As they say, “Good fences make good neighbours”, so how do you organise fencing with your neighbour?
There is no requirement to have a fence, however where applicable you are responsible to contain your stock.
Under the Boundary Fences Act, owners of adjoining lands not divided by a “sufficient” or “rabbit proof” fence, are liable to contribute to the erection of a fence between them.
What sort of fence? A “sufficient fence” is defined in the Boundary Fences Act as “a fence which is ordinarily capable of resisting the trespass of cattle and sheep, except where such fence is in a city or town, or adjacent to a dwelling-house, when the expression means a fence of the description and quality agreed or awarded”.
What is appropriate for one area may be inappropriate for another.
“Fence” is defined as “a fence separating the lands of different owners, or any fence used or accepted by adjoining occupiers as a boundary line between their respective lands”.
A boundary fence must be along the boundary line. Where the boundary is uncertain because it is a river, creek, lake, pond, or is rocky land, the neighbours can agree on the line the fence should take or resolve any dispute about the location of the boundary fence using the Boundary Fences Act arbitration procedure.
What is appropriate and typical varies with the circumstances.
In a residential area a wooden paling fence 1.5 metre high is typical .
In a rural area , a typical fence is a five or seven wire, post and wire fence.
If you want a fence then you should discuss with the neighbour:
Some neighbours agree for one to construct the fence and the other to pay for the materials. Other neighbours divide the area to be fenced between them.
Even if you do not wish your neighbour to contribute to the cost of the fence, you are best to get agreement with your neighbour on what will be built .
The owner of land is shown on the land title which can be obtained through the Land Titles Office at 134 Macquarie Street, Hobart or from Service Tasmania.
Take care to record the arrangement. A short neat note signed by both parties should be enough, but make it clear and complete.
A contractor may be willing to send two separate bills thus organising collection of the two contributions.
If one party breaks the agreement, it can be enforced in the courts.
Do not take any action on a fencing problem, before talking the matter over with your neighbour.
You may be living alongside your neighbour for years to come. It is in both your interests to be on reasonable terms.
If necessary, try involving a third party as mediator. You may need to obtain legal advice about your rights and possible remedies. Talk to Tierney Law.
You may erect a fence at your own cost without the agreement of your neighbour.
If you fence a boundary without the agreement of your neighbour and without following the dispute resolution system of the Boundary Fences Act:
If you are worried the neighbour will seek a change to your fence, consider setting your fence back from the boundary so it is well within your land. If the fence is not a boundary fence it will not be covered by the special boundary fence laws. Take care however to then avoid confusion about what is the boundary line of your block.
If you don’t reach agreement then under the Boundary Fences Act, you can give the neighbour a formal notice specifying the fencing work proposed. A sample copy is included at the end of this booklet.
The notice says that if the recipient does not object within 21 days, the specified fencing work will be done.
When you serve a copy make sure you can prove service. You can ask your neighbour to sign a receipt, use receipted delivery mail or have an independent witness to the service.
If :
the person giving the notice to fence, can proceed to erect or upgrade a fence in accordance with the notice and can recover from the neighbour a portion of the actual cost of construction or conversion of the fence together with interest.
If after serving the notice your neighbour objects, review the counter proposal and if appropriate discuss it with your neighbour.
If you and your neighbour still cannot agree, either of you may ask an independent arbitrator to make an order about the fencing work required.
The arbitrator as umpire will consider the views of the parties and make an award to resolve the disputed matters.
The arbitrator has power to resolve:
If a fence is to be built, you and your neighbour usually, though not always, will have to share the cost. Typically you would expect the cost of the fence to be divided equally. In apportioning the cost, the arbitrator must take into consideration the benefit likely to accrue to each owner from the fence.
The costs of the arbitration are borne by the parties in such proportions as the arbitrator determines. The arbitrator may order a person whose position has been rejected to pay a larger share of the arbitration costs.
There are a set of standard arbitration rules set down under the Commercial Arbitration Act. These standard rules govern the conduct of arbitration under the Boundary Fences Act.
The arbitrator needs to be a capable person chosen by the parties. The arbitrator need not be a judge or magistrate.
Where a fence is out of repair or becomes insufficient, the owners of land on either side are liable to share the cost of repairing the fence.
An owner of land may serve a notice upon the adjoining owner, requiring assistance “in the repairing or making sufficient a fence separating such lands, or part thereof”.
If the adjoining owner refuses or neglects to do this for 21 days after the service of the notice, the person who served the notice may do the work required and demand of the other owner half the cost of such work.
The Boundary Fences Act arbitration provisions also apply to disputes concerning the repair of fences. The liability of an adjoining owner to pay part of the costs of repairing a fence may therefore be subject to the determination of an arbitrator.
As with any other type of property, a person who carelessly or deliberately damages a fence may be responsible for its repair. This is so even if it is one of the neighbours who damages the fence.
The Boundary Fences Act does not require a constructed fence. A hedge can be used as a fence if it meets the other requirements of the Act.
Under the Boundary Fences Act neighbours can be required to cut back any live boundary fence more than a metre from the boundary line and are required to keep the boundary line clear of gorse, undergrowth or noxious weed within 5 metres of the boundary fence.
If the obligations to keep the fence cut back or clear are not met, the other neighbour can enter the property to do the necessary clearing and recover the costs from the offending neighbour.
Under the Boundary Fences Act there is a right to clear bush and scrub and remove fallen timber for a width of not less than 2 metres either side of the fence; to fall trees standing in the immediate line of the fence and fall and remove trees or branches either side of the fence which might injure the fence. These costs are dealt with as part of the cost of fencing.
You have the right to lope branches that come over onto your side of the boundary from trees planted on your neighbours land.
The loped branches once cut from the tree remain the property of your neighbour and need to be returned to your neighbour.
You have the right to “self help” on that basis. Self help can be quick and effective but sometimes escalates into further conflict.
Self help action beyond entitlement may become trespass with liability for wrongful excessive action.
The Neighbourhood Disputes about Plants Act has processes for neighbours to resolve plant issues. Farms , commercial plantings , live boundary fences, and some council, government and other land are excluded . Neighbours must first try to resolve a plant dispute informally and direct. If this fails, a notice can call for specific action in relation to the plant. If disputes can’t be thus resolved, the Resource Management and Planning Appeal Tribunal can determine disputes.
Tierney Law has a guide like this on the Neighbourhood Disputes about Plants Act. 2017
The Boundary Fences Act does not apply to unoccupied Crown land, a public reserve or land owned by the Forestry Commission,
Under the Boundary Fences Act bodies such as the Council are not bound to share in the cost of fences on roads or public footways.
Subdividers usually protect themselves against boundary fence claims as part of the subdivision conditions. If the neighbouring land in a subdivision has not yet been sold separately, such a condition may permit enforcing the Boundary Fences Act obligations against the subdivider. A search of the neighbour’s title will show if such a condition applies.
Tenants usually cannot enforce the Boundary Fences Act obligations, unless there is special provision in the lease that says otherwise.
If there is no possible way to erect or repair the fence from your own side of the boundary, then you can go onto your neighbour’s land but only at reasonable times.
If your neighbour’s land has a crop, garden, orchard, plantation or shrubbery, then you must get their permission first.
If you damage your neighbour’s property while doing the work, either on purpose or if you did not take care, then you may be bound to pay compensation to your neighbour for the damage caused.
There is no general right of access to neighbouring land in Tasmania, even if access is required to effect emergency repairs to one’s own house or property.
The occupier of land can refuse entry permission in most circumstances.
Public authorities have powers of entry for their public purposes.
Permission to enter is some times implied. There is for instance implied permission (known as a “licence”) to enter the land for the purpose of coming to ring the front door, or delivering goods, but no implied permission to retrieve something that has crossed the boundary (for example, a ball, or a kite, or a pet).
Where a fire burning on a total fire ban day or in breach of the Fire Service Act, an owner may enter within 1.5 kilometres of their land.
The Magistrates Court under the Access to Neighbouring Land Act can make access orders for access to neighbouring property if work is reasonably necessary and cannot be carried out or would be substantially more difficult or expensive without entry, provided entry would not cause unreasonable hardship .Talk to your neighbour first. Court is a last resort.
Trespass is an offence under the Police Offences Act. A trespasser may be asked by the occupier to leave. An occupier may forcibly remove a trespasser, but not with more force than is reasonably necessary, otherwise it may be an assault and allow the trespasser to sue the occupier. Self help is risky. Call the police if a trespasser refuses to leave.
An occupier may sue a trespasser for compensation for damage caused. The Supreme Court can order that person not trespass with an “injunction”.
Check with your Council whether a planning permit is required as this depends on the planning scheme.
A building permit is only required if the fence is more than 2.1 metres high for a timber/iron fence, or more than 1.2 metres high for a fence constructed from masonry (brick, concrete etc).
The terms of an easement or other agreement between the parties, may give fencing rights.
Otherwise, typically, neither the person using the easement nor the owner of the land is bound to fence off the easement.
The person who has the benefit of the easement does not own the land itself, so the rules of fencing between neighbours do not apply on the easement edges, unless otherwise the parties are neighbours.
The owner of the land has the right to fence off the easement, subject to not unreasonably impeding access to the easement itself.
Depending on the facts, the person who has the benefit of the easement might have the right to fence it off if fencing is necessary to exercise the easement, for instance to protect the road surface.
Copies of the Act can be obtained through the internet on www.thelaw.tas.gov.au.
Fencing and boundaries involve different layers of property rights and a shared usage of land. This raises inevitable complications.
The facts and law involving fences and boundaries are sometimes unclear and uncertain.
A good understanding of those rights and obligations and respect for them make for a sound foundation for an amicable neighbourly relationship.
A copy of this booklet may assist your neighbour and clarify the dispute.
You can choose your friends but not your neighbours. You are stuck with them and they are stuck with you.
Disputes with neighbours are difficult. Once the relationship breaks down a “contested win” on one issue may lead on to a troublesome neighbour raising a different issue where the neighbour has the strategic high ground.
Legal proceedings can sometimes fuel the fires of a feud.
To the extent good fences assist good relations and management of the shared usage , neighbourly cooperation may be a better guide for action than insisting on recourse to legal entitlements. If you cannot resolve matters by talking directly to your neighbours, consider using a mediation service like Positive Solutions ; www.positivesolutions.com.au
Tim says:
Very Interesting