justice Centre, which is able to assist in mediating the conflict-resolution path.

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.

Is taking it to court always worth it?

While any of the below disputes may eventually end up requiring legal intervention, sometimes it just isn’t worth letting things get to this stage.

Often, the costs involved with hiring solicitors and undergoing court proceedings will exceed the costs you may be trying to avoid paying in the first place. And even if you feel legal measures are worth it in a monetary sense, will they be worth the tension caused between you and your neighbours? You may get the ruling you want, but remember, you still have to live next door to them.

Taking fencing disputes to court should always be a last resort. Try any means necessary to resolve the issue privately or with a free mediation service — browse the Australian Mediation Association for more information about private mediation services.

Only when things get out of hand, or drag on for months without agreement, should legal action be considered.

Most common fencing disputes and how they can be resolved

I want to build a new fence but my neighbour doesn’t (or vice versa)

If there is currently no fence, or a fence that’s deemed inadequate, dividing two properties, 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 pay an equal share in the construction.

In this case study examined in API Magazine, Neighbour 1 wished to build a relatively expensive fence along the properties’ boundary line to an existing wire fence. However, there was no legal requirement for anything other than the existing fence, and Neighbour 2 refused to pay half of the proposed amount. When an agreement could not be reached, the matter was headed for court, however Neighbour 1 had ‘little legal grounds to claim costs for the fence’.

Basically, if your desired new fence exceeds the legal requirements of a standard dividing fence, your neighbour has no obligation to contribute to its costs. Likewise, if your neighbour wishes to build a more expensive fence than you are willing to split the costs for, you’re in no way legally bound to pay half.

In these cases, it’s best to try to resolve the matter between yourselves without undergoing legal proceedings.

The location of a common boundary fence is disputed

In some cases, a boundary fence may have been built along the wrong demarcation between two properties. This may have come about from an illegal extension or moving of the fence, or it may be an existing issue that wasn’t picked up by a land surveyor. Another issue may arise if the building of a new fence is proposed and one neighbour does not agree with the proposed location.

Further investigation is required before any action is taken. If necessary, a survey of both blocks of land should be taken to determine the proper boundary line and see whether the existing or proposed dividing fence is in the right location.

This 2014 article from the Canberra Times warned that many homeowners could potentially have fences that overstep their property’s boundaries without even realising. It just goes to show that conducting proper surveying before purchasing a property can be vital!

Who pays for damaged fences?

We know that generally, 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 for repairs?

Generally, if one neighbour is responsible for the damage incurred on the dividing fence, it’s their responsibility to foot the entire repair bill.

  1. If the responsible neighbour doesn’t initiate repairs of their own accord, the other neighbour may discuss the issue and request repair.
  2. If an informal agreement is not reached, a fencing notice may be issued in accordance with the relevant state legislation.
  3. If this notice is still ignored, the matter may be taken further for mediation or court intervention.

If the damage to a dividing fence has been incurred due to means outside either neighbour’s control, the responsibility for organising and paying for repairs should be divided equally, as per the usual legislation. 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.

 

Hopefully, you’ll never have to deal with a nasty neighbourly fencing dispute. But if you do, know your rights and responsibilities and try to resolve the issue privately, quickly and calmly.

Written by Claire Bradshaw

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Get in touch with our in-house team on 1300 556 957, or simply enquire below, to get all the information needed to present to your neighbour.

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