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Dividing Fences in a Residential Area

What is a dividing fence?

A 'dividing fence' is usually a fence that separates two privately owned properties. It does not include a fence running along the boundary of a road and it does not include a retaining wall.

A 'boundary fence' is a fence installed between a privately owned property, a public open space or other reserve. It also does not include a fence running along the boundary of a road and it does not include a retaining wall.

Refer to the City of Bayswater's Fence Information Sheet for what approvals are required for dividing and front fences - https://www.bayswater.wa.gov.au/online-services/forms-and-publications/information-sheets/2019/fence-information-sheet

I want to build or replace my existing dividing fence. What are my obligations?

Owners looking to construct a dividing fence are strongly advised to find out their obligations and responsibilities as defined in the Dividing Fences Act 1961 (Act) prior to the construction of a fence.

A booklet titled Dividing Fences: A Guide is available from the Building Commission website at: https://www.commerce.wa.gov.au/sites/default/files/atoms/files/dividing_fences_act_6th_edition_july_2017_updated_29sep18.pdf

This also contains the contact details should you require further assistance.

Will I need a development (planning) application?

Development approval is only required for a boundary/ dividing fence if the proposed fencing does not comply with the requirements of a local planning policy or R-Codes.

Please refer to: https://www.bayswater.wa.gov.au/online-services/forms-and-publications/information-sheets/2019/fence-information-sheet

Do I need a building permit for a dividing fence?

The Building Permit Regulations 2012, Schedule 4, Clause 2 – Item 4 states that: Construction, erection, assembly or placement of a fence, screen or similar structure, other than a fence forming part of a barrier to a private swimming pool, if:

(a) the fence, screen or similar structure is constructed in accordance with a local law made under the Local Government Act 1995 that applies to the construction of the fence, screen or similar structure in the district in which the fence, screen or similar structure is, or is to be, located; or

(b) the fence, screen or similar structure is, or is to be, located in a district in which there is no local law of a type referred to in paragraph (a) and the fence, screen or similar structure — (i) if constructed of masonry, is no more than 0.75m in height; and (ii) if constructed of a material other than masonry, is no more than 1.8m in height; and (iii) is not located in wind region C or D as defined in AS1170.2.

Fencing that does not meet any of (a) or (b) will require an application for building permit. For example, any fencing over 1.8 metres in height will require a building permit.

A brick fence 0.75 metres or higher will also require a building permit.

Please refer to: https://www.bayswater.wa.gov.au/online-services/forms-and-publications/information-sheets/2019/fence-information-sheet

What is a sufficient fence?

The Dividing Fences Act 1961 states that land that adjoins other land is to be divided by a fence of a type prescribed by the local government (a sufficient fence).

The City of Bayswater Fencing and Floodlighting Local Law 2016 defines a sufficient fence in a Residential Area as:

(a) Constructed from a material of brick, stone, concrete, limestone, glass, modular, wrought iron, tubular steel, timber, corrugated fibre reinforced cement sheeting, colour bonded metal or a material approved by an authorised person; and

(b) Corrugated fibre reinforced cement sheeting and colour bonded metal is not permitted adjacent to a primary street boundary of a residential dwelling; and

( c) A fence constructed and maintained in accordance with the specifications and requirements set out in the manufacturers specification of structural engineers details for that material; and

( d) The height of the fence to be 1800 millimetres to a maximum of 2100 millimetres with the affected adjoining neighbours consent, except with respect to the front setback area for which there is no minimum height but which is subject to the Residential Design Codes; or a fence approved as part of a development approval.

If my fence forms part of my swimming pool barrier, what are the requirements?

Your fence will need to comply with Australian Standard AS1926.1 swimming pool safety.

The most common areas of non-compliance in isolation barriers installed after May 2016, are the dividing fence being lower than 1.8m from the ground level of the pool or spa area, and the dividing fence failing to provide a non-climbable area of a 900mm arc when measured from the top of the fence on the pool side (i.e. in a 3pm to 6pm arc on a clock face). 

This will result in the isolation barrier being given a non-compliance certificate.

Please refer to https://www.bayswater.wa.gov.au/home-and-property/renovating-your-home-or-property/swimming-pools-and-spas

Do I have to contribute to the cost of a fence when my land is still vacant?

No, not unless you have agreed to contribute before the fence is erected or unless the adjoining owner obtains a court order, before the fence is erected, requiring you to contribute.

My lot was vacant and my neighbour has constructed a brick fence, do I have to pay for half of it?

No, not unless the sufficient fence (minimum standard) for a fence in that location is a brick fence.

The minimum standard could be as a result of the City of Bayswater Fencing and Floodlighting Local Law 2016 or town planning scheme, or through a condition of sale imposed by the developer as a covenant. You would as a general rule have to contribute half the cost of a sufficient fence, this being the minimum standard required by the City of Bayswater.

I am about to build and do not like the fence my neighbour just erected, and I do not want to pay him anything. Can I do this?

If the fence that is erected is a sufficient fence under the City of Bayswater Fencing and Floodlighting Local Law 2016 and in keeping with other fences in the immediate area, the adjoining landowner who erected it has a legal right under the Dividing Fences Act 1961 to claim half payment of a sufficient fence when you complete your building.

My neighbour built his house first and erected a fence that I did not like. I wanted a green Colorbond and he erected a wooden one. I have since built my house and erected a fence on my land. My neighbour has now given me a bill for the fence he erected. Do I have to pay?

Yes, the original fence is the dividing fence and you would be required to pay half the cost of it and also bear responsibility for a half share of the ongoing maintenance costs of the dividing fence. The cost for the erection and ongoing maintenance of the second fence would be yours entirely.

My neighbour has claimed from me half the cost of the dividing fence he erected. I am the second owner of the property and feel that he should have got his money from the previous owner. Am I liable to pay the money claimed?

Yes, an owner or owners of adjoining land are liable to pay even if they were not the owners of the land when the fence was constructed, provided that no previous adjoining owners had paid a claim to the owner who erected the fence.

My neighbour and I are at about the same stage of building our houses. He wants a metal fence and I want a fibrous cement one that goes into the ground. I have a dog to contain and he could easily dig under a metal one. What can do about this?

The best way to erect a fence is by agreement with the adjoining owner. You should first try to resolve any differences by discussing the matter with the owner. You may wish to consult a mediator, who can assist you in resolving differences, before going to court.

If the owners cannot agree, the matter may be determined in the Magistrates Court.

My neighbour’s fence is 10 years old. Do I have to pay for the half value of the fence when it was constructed or what it is worth now?

The requirement is for payment of half the value of the fence as at the date of claim. The person making the claim has to estimate the value.

If your neighbour erected a fence of a higher standard than a sufficient fence, as defined by your local government, unless you agreed to pay the higher cost, you would only have to pay half the cost of a sufficient fence. If for example, a metal fence was erected and the sufficient fence, as defined by your local government, is a fibrous cement one, the obligation is for payment of half the cost of the lesser standard fence, being the fibrous cement one.

The additional cost for the higher standard fence would be borne by the adjoining owner that requires it.

I want to erect a dividing fence that is higher than a sufficient fence?

Any dividing fence more than 1.8 metres in height requires agreement with the adjoining neighbour (in the form of written neighbours consent) and a building permit. If you wish to have a dividing fence replaced completely by a different type of fence, you should give the adjoining owner a notice describing the kind and extent of fence to be made.

The fence has been damaged by my neighbours, why should I have to pay for half of it?

As a general rule, each of the adjoining owners must pay half the cost of repairs unless the adjoining owners agree to an alternative arrangement or the court rules differently. The Dividing Fences Act 1961, provides for specific situations when one owner who is ‘at fault’ pays the whole cost.

These specific situations are where the fence is damaged by fire or by the falling of a tree, or part of it. There must be an element of neglect by the owner at fault in these specific situations

I have had my land surveyed and it shows that the dividing fence is out of alignment and my adjoining owner has some of my land. Who pays for the cost of the relocation of the fence onto the correct boundary and what steps should be followed to shift the fence?

The Dividing Fences Act 1961 in defining what a repair is, includes the realignment or re-erection of a fence. This means that the cost is liable to be shared equally by the adjoining land owners. The process for seeking a realignment of a fence is covered by Section 15 of the Act.

Our dividing fence is an old picket fence that needs to be replaced. I want to put up a new brick fence. If I do so, what procedures do I need to follow?

The Dividing Fences Act 1961 only applies to the erection of the first fence and then its repair. Replacing an existing fence with an entirely different type of fence is regarded as the erection of a new fence.

The procedure for erecting a fence must be followed where a fence is replaced with an entirely different one (refer to step 1 – giving notice, Dividing Fences: A Guide).

If an old fence is replaced with a new fence that is the same as the old fence, it is classified as a repair, and the procedures relating to repairing fences must be followed.

I believe that the dividing fence is fine and can be simply repaired in a few places and maybe realigned and straightened up a bit. My neighbour does not agree and told me he wants a new one. Do I have to pay half for a new fence just because he wants it?

No, you would not have to pay for a new fence unless you agree to this or your neighbour takes you to court and is successful in obtaining an order for you to contribute to a new fence. In such a dispute, it would be necessary for the owner taking the legal action to prove that the fence is in need of replacement and cannot or should not be repaired. That owner would then generally seek to support such a case through the presentation to the court with photographs and testimony from expert witnesses.

My neighbour’s trees are pushing against the fence and have damaged it. I have asked that he cut the trees down or at least cut them back and repair the fence at his cost. He advised that as far as he is concerned the trees stay and that he will only pay half the cost of the repair. What are my rights?

You would be required under the Dividing Fences Act 1961 to contribute to half the cost of the repairs to the fence. If you refuse to pay your neighbour may seek a court order.

Do I have to contribute to the repair of the dividing fence if my land is vacant?

Yes, subject to Part III Section 15 of the Dividing Fences Act 1961.

The neighbouring property is owned by the Department of Housing and Works (DHW) and the fence is in need of repair, what should I do?

State government departments are not bound by the Dividing Fences Act 1961, however you should contact your nearest DHW office to discuss the repair or replacement options.

What is involved if I wish to remove my asbestos fence?

Left undisturbed, asbestos cement building products pose little risk to health, so there is no need to remove or coat asbestos cement materials that are in good condition.

If you wish to have an asbestos dividing fence replaced completely by a different type of fence, you should give the adjoining owner a notice describing the kind and extend of fence to be made. In this case, if the asbestos fence is undisturbed and not in need of replacement you will be liable for the full cost of the new fence.

All asbestos cement products can be removed safely without causing a risk to the public or workers provided safe work procedures are followed. 

Please refer to the following website: https://www.bayswater.wa.gov.au/community/public-health/asbestos

How do I find the owner of the property next door?

If you do not know the name of the owner of the property next door to you, you can:

  • Check with the tenants or property manager if the property is rented or leased
  • Do a land title search through the Landgate website at www.landgate.wa.gov.au
  • Contact the City of Bayswater Customer Services for further assistance at (08) 9272 0622.
Mediation

The City of Bayswater, is unable to direct your neighbour to construct a sufficient fence and has no statutory (legal) ability within the Dividing Fences Act 1961 to direct or provide adjudication of costs or repairs.

What can I do if I’ve tried mediation and can’t reach agreement?

The Magistrates Court deals with applications by the owners of adjoining lands for the construction and repair of a dividing fence. A ‘Form 53’, available from the Magistrates Court, is used to make an application to the court in these circumstances in default of an agreement, or where an owner of adjoining land cannot be found.

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