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Fences

There is no general legal obligation to fence land or to repair an existing fence, however the Fences Act 1975 (SA) regulates the erection, replacement, maintenance and repair of fences in South Australia. All references in this section are to this Act unless stated otherwise.

The Fences Act 1975 (SA) provides a procedure for resolving fencing disputes and obtaining contributions from neighbours who benefit from a fence. The purpose of the Act isto:

  • Provide for the erection, replacement, repair and maintenance of fences
  • Ensure that a person seeking construction of a fence give ample opportunity for his/her neighbour to raise matters such as:
    • the need for construction
    • the nature of the construction
    • the costs of construction, and
    • to provide counter-proposals

Crown land and councils

The Fences Act 1975 (SA) does not apply to land:

  • comprising a single parcel of more than one hectare in area; or
  • in a public road or road reserve
  • held by the Crown or any council for the purposes of controlling access to a road or proposed road from land abutting the road
  • used by the Crown or any council solely or principally for the purpose of drainage

What is fencing work?

  • The erection of a new fence
  • Replacement, repair or maintenance work in relation to an existing fence — the replacement, repair or maintenance can be of the whole or any part of a fence and includes trimming or maintaining any vegetation that serves as a fence (eg hedge) and cleaning, deepening, straightening or altering any watercourse, ditch or channel or other geographical configuration that serves as a fence

Costs in relation to fencing work

Fencing work costs include:

  • The cost of any survey reasonably required for the work to be carried out
  • The cost of any work reasonably required to erect, maintain, replace or repair a fence
  • Where an adjoining owner has done or proposes to do any of the work personally, a reasonable amount for his/her labour

Do I need my neighbour’s consent if I am prepared to pay for all costs myself?

Even if you want to erect a new fence at your own cost, you should still get the permission of your neighbour to remove any existing fence. This is because once a fence is erected, it is jointly owned by both neighbours and should not be damaged or removed without the consent of the other [Matthews v Christie [2000] SADC 9].

You do not have the right to go onto your neighbour's property to do fencing work. You will either have to obtain permission or serve a notice on your neighbour, see Access to property. Even if one neighbour is proposing to pay the total cost any objection by adjoining owner should be dealt with by mediation or an application to the court.

Sharing costs between neighbours

A neighbour has no legal obligation to contribute to the cost of fencing work unless they have agreed to pay or the Fences Act 1975 (SA) procedure has been followed, or urgent repairs are required.

There is no strict formula used by the courts to determine the sharing of costs between neighbours. As a general rule it will be assumed that each neighbour receives an equal benefit from the fence and therefore should contribute equally to costs. However, where it can be shown that one owner wants a better than adequate and the adjoining owner is happy with an adequate fence, the owner requesting the more expensive fence will have to pay the difference in cost between the two options.

Do I need my neighbour's consent?

Fences should be regarded as a joint asset between neighbours. Even if your neighbour has not paid for the fence they are still a joint owner. This is because a fence on the boundary is legally considered to be part of the land on each side.

If you intend to remove or alter an existing fence, you should have your neighbour's permission or, failing that, a court order. If you want to put up a fence where there has not been one before, your neighbour has a right to object. It makes no difference if you intend to pay the total cost. It is therefore sensible to talk to your neighbour first.

Where both neighbours agree

If you and your neighbour agree on the work and the cost, you do not have to follow the procedure under the Fences Act 1975 (SA). However, even if you do not follow the procedures, it is wise to make a written agreement, signed by both of you. It should state clearly what work is to be done, what materials will be used, what quotes have been accepted, and how the cost will be shared. For an example of such an agreement see the sample agreement at the bottom of this page. Attach copies of quotes for all work.

No agreement

If you and your neighbour don't agree (or are unlikely to agree) you must use the Fences Act 1975 (SA) notice procedure. It is the only legal method if you want to build, repair or replace a boundary fence and you want your neighbour to contribute to the cost but they don't agree. The process involves filling out a form (called a notice of intention) with details of the work you propose and serving it on (legally delivering it to) your neighbour for response.

If you do not follow the procedure correctly your neighbour does not have to contribute (see the case of Jackson and Jackson v Takacs below).

Notice of intention (where there is no agreement)

Depending on the type of work you are proposing there are different forms to be used.

If you want to erect a new fence you will need to serve a Notice of Intention to Erect a Fence [see Fences Act 1975 (SA) Form 1]. If you wish to repair, replace or carry out maintenance work on an existing fence then a Notice of Intention to Perform Replacement, Repair or Maintenance Work [see Fences Act 1975 (SA) Form 2] is the relevant form.

Time limits to respond

Under the Fences Act 1975 s 6, after serving the notice you must then wait for thirty days to see if your neighbour serves a cross notice [see Fences Act 1975 (SA) Form 3] objecting to the proposal and whether they raise any counter proposals (i.e. what they want done to the fence instead). Unless your neighbour has agreed to your proposal you must wait the full thirty days before commencing work and if you do not you will lose the right to recover costs from your neighbour (see the case of Jackson and Jackson v Takacs below). If you don't agree with the counter proposals served by your neighbour you have thirty days to object in writing.

How to serve a notice

A fencing notice (a Notice of Intention or a cross-notice) can be served by either:

  • giving the notice personally to your neighbour
  • sending the notice by registered post

If the identity or address of the adjoining owner cannot be found, the notice should be placed in a prominent place on the land and the work not started forthirty days to allow time for a cross notice to be served [Fences Act 1975 (SA) s 9]. Ideally, court orders should be obtained on the Notice of Intention and on the contribution the adjoining owner should pay. The local council or the Lands Titles Office can provide the name and address of an adjoining owner.

A land owner is deemed to have agreed to a proposal (or counter proposal) if an objection in writing is not served within the 30 days. Both neighbours are then normally bound by the terms of that notice including the amount of money that each must pay.

What if the work is not commenced or not completed?

If, after agreement has been reached, the person who initiated the proposal does not start or discontinues the work for more than twenty eight days, the adjoining owner can proceed with the work and recover the amount due under the original agreement [Fences Act 1975 (SA) s 8(3)]. The work must be completed within the time agreed or as ordered by the court. If no specific time frame has been agreed or ordered, work must be completed within four months [Fences Act 1975 (SA) s 8(6)].

Urgent repairs and replacements

If there is an urgent need to repair a dividing fence that has been damaged or destroyed, one owner can proceed without giving notice to the other. They may also recover either half the cost or whatever the other owner would have had to pay if the notice procedure was followed, whichever is the lesser amount [Fences Act 1975 (SA) s 16(1)].

For more information about fencing and relevant forms see the sa.gov.au website.

SAMPLE AGREEMENT

Fencing work agreement
The following notice is an example of how to record an agreement regarding fencing work where both parties are agreed on the work to be done and the costs.

FENCING WORK AGREEMENT

Between

________________________________________________________________

owner of land at:

________________________________________________________________

________________________________________________________________

and

________________________________________________________________

owner of land at:

________________________________________________________________

________________________________________________________________

We agree to proceed with fencing work along the boundary between our properties described above. The particulars of the fencing work are as follows:

________________________________________________________________

________________________________________________________________

________________________________________________________________

________________________________________________________________

Total cost of fencing work $____________________ as per attached quote from

__________________________________________dated ........../............./.........

____________________________________ will pay for the fencing work and will

be paid the sum of $ ................................ by the adjoining owner on

completion OR by regular payments of $ ........................... commencing

on .........../............../......... and continuing weekly/fortnightly/monthly until the

contribution is paid in full.

Signed by Date

________________________________________________________________

Signed by Date

________________________________________________________________

Jackson and Jackson v. Takacs

The Jacksons gave their neighbour notice that they wanted to put up a fence. Their neighbour told them he could not afford to pay any money (contribute) but failed to serve a cross notice objecting to the Jackson's notice. However the Jacksons went ahead and built the fence without waiting the thirty days. When the neighbour would not pay, the Jacksons took him to court.

The neighbour did not have to pay any money towards the fence as he had not agreed to pay, nor could it be presumed that he agreed to pay before the thirty days was up. Even though the neighbour had not served a cross notice, the Jacksons were not able to recover any money for the fence as they failed to wait the thirty days before building the fence.

Source: Jackson and Jackson v. Takacs Small Claim No. 2701/84 Southern Districts

Disputes

Objections to proposals and issues with costs

An objection to a fencing proposal may be to a specific item or it may be a general objection. It is not necessary to give any reasons for the objection [Fences Act 1975 (SA) s 6]. If a person receives either a notice or cross notice and believes the proposal is reasonable but cannot afford to pay, it is a good idea to negotiate payment with the neighbour, rather than objecting to the notice. A court will not reject a reasonable fencing proposal simply because a neighbour cannot afford it. No objection can be made to the work after the time allowed by law.

Going to court

If the neighbours cannot agree about any aspect of the fencing work, either owner can seek an order from the Magistrates Court. Generally, the matter will be heard in the Minor Civil Claims Division of the Magistrates Court, where parties represent themselves unless both agree to have lawyers present [see Magistrates Court Act 1991 (SA) s 3].

What powers does the court have?

Under section 12 of the Fences Act 1975 (SA) the court has extensive powers and can make determinations about:

  • whether a fence should be erected
  • the type of fence
  • the location of the fence
  • who will do the work
  • when and how it will be done
  • sharing costs
  • orders in relation to entry or access to the adjoining property

What is an adequate fence?

Where there is a disagreement about the type of fence to be erected, the court will consider what the standard of good fencing in that particular area is and the purpose for which the adjoining lands are used [Fences Act 1975 (SA) s 12(8)].

If the proposed fence is more substantial than the usual type of fence in the area (for example, a 1.8 metre colorbond fence in an area where a 1.5 metre galvanized iron fence is normal), the court may allow the more substantial fence to be erected and order that the neighbour only pays half of the cost of the adequate fence.

Where residential blocks adjoin rural blocks of more than 0.8 hectares, an adequate fence is the cheaper of the rural and residential fencing options. A court is only likely to stop a particular fence being erected if there is a covenant on the title of the land prohibiting that type of fence. There is no clear guideline as to what type of fence will be permitted when two neighbours each propose equally meritorious fences. In most cases, the court will try to get the neighbours to reach agreement.

Disputes about costs

Although neighbours may agree about the type of fence to be erected they might still disagree about the sharing of the cost. Again, an order as to what each must pay can be obtained from the Magistrates Court. The court will assume that each will get equal benefit from the fence, but if it can be shown that one neighbour will get greater benefit, it can order that person to pay more or even all of the cost. If an owner cannot afford the amount awarded, the court can order payment by instalments. If the adjoining owner cannot be found, the court can make an order in that person's absence [Fences Act 1975 (SA) s 9].

Access to property

Permission to enter adjoining land

A land owner's permission should be obtained before going onto their land to carry out construction or repair work. If this is not possible, a letter can be served on the neighbour (giving the date and a reasonable time of the proposed entry onto the land) at least two days before commencing the work. Provided the Fences Act notice procedure has been followed, the proposer has a right to enter the neighbour's land and to proceed with the fencing work [Fences Act 1975 (SA) s 18]. Necessary equipment and vehicles can be brought onto the neighbour's land although care should be taken not to cause damage. In the case of an emergency, notice is not required [Fences Act 1975 (SA) s 18].

Common questions about fences

What side of the fence should the railings be on?

There is no rule as to which side of a fence the railings should be. If neighbours cannot agree on which side the railings should go, they should consider a type of fence without visible railings.

Are there any rules about where a fence has to be erected?

Normally, a dividing fence should be erected on the boundary. It can be erected elsewhere [Fences Act 1975 (SA) s 17], but this might lead to problems, particularly if the neighbour does not agree. If one owner erects a fence inside a boundary the neighbour may be tempted to make use of the land thereby creating possible future problems. However, legal ownership of the land will remain unchanged in virtually all cases [Fences Act 1975 (SA) s 17 and Real Property Act 1886 (SA) pt 7A]. Also, regardless of where the fence is located it is still the legal responsibility of both neighbours.

If there is a dispute about where a fence should go or is currently located, then usually the only way to determine this is to get a survey done to confirm the correct boundaries of your property with the adjoining properties. If the survey can be established as having been necessary for the fencing work proposed you can seek a contribution from your neighbour, see Costs in relation to fencing work.

In the case of existing fences that are not located on the proper boundary the court does have the power to order the removal of the fence, but this can be quite expensive. However, in the event that the fencing line is only a minimal variation from the proper boundary the court is unlikely to order the relocation of the fence. A court can order compensation be paid to a person for the loss of occupation of their land as a result of the erection of a fence not on the boundary, and this will usually be the remedy preferred by the court.

Brick and pillar fences

A fence should normally be built on the boundary line, however a brick and pillar fence, because of the extra space it covers, should be built on the proposer's property, unless the owners have agreed on some other position.

Who owns the fence?

A fence is a joint asset of both adjoining owners – regardless of who paid for it. Both parties can use it to grow vines or attach trellises, provided this does not damage the fence.

Damage or removal of a fence

If a fence is damaged or destroyed because of the wrongful act or negligence of one owner, that person is liable for the cost of repairs [Fences Act 1975 (SA) s 16(2)]. In this case, the adjoining owner can have the fence repaired and claim the cost as a debt in the Magistrates Court.

If a fence is removed (even if only temporarily) by a neighbour without the consent of the adjoining owner, or without following the procedure under the Fences Act, they may be liable to compensate the other owner. It is therefore a good idea to obtain the agreement of the adjoining owner beforehand.

How high can a fence be without requiring council approval?

Brick (masonry) fences over one metre high and all other fences over 2.1 metres high (except post and wire fences) will generally require development approval from the local council. Fences adjacent to road intersections and fences around swimming pools generally require approval as well [see Development Regulations 2008 (SA)].

Serving a notice where adjoining block is a vacant block of land

You may have difficulty telling who is the owner of the land if it is in the process of being sold. If a contract of sale has been signed, it is best to serve both the seller and the purchaser. Alternatively, it may be better to postpone serving the notice until the new owner takes possession of the property. A purchaser will not be registered as the owner until the title is legally changed into their name.

Under section 7(1) of the Land and Business (Sale and Conveyancing) Act 1994 (SA) a seller has an obligation to advise the purchaser of any notices issued under the Fences Act 1975 (SA) including any cross-notices on the Form 1 (Statement under section 7).

I want to serve a fence notice on my neighbour but I don’t know who owns the land?

If you do not know who owns the land, contact your local council or the Lands Title Office to find out who they are. If, after making reasonable enquiries, you cannot identify or find the other owner, your Form 1 or Form 2 notice must be prominently displayed on their land. If no objection or cross-notice is received after 30 days, you may proceed with the fencing work. When the other owner or the new owner later becomes known, you can require payment and take legal action if they fail to pay. In court you will have to prove that you made reasonable enquiries to find them and that the notice was prominently displayed.

Rental properties

As a general rule a landlord cannot recover the costs of fencing under a residential tenancy agreement except where the work was required as a result of an act or fault of the tenant.

Emergency repairs

Where an emergency has occurred and the situation is so urgent that notice cannot practicably be given (for example, where a storm-damaged fence allows animals to escape) an owner may carry out necessary repairs without giving notice to their neighbour and still recover part of the cost. However, even in such cases it is recommended that whatever notice can be provided be given. Fencing of a type similar to what was already there should be used when organising repairs or replacements.

Trellises and screens

Both neighbours may attach screens or trellises to a fence, provided they do not damage it. Freestanding screens or similar structures remain the property of one neighbour and are not considered fences. As a general rule, development approval is not required for a trellis or screen.

Walls on the boundary

A wall to a building that is located on the boundary is not a fence, even though it may serve as one. A boundary wall remains the sole property of the building owner and any dispute about it cannot be dealt with under the Fences Act procedure.

See also our booklet Fences and the Law available from our Publications page.

Swimming pool fences

The standards for swimming pool fences are set out in the following legislation:

All swimming pools are required to have safety barriers or fencing to restrict access by young children. Enforcement of swimming pool safety requirements is the responsibility of the local council.

Pools constructed before 1 July 1993 must be made compliant with current standards before the sale of the property. However, pools constructed on or after 1 July 1993 only have to comply to the standards in force at the time consent or approval for the construction of the pool was made.

It is the responsibility of the owner to make sure that these standards are met before the property is sold.

The maximum penalty for failing to ensure that safety standards are met prior to selling a home with a swimming pool is $15 000 [s 71AA Development Act 1993].

The required safety measures are outlined in the Australian Standards and more detail can be found at the sa.gov.au website. The pamphlet 'Is your swimming pool kid safe?' contains a useful summary of safety requirements.

Construction of new swimming pools

Notification must be made to the local council either by the builder or owner when construction of a new swimming pool is completed. Notification must also occur at the point that approved swimming pool child-safety barriers have been completed. A permit from SA Water must also be obtained before a new swimming pool is filled with water [see Part 6 of the Water Industry Regulations 2012 (SA)].

Where a swimming pool is completed after 22 September 1994, a person must not fill the pool with water unless the pool is enclosed by a barrier complying with Performance Requirement GP1.2 – Volume 1 and P.2.5.3 – Housing Provisions – Volume 2, of the Building Code [Development Regulations 2008 r 83B].

Maximum penalty: $4000

Fences Act forms

If you have an agreement with your neighbour about the construction, repair, maintenance, or replacement of the fence, including the costs, then it is not necessary to complete the forms below. However, it is a good idea to put your agreement in writing. An example of a fencing work agreement can be found in our publication Fences and the Law.

Form 1 – Notice of intention to erect a fence

This notice must be served on your neighbour(s) if you intend to erect a new fence (where there is no fence currently).

You must provide the following information:

  • Length and position of the proposed fence
  • Cost
  • The amount you wish to recover from the other party
  • The name and address of any contractor or other person who is to perform the work

If the fence you are proposing encroaches on the other party’s property you will need to specify details of the compensation you will pay for loss of occupation of land.

Form 2 – Notice of intention to perform replacement, repair or maintenance

This notice must be served on your neighbour(s) if you intend repairing or replacing an existing fence.

You need to provide the following information:

  • Describe what sort of work you are proposing
  • Cost of the proposed work
  • The amount you wish to recover from the other party
  • The name and address of any contractor or other person who is to perform the work

Form 3 – Cross-notice

This notice is used in response to either a Form 1 or Form 2 notice to advise the person who has issued the notice about fencing work of any objections and counter-proposals you may have.

You need to specify:

  • What objections you have
  • Any counter-proposals you have to make

Forms are also available from the sa.gov.au website.

    Fences  :  Last Revised: Tue Apr 19th 2016
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