Good Fences Make Good Neighbours

Fences and fencing work create a lot of issues and disputes between neighbours which can be very costly, time consuming and stressful to resolve.

Happily, the Fences Act (SA) sets out a process for gaining agreement between neighbours for the construction of a fence on the proper boundary between neighbouring properties.  If the process set out in the Fences Act is followed, a fence can be built in a way that minimises the potential for misunderstandings and therefore expensive Court actions. 
This concept also applies to builders who are required to build a new fence on a boundary as part of their scope of works under their building contract.
The Fences Act also provides a means of determining how much each neighbour should contribute to the cost of building a new fence.
The starting point is that a fence is property jointly owned by the adjoining neighbours.  This rule applies even if the fence is not built on the proper boundary, and even if one neighbour has paid entirely for the cost of building the fence.  
Therefore each adjoining neighbour should contribute 50% to the cost of constructing a new fence, but only if a new fence is actually needed instead of repairs being sufficient.  Equally, adjoining neighbours must share 50/50 in the cost of repair work to a fence. 
However a neighbour is only required to contribute 50% of the cost of a fence that “conforms with general standards of good fencing existing in the locality … and is adequate for the purposes of the owner against whom contribution is sought”.  
It is generally accepted that in metropolitan Adelaide an “adequate fence” is a “good neighbour” colour bond fence between 1.8 m to 2.1 m (depending on Council planning regulations) in height. 
Therefore if your neighbour wants to build a brick fence 2.5 m high, you would only be obliged to contribute an amount equal to 50% of the cost to install a 1.8 m – 2.1 m high “good neighbour” colour bond fence, which would be significantly less. 
However, the Magistrates Court can adjust the contribution each adjoining owner is required to pay to take into account the benefit each neighbour actually receives from the fence.  If one neighbour benefits from the fence more than another, then the neighbour who benefits most from the fence will pay more for the cost of constructing the fence. 
Further, unless you agree with your neighbour to pay a contribution to the cost of building the fence, or unless the procedure under the Fences Act has been followed to the letter, you do not have to contribute to the cost of building a new fence.  Remember, even if you do not contribute to the cost of building a new fence, you will still be a 50% owner of that fence. Because of this, a neighbour should not install a new fence unless they have their neighbour’s express written approval, and their written agreement that they will pay an agreed amount towards the cost. 
However, if you cannot obtain your neighbours agreement to build a new fence, you must then follow the procedure set out in the Fences Act in order to be able to lawfully build a new fence, and recover a contribution to the cost of building the fence from your neighbour. The procedure under the Fences Act for obtaining approval and contribution to the cost of a new fence, or repairs to an existing fence, is broadly as follows:
  1. You must serve on your neighbour a written notice called either a “Notice of Intention to erect a fence” (in the case of a new fence) or a “Notice of Intention to perform remedial, repair or maintenance work” (in the case of repair work).The notices are quite detailed and are required to include information regarding:
    • the length and position of the proposed fence;
    • the cost to install the new fence;
    • the amount (if any) you wish to recover from your neighbour for the cost of installing the fence; and
    • the name and address of any fencing contractor or other person who will actually build the fence.
  2. Your neighbour then has 30 days in which to serve a “Cross Notice” on you in response.The Cross Notice allows your neighbour to either reject the proposal set out in the Notice of Intention entirely, or propose changes to the design etc of the fence.
  3. If you don’t agree with what is proposed in the Cross Notice, you can then serve a “Counter Notice” rejecting the Cross Notice, or do nothing, in which case the proposal made in the Cross Notice becomes binding on both neighbours.
  4. It is fundamental to the operation of the Fences Act notice procedure that if you do not respond to a notice, you are taken to agree with the content of the notice.Therefore, if you disagree with what is proposed in a notice, it is essential that you respond in writing with a Cross Notice, or Counter Notice, within the specified timeframe of 30 days.
  5. If an agreement is reached via the exchange of notices, the neighbour who initiated the notice process can then build the fence, and recover the agreed contribution from their neighbour.However, the permission of your neighbour to enter the land and build the fence is still needed.
A common source of dispute between neighbours is where the “proper boundary” between the properties actually is.  The only way to conclusively determine the “proper boundary” is to engage a licensed surveyor to carry out a boundary survey.  Even then I have seen disputes arise about whether the licensed surveyor has correctly identified the proper boundary. 
The above explanation of the notice process under the Fences Act is only a summary, and there are many, many pitfalls and nuances in the legislation.  If you have concerns about your neighbour’s attitude to building a new fence, talking to a lawyer about the issue before you do anything could save you a lot of time, money and stress. 
Under the Fences Act the South Australian Magistrates Court is given extensive powers to resolve fencing disputes.  The Court can make orders and resolve disputes on the following issues:
  1. Whether the fence should be erected;
  2. The type of fence to be built;
  3. The exact location of the fence;
  4. Who will carry out the building work;
  5. When and how the work is to be carried out;
  6. How much each party is to contribute to the cost of the fence; and
  7. The Court can also make orders for entry onto the property in order to build the fence.
However, be aware that the Magistrates Court does not take kindly to “people behaving badly”, so be prepared for harsh words from the Magistrate if your fencing dispute is not legitimate, but instead based on personal animosity and emotion. 
You should also be aware that the Magistrates Court is unlikely to order the removal and re-location of an adequate fence if it is only a small distance from the proper boundary.  Instead the Court will probably order that compensation be paid to the neighbour who has “lost” that small portion of land. 
Swimming pool fences have their own special legislative requirements, as set out in the Swimming (Safety) Act 1972 and the Development Act 1993 (SA) & Regulations, which is soon to be amended to the Planning, Development & Infrastructure Act 2016.
Tom Walker
5 December 2016