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City Of Bayswater

Fencing

This section provides information on requirements for dividing and front fences.

Local governments have local laws relating to fencing within their cities. The local laws set out the requirements for a landowner when installing a front fence or a fence within the front-set back area of a lot. The local law also sets out the definition for a “sufficient fence”, a term used in the Dividing Fences Act.

The City of Bayswater has no powers under the Dividing Fences Act, therefore cannot make any judgment or orders against land owners in matters relating to a dividing fence.

All dividing fence matters are of a civil nature and are required to be resolved by the affected landowners.

Where retaining is to form part of the boundary separation, each owner is responsible for retaining the portion of land that is associated with their land. The height of a fence is measured from the higher ground level.

Dividing fences

If you require specific information about agreeing to, and sharing the costs of a dividing fence with your neighbour, then please read the current Dividing fences brochure.

The Dividing Fences Act 1961 deals with the process of sharing the costs of building and maintaining your dividing fence with your neighbour. Other matters regarding boundaries are dealt with by other legislation, government agencies and/or the courts.

Alternatively, you can access the complete Dividing Fences Act 1961 here or by going to the State Law Publisher website at www.slp.wa.gov.au.
If you require further information, please contact the Building Commission on 1300 489 099.

Landgate – Provides information on defining and surveying boundaries.

Local government – Sets the minimum fencing standards required under local laws and is responsible for controlling construction work on boundaries such as retaining walls, parapet walls, party walls and similar under The Building Act 2011.

Magistrates Court – May rule on disputes between adjoining owners on issues such as nuisance for trees, overhead branches and falling leaves under the provisions of common law. However, you will need to seek independent legal advice for each case.

Please note:  The Building Commission provides general advice on dividing fences legislation only. The City or Building Commissioner does not have the authority to make rulings or provide opinions in relation to individual circumstances. 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.

Further information on the following topics is provided below:

• What is the law relating to dividing fences in WA?
• What is a dividing fence?
• Does the Dividing Fences Act 1961 apply to everyone?
• Erecting a new fence where both blocks are developed.
• Erecting a new fence where one or both blocks are vacant.
• Repairing a dividing fence
• If I have to negotiate with my neighbour, how do we reach an agreement?
• Useful contacts.

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, the City has local laws stipulating the minimum requirements for sufficient fences. If you have any queries, please contact the building department on 9272 0622.

The Dividing Fences Act 1961 covers both the erection and repair of dividing fences, determining the boundary 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.
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 in 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 it does not fall below the standard prescribed by the relevant local government law.
3. A substantial fence that is ordinarily capable of resisting the trespass of cattle and sheep.
4. A fence determined by a magistrate in a magistrate’s court to be a sufficient fence.

Note: A fence that accords with (3) or (4) 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 landowner is owned by the Commonwealth, state or 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 dividing fences.

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 see 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.

Erecting 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. It 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 Local Laws). 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 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 wants 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 for repairing 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 that should be followed when having 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 you neighbour a notice describing the kind of 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.
• Pay half the cost of having the fence repaired by a third party.
• 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 the 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.

If I have to negotiate with my neighbour, how do we reach an agreement?

It is in each neighbour’s interest 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.
• Starting 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)
Tel: (08) 9221 5711
Web: www.cabwa.com.au

Magistrates Court
Tel: (08) 9425 2247
Web: www.magistratescourt.wa.gov.au  

Landgate
(Adverse Possession Information)
Tel: (08) 9273 7373
Web: www.landgate.wa.gov.au  
Email: onlinesupport@landgate.wa.gov.au  

Health Department
(Environmental Health Branch – Asbestos Issues)
Tel: (08) 9222 4222
Web: www.public.health.wa.gov.au 

Local Government
For information on issues such as retaining walls contact your local council.

State Law Publisher
(To view and/or purchase copies of the legislation)
Tel: (08) 9321 7688
Web: www.slp.wa.gov.au  

Important Disclaimer. The information on this webpage is not intended to constitute legal advice but is offered in good faith as a community service. Individuals visiting this page are responsible for making their own enquiries as to the accuracy of statements contained on this webpage. The State of Western Australia, City of Bayswater, Department of Commerce and its agents and servants disclaim liability for any Act or omission resulting from reliance on material on this page.



 

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