Neighbours…everybody needs good neighbours
Robert Frost had valid cause to doubt the phrase ‘good fences make good neighbours’ [1], especially when they’re built without the neighbour’s consent. Disputes between neighbours about the height, colour and materials used for a boundary fence, not to mention costs, can cause significant stress, especially when the fence is something you have to look at every day.
In the ACT, fencing disputes are usually determined by the ACT Civil and Administrative Tribunal (ACAT) under the Common Boundaries Act 1981 (ACT) (Common Boundaries Act). If the fence requires (but lacks) relevant planning and building approvals, complaints can also be made to the Territory Planning Authority (TPA) and / or the Construction Occupations Registrar. Depending on the circumstances, common law remedies may also be available, including in certain cases the ‘self-help’ removal of encroaching fences.
Approvals required for fences
Fences and their associated retaining walls may not need development and / or building approval if they fall within relevant exemptions in the Territory Plan or under the Building Act, which relate to the height, location and material of the fence or retaining wall. Lease and development conditions for blocks may also include rules in relation to fences.
If not exempt, the fence / wall will require development approval from the TPA and / or building approval from a certifier. If a development approval is required, an affected party may be invited to lodge a representation, which will be taken into account by the TPA in considering the development application, and may ultimately lead to review rights in the ACAT.
If a fence or retaining wall is erected unlawfully, complaints can be made to the TPA or to the Construction Occupations Registrar for an order requiring the structures to be removed.
Actions under the Common Boundaries Act
Regardless of whether a fence has relevant approvals, a neighbour who takes issue with a fence constructed on their boundary can take their complaints to the ACAT, under the Common Boundaries Act. The ACAT has broad powers to determine disputes in relation to the erection of new fences and the repair / replacement of existing fences, including as to materials, location and costs.
Under the Common Boundaries Act, there is a right to have land enclosed with a ‘sufficient’ fence [2], with reference to factors such as customary neighbourhood practices, privacy and planning requirements. The ACAT has commented that:
Adjoining property owners are entitled to a reasonable dividing fence between them. The judgement of what is reasonable and what should be replaced or repaired depends upon the circumstances and conditions of the fence and its surrounds. It is not enough that a fence built by one party is stable and not in danger of immediate collapse. The style and standard of construction, its appearance from both sides and its consistency with other fences in the immediate area where a number of houses and fences are of a similar age and style are all relevant factors. A fence which has been badly built compared with the adjoining fences may diminish, if only in a small way, the value of a property. People attending at the house may comment adversely on the fence which the owner may consider a reflection on him or her. [3]
Generally speaking, ACAT must apportion costs of erecting or repairing a boundary fence equally between neighbours, especially if a ‘basic fence’ is to be erected. However, the ACAT can apportion costs disproportionately if there are special circumstances that make it just for one party to bear more costs than the other.
Before taking a fencing dispute to the ACAT, applicants must provide their neighbours with at least one month’s notice of their proposal / concerns. Normally the ACAT will attempt to mediate an agreement between the parties, before proceeding to a hearing and making a binding determination on them.
Where a fence repair or replacement is urgent – that is, it ‘needs to be repaired or replaced without delay to protect people … or to prevent the escape of animals’ [4]– then notice can be dispensed with, and an application made to the ACAT for a determination apportioning costs after the event.
However, the ACAT does not have specific jurisdiction under the Common Boundaries Act in relation to retaining walls that support land, as opposed to the fence itself, which often form part of dividing structures between sloping parcels of land [5]. Disputes about retaining walls can therefore require more analysis before a decision is made about how to proceed.
Other actions and encroachments
As the ACAT has held, ‘the right of one neighbour to insist on a common boundary fence is consistent with the common law duty of a land owner to fence in all things or effects that may emanate from their land and adversely affect the neighbours land’ [6]. To the extent that a fence or retaining wall causes physical injury to something located on their neighbour’s land or unreasonably and substantially affects the reasonable enjoyment of their land, the affected neighbour may bring an action nuisance before the Tribunal [7]. However, where a ‘spite fence’ is erected to block a neighbour’s view, it will generally not be actionable in nuisance unless the fence was unlawfully constructed [8]. There is no common law right to an uninterrupted view.
Alternatively, actions in trespass (for an encroaching fence) or negligence (e.g. subsidence from a poorly constructed retaining wall) may be available [9]. A neighbour may also be able to sue for breach of contract (e.g. where neighbours entered into an oral costs-sharing agreement which was not complied with) or unjust enrichment (e.g. where one neighbour induced the other to incur expenses in relation to a fence, but then refused to contribute towards its cost) [10].
If a fence or retaining wall has not been constructed on the boundary line the encroached neighbour may have right to ‘abate’ (i.e. remove) the encroachment, as long as they do not trespass on the adjoining land. A report from a qualified surveyor will be necessary to determine the boundary line. However, ‘self-help’ remedies are generally frowned upon, and normally a court or tribunal order would be sought to remove the encroachment first.
What to do if a dispute is brewing with your neighbour over a fence
In the interests of preserving an amicable relationship with those who live closest to you, the best outcome is an agreed outcome. However, before you approach your neighbour with your complaints and possible solutions, it is a good idea to understand your rights.
If your concern is about an encroachment onto your land, your first step should be to engage a qualified surveyor to define the boundary and identify any encroachment.
If your concern is about the shape, size or location of an existing or proposed fence, you may wish to seek legal advice on whether the fence is lawful, and your available options if it is not.
If you are having difficulty reaching agreement with your neighbour on contribution to the cost of construction, repair or replacement of a boundary fence, it can help to have a lawyer advise you about the approach to the negotiations and your options if the issue can’t be resolved.
We have significant experience in assisting clients to resolve boundary fence / retaining wall disputes, as quickly and amicably as possible. Our focus is always on achieving negotiated outcomes that preserve the relationship, but where resort to litigation of entrenched disputes is necessary, we do so as cost effectively as possible.
[1] Robert Frost, ‘Mending Wall’, 1914.
[2] Cherian & Anor v Roy [2017] ACAT 106, at [19(b)].
[3] Zhang & Yuan v Koh [2010] ACAT 6, at [18].
[4] Common Boundaries Act, section 6.
[5] Kontikis & Anor v Schreiner & Ors (1989) 16 NSWLR 706; though see Zhang & Yuan v Koh [2010] ACAT 6 at [24].
[6] Cherian & Anor v Roy [2017] ACAT 106, at [20].
[7] For claims up to $25,000.
[8] Owen v O’Connor [1963] SR (NSW) 1051.
[9] For example, see: Sinclair & Sinclair v Sijak [2015] ACAT 671.
[10] Cherian & Anor v Roy [2017] ACAT 106, at [21]-[22].
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