FENCES AND THE LAW

Authored by:

Sianne Way

SENIOR ASSOCIATE | +61 0431 276 197 | sianne.w@juluislawyers.com.au

Fences and the Law

(as well as Retaining Walls & Encroachments)

FENCES

The height, colour, and materials to be used for a fence, not to mention the costs and where the fence will be located, are frequent sources of dispute between neighbours.

It is a good idea to communicate with your neighbours prior to undertaking any work on or near a boundary as a friendly approach early on may allow you to reach an agreement more quickly and easily, whilst avoiding unnecessary conflict.

When someone erects a new fence without talking to their neighbours however, their neighbours are often left wondering what, if anything, they can do about it.

Must we have a fence?

There is no general law requiring a fence to be built between neighbouring properties; most people simply agree to have one.

That said, in some cases a fence is legally required, for example a swimming pool must be fenced or, on your certificate of title, there could be a restrictive covenant controlling fencing, particularly in a building development situation.

Where should the fence be?

A fence should sit on a boundary but many fences are not, and so long as the parties agree, this is okay.

A fence’s position generally does not alter the actual boundary location or the legal rights to ownership of the land subject to the parties’ agreement.

A property boundary defines the extent of legal ownership of a parcel of land. If a dispute as to the correct boundary position arises, a licenced surveyor can assist in demarcating the boundary.

Procedure

The Fences Act 1975 (SA), outlines the procedure and timeframes that apply when erecting a fence and/or carrying out repairs or replacement of an existing fence. Notice must be given to your neighbour.

What if the adjoining owner objects?

If your neighbour disagrees with your proposal, they may serve a cross-notice detailing,

1. which of the proposals they object to; and

2. their counter-proposals in relation to the proposed erection of a fence or the proposed performance of replacement, repair, or maintenance work.

If your neighbour serves a cross-notice, you may only proceed after agreement has been reached or the differences have been adjudicated upon by the Court.

“Good fences make good neighbours”

What if we cannot agree?

If it is not possible to reach an agreement through serving counter-proposals, it may be necessary to start court proceedings, unless you decide to abandon the fencing work, or to pay for it all yourself. Even if you pay the whole cost, you should still try to get your neighbour’s permission before doing the work where possible.

It may also be beneficial to try and resolve the dispute means of alternative dispute resolution, for example mediation, with the assistance of an independent third party.

Mediation can be less expensive and quicker than proceeding with the matter through Court proceedings. It may also help preserve your relationship with your neighbours.

Urgent repairs

Where a dividing fence is damaged or destroyed, and there is an urgent need to repair or restore the fence, either of the adjoining owners may, without notice to the other, carry out the requisite fencing work and recover from the other adjoining owner some costs.

RETAINING WALLS

A retaining wall is a structure built to retain a difference in ground level. While a retaining wall can serve as the footing for a fence, the wall itself is not considered to be a fence and is covered by different laws, principally the common law of nuisance and the Planning, Development and Infrastructure Act 2016 (SA).

When constructing, removing or changing a retaining wall, development approval may need to be obtained and, in some cases, notice must be provided to neighbours.

A professional engineer may be instructed to provide a report, along with plans and specifications, on the need to shore up any excavation or to underpin, stabilise or otherwise strengthen the foundations of any building.

Under the common law, liability arises for nuisance if a person excavates near a boundary causing the neighbour’s land to subside, or if fill collapses onto the neighbour’s land, provided this is foreseeable. Liability can be avoided by taking reasonable precautions.

ENCROACHMENTS

An encroachment occurs when part of a building or fixture from one property intrudes onto adjoining land. The encroachment may simply overhang or be physically attached to the adjoining property.

Encroachments of fences, property or retaining walls onto neighbouring property come under the Encroachments Act 1944 (SA).

Under this Act, it is possible to make an application to the Court where the Court can order:

1. payment of compensation to the adjacent owner; or

2. the conveyance transfer or lease of the subject land to the encroaching owner, or the grant to him of any estate or interest therein, or any easement, right, or privilege in relation thereto; or

3. the removal of the encroachment.

Where any question arises, whether an existing building encroaches or a proposed building will encroach beyond the boundary, it is also possible to apply to the court for the determination of the true boundary under Encroachments Act 1944 (SA).

Existing encroachments

Sellers generally must tell you about any current problems with the property—but they do not have to tell you about any past problems that have been corrected.

If information is withheld, you could take legal action if an issue that a seller knew about arises after a purchaser moves in. The purchaser could potentially claim for the cost of resolving the problem or even compensation for any loss of value (diminution) in the property.

If giving a definitive answer, sellers must be truthful as if it transpires that you have given incorrect information or withheld something relevant, you may be liable for misrepresentation.

SUMMARY

If a dispute arises, how much will it cost?

It is very difficult to say, but it can be a considerable amount. The analogy of the length of a piece of string may seem clichéd but it is an appropriate allusion. This is especially true if the dispute makes its way to Court.

If a case proceeds, some, or all of the way to trial, legal costs can easily run into the tens of thousands of dollars on each side.

Our approach at LGee & Julius Lawyers is to consider all sensible and pragmatic ways of resolving a dispute, at an early stage, via all means of alternative dispute resolution so that Court proceedings really are a last resort.

What should I do?

If you wake up to find a new fence being erected, we recommend first contacting your neighbour to attempt to resolve the dispute.

Consideration should be given to whether the new feature encroaches on your land, and whether it has relevant building and planning approvals.

Legal advice should always be sought so the most appropriate remedy in each case can be discussed. Speaking to a lawyer does not mean that you are going to have to go to Court – mediation can be the most cost-effective way to resolve an issue.

Our lawyers at LGee & Julius Lawyers can provide advice on the most effective solution for your dispute.

We look forward to discussing with you how we can assist.