Building Codes and Fences

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Role of Building Management and Works What is the law relating to dividing fences in WA? What is a Dividing Fence Does the Dividing Fences Act 1961 apply to everyone? The erection of a new fence where both blocks are developed The erection of a new fence where one or both blocks are vacant Repairing a Dividing Fence If I have to negotiate with my neighbour, how do I reach an agreement Contacts

Role of Building Management and Works

Building Management and Works administers and provides general information on the Dividing Fences Act 1961 to the community and local governments.

The Department produces a comprehensive information booklet Dividing Fences – a Guide which is available to download (PDF 1.3 MB), or telephone the Department directly on (08) 9488 2722 to receive a hard copy in the post. The booklet is intended to help you understand your rights and obligations under the Dividing Fences Act 1961.

The booklet outlines the processes in the Act, provides important information that you should be aware of and answers over 40 frequently asked questions.

The Department does not have any role or powers to advise on individual issues or resolve disputes. Where neighbours cannot come to an agreement regarding their dividing fence, they should seek independent professional advice such as mediation services or a court ruling on the matter.

What is the law relating to dividing fences in WA?

In Western Australia, the Dividing Fences Act 1961 combines with local government by-laws to regulate dividing fences in WA. While not all local governments have local fencing laws, you are urged to contact the building section of your local government to determine whether they have fencing requirements and what these are.

The Dividing Fences Act 1961 covers both the erection and repair of dividing fences, having the boundary line determined and provides a mechanism for courts to deal with disputes over dividing fences. It does not apply to retaining walls, fence height restrictions or encroachments.

You can download a copy of the Dividing Fences Act here.

What is a dividing fence?

A dividing fence is a fence that separates the land of different owners whether the fence is on the common boundary of adjoining lands or on a line other than the common boundary. A dividing fence does not include a retaining wall.

 A “sufficient fence” is:

1. a fence prescribed by a local government local law;
2. a fence of any standard agreed upon by adjoining owners provided that it does not fall below the standard  prescribed by the relevant local government local law;
3. a substantial fence that is ordinarily capable of resisting the trespass of cattle and sheep; or
4. a fence determined by a magistrate in a magistrates' court to be a sufficient fence.

Note: A fence which accords with (c) or (d) is only a sufficient fence where no local law or agreement is made.

If you decide to erect a dividing fence of a higher standard than a sufficient fence without obtaining the agreement of the adjoining owner, you may only claim half the cost of erecting and maintaining a sufficient fence, as defined above.

Does the Dividing Fences Act 1961 apply to everyone?

No. The Act does not bind the Crown, so where the adjoining land is owned by the Commonwealth, state or a local government and is used for public purposes (for example, roads, parks or government offices) the local government or Commonwealth or state government department is not required to contribute to the costs of erecting or maintaining a dividing fence.

However, if your property adjoins a Department of Housing property, the Department may be willing to contribute to the cost of erecting or maintaining a dividing fence. Please contact your nearest regional office.

The Act does not interfere with agreements, contracts or covenants relating to dividing fences between owners of adjoining land. It may be worth checking your Certificate of Title or with Landgate to enquire whether there are any covenants relating to dividing fences between you and adjoining landowners. Any agreement, contract or covenant relating to dividing fences overrides the Act.

If you or your neighbour want to erect a dividing fence, you should first negotiate to determine whether you are able to reach an agreement for the erection of the dividing fence. If an agreement is reached, you should record it in writing. You may also check your Certificate of Title or with Landgate to determine whether it contains covenants that relate to dividing fences.

If you and your neighbour are unable to agree, either of you may serve on the other a Notice to Fence which should set out:

• the boundary to be fenced

• a proposal for fencing; and

• the kind of fence proposed to be constructed.

A sample of this notice is provided - Giving Notice to Fence - Western Australia (PDF 22.49 kB).

Where the owners are unable to agree on the need for the fence, the boundary or other line to be fenced, or the kind of fence to be constructed, either owner may, after 21 days, make an application to the nearest magistrates’ Ccourt for an order determining:

• the need for and kind of fence to be constructed;

• the portion to be constructed by each owner;

• the time within which fence is to be constructed;

• the line on which to construct the fence; and

• any compensation one owner may receive for loss of occupation of land.

In making its order, the court will consider the type of fence typically constructed in the area, how the lands are used and any local laws prescribing the type of fence for your area.  The court’s order is final.

Where the owners agree or a court orders the erection of a fence, the owners must fulfil their obligations within the specified time (or if no time is specified, within 3 months). If an owner does not fulfil their obligations within this time, the other owner may complete the work and recover half the cost from the owner in default by issuing a summons in the magistrates’ court.

The erection of a new fence where one or both blocks are vacant

Where one or both blocks of land are vacant, the situation is slightly different. You should still attempt to negotiate with the owner of the adjoining block out of courtesy. If you are able to agree with the other owner, you should record the agreement in writing, and erect the fence according to the terms of the agreement.

If you are unable to agree with your neighbour, either of you may erect a dividing fence provided it is a sufficient fence (according to your local government regulations). You would then be able to require your neighbour to contribute to the cost of the dividing fence once they had completed a building or substantial structure on their land (under the Act, a person is not liable to contribute to the cost of erecting a dividing fence until they have completed a building or substantial structure on their land).

If your neighbour objects to paying you or disputes the line on which the fence was built, you may apply to the nearest magistrates’ court for an order requiring the other owner to contribute. For information on the location of the magistrates’ court or court procedures and costs, contact the Department of the Attorney General on 13 67 57 or the Magistrates’ Court Civil Department on 9425 2247.

Repairing a Dividing Fence

Under the Act, the repair of fences includes the realignment and re-erection of a dividing fence. It does not however, include the replacement of an existing fence with a fence made of altogether different materials. If you or your neighbour want to construct a fence made of different materials, the procedure for erecting a new fence must be followed.

When a dividing fence is in need of repair, the owners of land divided by the fence are generally liable to pay half the cost of those repairs each, even where one or both of those pieces of land is vacant. There are general exceptions to this rule, including situations where:

• the dividing fence was built partly by one owner and partly by the other. In this case each owner is responsible to repair the part of the fence they built;

• the dividing fence is damaged by a storm, fire, flood, lightning or accident. In this case either owner may repair the fence without notice and recover half the cost of the repair from the other owner;

• the dividing fence is damaged by fire or a falling tree or branch. In this case the owner whose neglect caused the damage must repair the fence as soon as possible.

There are a number of steps followed to have a dividing fence repaired. They are:

• Attempt to negotiate with your neighbour

• If you are able to agree with your neighbour, you should record the agreement in writing. The fence should then be repaired in accordance with the agreement. If you are unable to agree, you may give your neighbour a notice describing the kind and extent of repairs and indicating you are willing to:

  • repair the fence and pay half the cost if they will contribute half;

  • permit the other owner to repair the fence and you will pay half; or

  • pay half the cost of having the fence repaired by a third party.

A sample of this notice is provided - Giving Notice to Fence - Western Australia (PDF 22.49 kB).

• Your neighbour will have 14 days to object in writing to the notice. If your neighbour objects, you may apply to the nearest magistrates’ court to obtain an order to repair the fence. Only a person who issues the notice to repair the fence may apply to the court to determine the issue. To find your nearest magistrates’ court contact the Department of the Attorney General on 13 67 57.

• The magistrates’ court may make a number of orders, including orders to repair the fence, orders prescribing the type and extent of repair, who is to repair the fence and the time within which the repairs are to be completed.

• The fence should then be repaired in accordance with the order of the magistrates’ court.

It is in each neighbour’s interests to attempt to resolve dividing fences disputes between themselves in a courteous and friendly manner. The Act encourages agreement between owners of adjoining land, as any agreement overrides the Act. There are many steps that can be taken to reach agreement with a neighbour to provide for dividing fences. These include:

• Approaching your negotiation with an appropriate communication style.

• Identifying key needs you would like to have met. Recognise your neighbour may have competing needs, try to acknowledge these.

• Commencing the negotiation with a positive statement regarding your mutual needs.

• Gaining agreement on common ground during the negotiation, this will help identify the points of difference between you and your neighbour.

• Being aware that you may have an ongoing relationship with your neighbour – be reasonable. Pushing too hard or becoming adversarial will alienate your neighbour and possibly harm your future relationship.

• Recognising that you have not only dividing fences rights, but also responsibilities.

• Remembering that where both parties are satisfied, each will work to make the agreement and relationship succeed.

• If you and your neighbour can agree, record the agreement in writing.

Taking a claim to court should be a last resort. The Act encourages neighbours to try to agree before undertaking expensive and time consuming legal action.

Useful Contacts

Citizens Advice Bureau
(Access to community lawyers/mediators- small fee)
PH: 9221 5711
Web: www.cabwa.com.au/