Process A: Constructing a new fence on developed land
Step one: Negotiate with your neighbour
An agreement between neighbours has priority over the requirements of the Act, therefore when issues with a dividing fence occur it is best to approach the owner of the adjoining land and try to resolve matters together.
In order to reach agreement with a neighbour, keep in mind that they have a right to protect their property and animals, especially during construction. You should also be considerate of concerns they may have about their capacity to pay and discuss the option of a longer payment timeframe or payment plan.
While the Act does not specify the requirements for obtaining quotes, having quotes and a clear understanding of the costs can assist with obtaining a mutual agreement.
Informal discussions are a good starting point, but agreements in writing and signed by both parties clears any ambiguity and clarifies any point of difference. It can also be used later to show what has been agreed if the matter comes before the courts.
Step two: Issue written notice
If for any reason an agreement is unable to be reached, the Act provides a mechanism for the construction of a new dividing fence, most often with a written notice. The notice must be in writing, signed and delivered in person or by registered post to the person’s usual or last known place of residence.
Under the Act, to erect a new dividing fence, written notice must be provided to the neighbouring owner which sets out:
- the boundary to be fenced; and
- a proposal for fencing which includes:
- the type of work to be done (new fence, repair or realignment);
- the kind of fence (e.g. material and colour) you wish to put up;
- who will organise to get the work done;
- where it will be located (especially if not on the official boundary line); and
- how the costs will be paid and shared.
You may also wish to check your ‘Certificate of Title’ with Landgate to check for any covenants that relate to dividing fences on your property.
Landgate website: www.landgate.wa.gov.au
Step three: Defining the boundary line
When neighbours disagree on the accurate location of a boundary line both owners can agree to have it established by a land surveyor and share the costs.
However, if one owner believes the surveyor is not necessary, the Act provides a mechanism for resolving the process described below involving Owner A and the neighbour, Owner B.
Owner A gives notice to the adjoining owner B stating that he/she is going to engage a surveyor to define the boundary line.
If after receiving the notice, Owner B thinks a surveyor is unnecessary, Owner B has seven days to place pegs where they think the boundary is, or if Owner B wants to engage a surveyor, they have seven days to engage the surveyor and recover half the cost from Owner A. In both scenarios, Owner B must give Owner A notice of the action they have taken as soon as practicable.
Where Owner B has not used a surveyor, but has defined the boundary by pegs and Owner A is still not satisfied, Owner A must wait one month after giving the notice to engage a surveyor, and Owner A may then have the boundary line defined by the surveyor.
If the surveyor finds the boundary is where Owner B initially placed the pegs, then Owner A has to pay the full cost of the surveyor. Otherwise the Act provides that both Owner A and Owner B share the cost in all other cases.
Land Surveyors Licensing Board website: www.lslb.wa.gov.au.
Step four: Applying to the court
Where the owners do not agree about the need for the fence or the kind of fence to be constructed, either owner may apply to the Magistrates Court within 21 days of the notice being received.
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 relevant court closest to the properties can determine:
- the need for and the kind of fence to be constructed;
- the portion of fence to be constructed by each owner;
- the time within which the fence is to be constructed;
- the boundary or line upon which the dividing fence is to be constructed; and
- if an annual payment of should be paid by any owner to another in consideration of loss of occupation of any land.
Step five: Proceedings where an agreement or Court order have not been carried out
Where the owners agree, or where the court orders the erection of a fence, the owners must fulfil their obligations within the specified time or within three months if not time specified. If an owner does not fulfil their obligations within this time, the other owner may complete the work and recover half of the cost by making an application for an order in the Magistrates Court.
Magistrates Court website: www.magistratescourt.wa.gov.au
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