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By Michael Yardney
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Know your rights when you have a fence war with your neighbours

Are you having a fence war with your neighbour?

You’re not alone.

Boundary fences are one of the major causes of property disputes between neighbours.

So, do you know your rights when a new dividing fence needs to be put up between you and next door?

And what happens if your neighbour suddenly announces he wants to build a brand new fence on the boundary you share and he wants you to pay half, but you’re adamant the existing fence is fine?

It’s going to be hard not to get angry and turn it into a dispute, isn’t it?

Fence

Fact is, 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.

However, it seems the most common disputes are those to do with fencing.

And that’s because fencing is a tricky issue because most boundary fence disputes are “30% law and 70% emotion”.

That’s why they generally create a disturbance way out of proportion to the actual issues.

And while knowledge about all the potential issues, the relevant laws, and your rights and responsibilities when it comes to fencing is powerful, it’s often people’s attitude that needs to change to ensure sensible resolutions.

So ask yourself the question:

Is it really worth having a toxic relationship with your neighbour over a fence and a few thousand dollars?

What the law says

Australian fencing standards for dividing fences are set by state governments to regulate the building and maintenance of these fences, and while these laws are broadly similar across the country, they do differ in each state so may be worth speaking with your local council for the exact legal requirements in your area.

The last resort would be speaking to your solicitor but it’s worth knowing that while the law isn’t perfect, it does have a significant role in having these disputes resolved without people belting each other to death in the streets.

In New South Wales, for example, under the Dividing Fences Act 1991, a dividing fence is defined as a fence that separates the lands of adjoining owners.

It may be of any material, a ditch, an embankment or a vegetative barrier such as a hedge.

It isn’t a wall of a building, nor is it a retaining wall – except if it’s used as a foundation or support for the fence.

The act defines a ‘sufficient’ dividing fence as one that “adequately separates the properties”.

For example, a paling fence in a residential area, or a wire and steel star post fence in a rural area.

In most states, adjoining owners must share the cost of the fence.

That obligation only occurs if the fence is inadequate or there is no fence.

But there are exceptions:

  • If one neighbour wants a higher standard fence than required, then they must pay the additional cost: or
  • If one neighbour damages the fence, they have to pay for the entire cost of restoring it.

In most states, the fencing Acts don’t apply to property boundaries adjoining unoccupied Crown land.

Dividing fence rules and standards

New South Wales

  •  Standards for dividing fences in NSW are covered by the Dividing Fences Act 1991.
  • The Act states that neighbours are required to contribute equally to the costs of constructing, replacing, repairing or maintaining a shared dividing fence
  • However, if both parties can’t come to an agreement, conflict resolution applications can be made at a Community Justice Centre, the local court, or the NSW Civil and Administrative Tribunal.
  • Regulations for dividing fences in NSW are affected by factors such as your local LGA and the age of the structure you want to fence around, with some fencing materials not permitted under heritage protection laws.
  • It’s worth checking your local council website to understand the guidelines in your area.

Victoria

  • Standards for dividing fences in Victoria are dealt with in the Victorian Fences Amendment Act 2014
  • Installing an adjoining fence between two properties in Victoria requires collaboration between the neighbours, but the Act stipulates rules around who pays for a dividing fence, how it should be constructed and how to deal with boundary disputes.
  • Generally, a building permit will only be required for a side boundary or dividing fence above 2 metres in height. 

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Queensland

  • Associated with a residential house
    • Less than 2 metres high
    • Not a swimming pool fence
    • Not a retaining wall
    • Not restricting water run-off from a property
  • However, if your property is on a corner, fencing requirements are a little different to ensure you allow a clear line of sight for drivers.
  • In Queensland, fencing disputes that cannot be resolved between neighbours can be referred to the Queensland Civil and Administrative Tribunal. You can check out the Queensland government’s step-by-step guide to resolving fence disputes here.

South Australia

  • Standards and regulations for dividing fences in SA are dealt with in the Fences Act 1975
  • 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.
  • When erecting a boundary fence in South Australia, like in every other state, the process must involve your neighbour. You should check with your local council or state government about whether your fence needs development approval.
  • Restrictions generally apply for:
  • Masonry fences that exceed 1 metre
  • Any other fence higher than 2 metres
  • Fences higher than 1 metre and less than 6 metres from a road intersection
  • Brush fences

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Western Australia

  • In WA, the Dividing Fences Act 1961 outlines the process for sharing the cost of a dividing fence with your neighbours and how to handle disputes.
  • If an agreement cannot be reached, a resident can make an application to the Magistrates Court to resolve the issue.
  • In many Western Australian council areas, brick and masonry fences require a building permit, while simpler dividing fences generally do not.

Australian Capital Territory

  • Standards for dividing fences in the ACT are dealt with in the Common Boundaries Act.
  • Some small fences are exempt from building approvals, but beware - certain criteria around building materials apply

Northern Territory

  • The Northern Territory Fences Act sets out the rules about fencing for NT residents.
  • The NT government encourages residents to utilise the NT Community Justice Centre, to mediate fencing disputes.
  • In the NT, you don't need building approval for a fence if it's less than 1 metre high or does not offer wind resistance. What's more, some areas of the NT, such as Darwin, don't require you to have a fence around residential property.

Tasmania

    • The fence height exceeds 1.2 metres and is within 4.5 metres of a frontage.
    • The height of your fence is beyond 4.5 metres of frontage and higher than 2.1 metres.
    • Your property is on a corner and has more than one frontage.

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What is the legal height of a fence between neighbours?

The legal height of a fence between neighbours differs slightly in each state, and the rules sometimes vary by the local councils which occasionally have their own overriding regulations in place, so it's important to seek advice to make sure your fence will comply with the local fencing standard.

In Victoria, if the height of the fence is over 2m, you will need a permit.

As a general rule in New South Wales, a residential fence should not exceed 1.8m in height.

In Queensland, a dividing fence is considered sufficient if it is between 0.5m and 1.8m high although the main rule of thumb in Queensland is that if you and your neighbour agree that your dividing fence is ‘sufficient’ then it meets the local standard.

In the ACT, side or rear boundary fences between neighbours up to 2.3m above natural ground level and located behind the front building line are permitted but it is a government recommendation that you consult the Common Boundaries Act 1981 before erecting a boundary fence around your property.

In most cases in the Northern Territory, you will need a permit to build a fence that exceeds 1m in height, although in some areas, you aren’t required to have a fence around residential property.

In South Australia, boundary fences are allowed to reach 2.1m in height before a permit is needed unless it’s a masonry fence, which is allowed to be 1m before a permit is needed.

Each different area in Western Australia has its own regulations when it comes to fence height but generally, your fence should be between 1.2m to 1.8m in height.

In Tasmania, you will need a planning permit if your fence exceeds 1.2m in height but if your fence is beyond 4.5m of a frontage, your fence can be higher.

Who pays for a fence between neighbours?

Both neighbours have the same rights and obligations when it comes to building or repairing a dividing fence, and Australian law states that neighbours must share the cost of building a dividing fence between the properties equally.

This means that if your neighbour wants a fence, but you do not, you are still responsible for sharing the cost of building it.

The only exception is where one neighbour wants more work done than is necessary for a ‘sufficient dividing fence’ - this would mean they pay the extra cost.

For example, if your neighbour needs a higher fence to keep their dog from getting out, they should pay the extra cost or provide extra materials and labour to build the fence to the height they need it above what would otherwise be ‘sufficient’ for your needs.

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Can my neighbour put up a fence without my permission?

It is best that the two neighbours come to an agreement before any work is done - especially if the cost is expected to be split evenly.

Technically, if it’s within their property boundary, your neighbour has every right to do whatever they want, including installing a fence so long as it meets fencing height standards.

But without an agreement, an owner does not have permission to enter the adjoining property to carry out the fencing work, and doing so may amount to trespass.

How close can you build to a boundary fence?

Your local council will be able to tell you the regulations for how close to the boundary line you can build your property (or extension) and what sort of structures are acceptable.

Generally, regulations require a new building to be at least 200mm away from a boundary, but this differs depending on the type of building, plot size, location and local council rules.

It’s also worth remembering that site coverage regulations say that buildings should not exceed the maximum permitted site coverage (roughly around 60% but again this would differ by state and council).

Can my neighbour remove the fence between our properties?

No, your neighbour should not remove the dividing fence without getting one of the following:

  • ​Your agreement
  • A Fencing Order from the Local Court or local state’s Civil and Administrative Tribunal.

If your neighbour removes the fence without your consent, your neighbour may be responsible for the full cost of replacing it.

And if in the process​ of removing the fence, your neighbour enters your property without your consent, your neighbour may have unlawfully trespassed on your land.

It’s best that property owners contact their local municipality to find out exactly what laws apply to their property.

Fence5

Can a neighbour attach something to my fence?

The simple answer is yes!

A boundary fence is a joint asset and responsibility of both property owners and therefore both neighbours can attach something - such as a screen, trellis or grow vines - to the fence provided it does not damage it.

Can a neighbour paint my fence?

As above, a dividing fence is owned by the property owners on each side of the fence so any replacement or maintenance costs are shared by both owners.

That means you own the side facing your property and your neighbour owns the side facing theirs and can paint it any colour they like.

They cannot, however, paint your side without permission.

Approaching your neighbours

It’s normal to feel a little nervous about approaching your neighbour, especially if you don’t have an existing relationship or you've had issues with them in the past.

You need to have your neighbour’s consent or to have followed the right legal process before any work starts.

If you don’t, your neighbour is not legally obliged to pay anything.

And boy can it be frustrating if you’ve tried to approach your neighbour and they won’t engage with you.

Don’t assume that it means that they don’t want the problem solved.

Your neighbour might have issues you’re not aware of. Try to think about it from their perspective:

  • Is the timing not right for them?
  • Do they not feel confident?
  • Do they need more information or advice?
  • Do they need someone to help them to have that conversation with you?

Think about what you could do differently to encourage them to talk, and what might help them to feel comfortable about talking to you.

Fence4

So what happens if you or your neighbour decide to build a new boundary fence?

According to most state laws you need to serve your neighbour with a ‘notice to fence’, but most lawyers would recommend informally approaching your neighbour before that.

A Fencing Notice is a formal document that outlines a proposal to repair, replace, or build a new fence.

Your neighbour has 30 days to respond from the day they receive the Fencing Notice.

It’s a good idea to send it to them by registered post so there is proof that they have received it.

If they agree, you can build as per your proposal. If not, you’ll need to negotiate a solution.

But before you send them a written notice I suggest having a discussion with your neighbour with a view to coming to an agreement and avoiding conflict.

If your fence needs a repair or upgrade it’s usually a good idea to present your neighbour with a fence quotation and give them an opportunity to get their own quote.

Similarly, if your neighbour approaches you to contribute to a fence, be reasonable and realistic.

Of course, if it’s an investment property there are going to be tax advantages for what you spend on the fence anyhow.

Just to make things clear, if you and your neighbour agree on everything, many people just sign the agreed quote for the job to formalise the agreement.

But keep in mind that if you don’t use a Fencing Notice, it’s harder to prove there was an agreement if something goes wrong.

Without a Fencing Notice, any dispute will be settled under contract law and not the Fences Act. This will make it a lot harder to resolve a dispute.

Finding the owner’s contact details

If you don’t know who owns the neighbouring property:

  • if it’s a rental property, ask the current tenant for the property manager’s or owner’s details
  • call your local council and say you want to send the owner next door a Fencing Notice but don’t have their contact details
  • run a title sear to find the owner’s details( fees will apply).

If you still can’t find the owner you should get legal advice.

If you want the owner to contribute money you’ll need a Magistrates’ Court order before any work begins.

What if your neighbour says no

The problem is a lot of neighbours will say no to your initial approach and this can trigger a dispute.

According to the Department of Justice in Victoria, disputes arise over a variety of issues

  • One neighbour feels the current fence is adequate, or just needs repair;
  • One neighbour blames the other for the need to replace the fence;
  • Both neighbours agree they need a new fence, but one or both can’t afford it at present;
  • Neighbours disagree about the position of the title boundary;
  • The neighbours want fences of different heights;
  • The neighbours disagree about whether the front end should ‘rake’ or taper down for visibility;
  • One neighbour fears the weight of attachments like trellises may damage the fence.

The list seems endless.

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Some common fencing disputes

The most common disputes are over location, type and cost of the fence and the fence height.

There are a lot of arguments about neighbours who want different kinds of fences, where the boundary is, if they’re getting a paling fence, who gets the paling side and who gets the non-paling side.

The most common dispute is over where the fence goes.

Surprisingly, in most cases, the existing fence is not exactly on the title boundary.

Builders aren’t surveyors and near enough is often good enough meaning frequently the fence isn’t actually on the title boundary.

While this generally doesn’t make much difference – it’s only a few centimetres out, some people get very excited about it and will go to quite an amount of cost to get the fence on the boundary.

Establishing the title boundary involves a surveyor to establish where it is and its relation to the fence.

Another big issue is aesthetics.  

What happens if the neighbour wants to put up a large fence that you deem ugly?

While you can actually oppose it on those grounds, your neighbour has the option of building an ugly fence on his side of the property.

Mediation

Mediation or Court?

So, what happens if you just can’t reach an agreement with your neighbour?

The next step is mediation, which is designed to keep the issue out of the courts and hopefully find a resolution.

Most states have a mediation service which is “neutral” and I’ve outlined these resources above.

If this doesn’t work, the next step is the court, where a decision will be handed down.

But going to court can be expensive and takes time.

Talking to your neighbour is almost always cheaper, fairer and simpler than going to court.

A court should really be the last step that you take to resolve your issue and if you lose you pay all of your own costs and two-thirds of the other party’s costs, and vice versa if you win.

With court decisions, you’re left with an unhappy neighbourhood relationship and the annual Christmas street party isn’t going to be much fun, is it?”

The legal costs you can spend on a dispute can possibly outweigh the expense of the fence, so often you’re better off paying for the whole expense yourself than going to court and paying solicitors' legal fees.

Unfortunately, this logic is not always appealing to people.

About Michael Yardney Michael is a director of Metropole Property Strategists who help their clients grow, protect and pass on their wealth through independent, unbiased property advice and advocacy. He's once again been voted Australia's leading property investment adviser and one of Australia's 50 most influential Thought Leaders. His opinions are regularly featured in the media.
619 comments

We need to change part of a deteriorating timber boundary fence for our new pool to be compliant. We are paying in full to do this as we need it for the pool, but the neighbour won’t let us change this part of the fence. Do we have the right to just ...Read full version

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