Any agreement, contract or covenant relating to dividing fences between owners of adjoining land overrides the provisions of the Act and in most cases a dispute between neighbours will be dealt with by the Magistrates Court. Therefore, when issues with a dividing fence occur it is best to try to approach the owner of the adjoining land, discuss issues, and try to resolve matters together.
The Act does not deal with the following common matters but where to look for further information is provided.
Seven matters not covered by the Act
Building work being completed under a building permit
Building work that may involve the removal of a fence including boundary and retaining walls is covered under the Building Act 2011.
Fence height restrictions and encroachments are set by local councils in most instances.
More information:
A directory of local government contact details is available on the Department of Local Government, Sport and Cultural Industries.
(08) 6552 7300
www.mycouncil.wa.gov.au
Commonwealth, State or local government land
Where the adjoining land is owned by the Commonwealth, State or local government and is used for public purposes, the Crown is not required to contribute to the costs of putting up or maintaining the fence.
More information:
Department of Communities
The Housing Authority can provide tenants of Public Housing with advice on dividing fence issues.
1300 137 677
Tree debris, encroaching roots and overhanging tree branches
These include:
- branches or roots growing past the fence line; and
- trees pushing on or damaging the fence (without falling on it).
More information
General tree issues are civil disputes between neighbours and are resolved in the Magistrates Court, if mutual agreement cannot be reached.
(08) 9425 2222
www.magistratescourt.wa.gov.au
Secondary fences
Situations where a property owner wishes to construct a fence on their own land adjacent to an existing dividing fence, rather than replace the one that is already there is not covered.
Asbestos cement fencing
Manufacture and use of asbestos is now banned in Australia. Therefore, the repair of damaged sheets would require the replacement of the fence with newer non-asbestos fencing.
More information on safe handling of asbestos products and asbestos in the home:
- the relevant local government environmental health officer www.mycouncil.wa.gov.au; or
- the Department of Health, Environmental Health Directorate (08) 9222 2000 or (08) 9328 0553 (after hours)
Swimming pool barriers
Temporary fencing to enclose a swimming pool while a dividing fence is being constructed or repaired. Or the type of fence to be used where a dividing fence forms part of a pool enclosure.
More information:
The Building Regulations 2012 allow a dividing fence to form part of the enclosure of swimming or spa pool, provided that the fence satisfies the requirements of the Australian Standards.
View pool safety barrier rules: Swimming pool and spa safety barrier requirements
Contact your local government: www.mycouncil.wa.gov.au
Materials or type of fence to be used in construction or repair
Replacement of a damaged fence where the materials used will differ from what was there originally, including when the original material is no longer available.
More information:
Either owner may make an application to the Magistrates Court for determination where an agreement cannot be reached. The court will consider the type of fence typically constructed in the area, how the lands are used and any local laws for your area.
www.magistratescourt.wa.gov.au
(08) 9425 2222
What is a dividing fence under the Act?
A dividing fence is a ‘sufficient fence’ that separates the land of different owners, whether on the common boundary of adjoining lands or in a line other than the common boundary.
A sufficient fence is described as:
- a fence prescribed by a local law of the relevant local government; or
- a fence agreed upon by adjoining owners provided that it complies with the relevant local law.
Where no local law exists or no agreement is made, a sufficient fence is:
- a substantial fence that is ordinarily capable of resisting the trespass of cattle and sheep; or
- a fence determined by a court.
If you erect a dividing fence of a higher standard than a sufficient fence before obtaining the agreement of the adjoining owner, you may only claim half the cost of erecting and maintaining a sufficient fence as defined above.
If you are unsure of what a sufficient fence is, visit your local government’s website or contact your local government.
Legal Aid
Legal Aid has produced a fact sheet and video with information on tree nuisances and other types of boundary issues and what your rights and obligations are if you have a problem with a neighbour. Their website also provides information on common neighbourhood problems, negotiations, mediation and dispute resolution. Legal Aid website www.legalaid.wa.gov.au.
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