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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Fence Disputes (WA)


Dividing fences can be a source of disagreements between neighbours. A dispute can arise when the owners of adjoining properties disagree about the fence construction, maintenance or position. In Western Australia, fence disputes are governed by the Dividing Fences Act 1961.

Legislation

Under the Act, a “dividing fence” is a “fence that separates the lands of different owners” whether it is on the common boundary or not.

A “sufficient fence” means:

  • any fence prescribed by a local law as sufficient for that part of the local government district; or
  • any fence of any description and quality which complies with local law; or
  • where no local law or agreement is made:
    • any substantial fence that can ordinarily resist the trespass of cattle or sheep;
    • any fence determined as sufficient by a court under the Act.

Adjoining owners are liable to contribute equally to the cost of a building a dividing fence.

Notices

An adjoining owner should issue a notice to the other adjoining owner that a fence needs to be built and that they should contribute to the cost. The notice should:

  • specify the boundary to be fenced, or if it is impracticable to build a fence on the common boundary due to geographical features, the line upon which the fence is to be built;
  • a proposal for the fencing;
  • the kind of fence.

If a fence needs to be repaired, one land owner can give notice to the other land owner requiring help to repair the fence. The notice can state that the land owner issuing the notice is prepared:

  • to repair the fence, with the cost shared equally;
  • to have the other land owner repair the fence, with the cost shared equally;
  • to have a third party repair the fence, with the cost shared equally.

The notice recipient has 14 days to advise the other owner which of the three options they choose, or to dispute the need for fence repairs. If the notice recipient disputes the need for repairs, the owner who issued the notice can apply to a court to determine the dispute.

If a fence is damaged or destroyed by a weather event or an accident, a land owner on either side of the fence can immediately repair it without notice and claim half of the cost of this from the other owner. If a fence is damaged or destroyed by fire or a tree originating on one side of the fence, the owner of the land on that side of the fence is bound to repair or renew the fence as soon as practicable. If they do not repair or renew the fence, the owner of the adjoining land can repair or renew the fence and claim the full cost from the defaulting owner.

Agreement

If the adjoining owners reach agreement after a notice has been issued, the terms should be put in writing. The agreement should cover all details, including fence height, material, colour, cost and position; as well as any arrangements for the removal of any existing fence and any extra work that might need to be done and the cost.

When agreement is not reached

If agreement is not reached, either land owner can apply to the nearest court for an order to resolve the dispute. A court order is final.

The court’s orders can include determinations about:

  • the need for and the kind of fence to be built;
  • what portion of the fence is to be built by each owner;
  • the time frame for building the fence;
  • the boundary or line on which the fence is to be built;
  • any compensation to be paid by one land owner to the other for loss of land.

The court must take into account the kind of fence usually built in the area, the purpose for which the lands separated by the fence are used, and any fence type prescribed by local laws.

If a land owner fails to comply with an order made by a local court, the other land owner can do the work agreed upon and recover the agreed amount or half the cost of the work from the defaulting land owner.

The court can also make an order when the owner of adjoining land cannot be found. The court must be satisfied reasonable efforts have been made to find the owner before it will make an order authorising a land owner to build a dividing fence. If a land owner builds a fence according to the order, then finds the owner of the adjoining land, they can give that owner a copy of the order and that owner must pay to them within one month half the value of the fence at that date.

When a fence has already been built

If an owner has built a fence and has not received half the cost of the fence from a previous or current owner of adjoining land, the owner who built the fence can issue a notice to the current owner claiming that amount.

The adjoining owner then has a month to either pay the amount or dispute the claim. The adjoining owner can:

  • dispute the need for a fence;
  • claim the fence is not desirable,
  • dispute the need for the type of fence built;
  • dispute the amount of the claim.

The owner who built the fence can then apply to a court to determine the dispute.

For advice or representation in any legal matter, please contact Armstrong Legal.

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