What is the aim of the changes?
The changes in the legislation are the first in nearly 50 years and aim to make the law on fences clearer, simpler and fairer. The changes help clarify one of the most common causes of disputes between neighbours. The new laws will enable people to reach agreement with their neighbour about building, rebuilding or repairing a boundary fence.
What are some of the main changes?
- Contributions between owners and sufficient dividing fence factors The pre-amendment Fences Act 1968 provided that contributors were to be in equal proportions to a “fence sufficient for the purposes of both occupiers.” There was little guidance on what constituted as “sufficient”. The Fences Amendments Act 2014 clarifies that owners must contribute in equal proportions and sets out a number of factors to be considered when determining what is “sufficient”.
- Long term tenants Long term tenants have always been liable to contribute to fencing work in some instances. The Fences Amendment Act 2014 maintains this stance but now provides a comprehensive break-down of contributions between an owner and long-term tenant.
- Notice of proposed fencing works even where no contribution is sought Notice used to only be required where no financial contribution was being sought. The Fences Amendment Act 2014 provides that an owner must generally give notice to an adjoining owner before fencing works are undertaken, unless the owners have already reached an agreement.
- Process where adjoining owners cannot be located or does not respond If an owner wishes to undertake fencing works but cannot locate the adjoining owner after making reasonable enquiries, that owner may undertake the works. If an owner gives a fencing notice but after 30 days the adjoining owner does not respond, the owner may undertake the works. In either circumstance, a court order will be required if the owner who undertakes the fencing works wishes to seek a contribution from the adjoining owner.
- Urgent fencing works The Fences Amendment Act 2014 is flexible about the circumstances that may arise for urgent fencing works. If fencing works needs to be undertaken urgently and it is impracticable to give a fencing notice, an owner may undertake the works without a notice.
- Increased powers for the Magistrates’ Court The Magistrates’ Court now has increased powers to make orders about the time in which the fencing works should be carried out, the person to carry out the works, the line that is the common boundary and that any party cease or discontinue conduct that is unreasonably damaging a dividing fence.
What if a fencing agreement between owners cannot be reached?
If neighbours cannot reach a formal agreement about a new or replacement fence, the changes to the legislation allow one party to give notice to the other neighbour setting out the details of a proposed fence type, location and estimated costs break-down. If the neighbours are unable to reach a resolution, either owner can seek an order from the Magistrates’ Court specifying what type of fence should be constructed and how the costs should be divided up.
If you are experiencing a fencing dispute or wish to obtain more information, please contact one of our practitioners from the litigation team at Dangerfield Exley Lawyers – Steven Dangerfield, Lynda Lim or Angela Catanzariti.
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