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Fences & the law-Part 2

Fences & the law-Part 2

Whilst not lawyers, licenced fencing contractors know a thing or two about the procedures involved when erecting fences, and will only be too happy to point you in the right direction while giving a quote for your new fence.

The Fences Act procedure

If you and your neighbour agree on the work and the cost-sharing, you do not have to follow the procedure under the Fences Act. However, even if you do not follow the procedure, it is wise to make a written agreement, signed by both of you.
Much of the law about fences is in the Fences Act 1975. However, the Fences Act does not contain all the law about fences. Common law, private contracts, planning regulations and other laws may apply. It also does not deal with encroachments these can be found in the Encroachments Act 1944. Legal advice should be sought in this situation.

How do I get my neighbour to pay?

If you don’t come to an agreement with your neighbour over payment and you want your neighbour to contribute to the cost, the only legal method to alter or replace a boundary fence is by using the Fences Act notice procedure. This procedure is to fill in a form (called a notice) on this should be the details of the works you are proposing to carry out and delivered to your neighbour (serving it). Unless you follow this procedure correctly, your neighbour does not have to contribute.

Simply placing the notice on the doorstop, mailing by ordinary post or placing in the letter box does not count even if your neighbour receives it. It must be served in person or mail by registered post only. Keep a copy of any notice you serve, and also a record of the date, time and method of service, in case your neighbour later says they did not get it.

If you get no reply from the other owner after 30 days, it is considered that they have agreed and you can go ahead with the work described in the notice and claim their share of the cost from them. Check with the post office when your neighbour actually collected the registered mail if you sent the notice by Registered Post. At least two days (48 hours) notice of intention to commence fencing work must be given when the 30 days are over to allow time if there are pets or privacy concerns.

Objections and counter proposals

If you are served with a notice and you object to the proposal, you should complete a Form 3 cross-notice. This cross-notice must be served on the adjoining owner within 30 days of receiving the fencing notice. The same rules of service apply as above.

You may simply state that you object the proposal, no reason has to be given. A counter-proposal does not need to be given either. However, you will be asked to give the court the reasons for objections to the proposed work if the issue goes to court. So be sure to have a good reason as the court may order you to pay court costs and order the works to go ahead

Makes sure to state the good reasons of your objections on the cross-notice.
If you have a counter proposal, you should do so, giving details of the work and the cost. Your neighbour then has 30 days to answer your notice.

If you are about to sell your land and will not get the benefit of the proposed work or not living at the property, it is not a sufficient reason for objection to the cross-notice. The Fences Act procedure binds you as long as you are the owner. However, you may wish to let your neighbours know that you are selling, as they may agree to wait and deal with the new owner. Nor is it reasonable to object to fencing simply because you are not living at the place where the fence is to be built.

An inability to afford the work will not stand up in court, particularly if the fence is in a poor state and the work is obviously needed. You should discuss terms of payment with your neighbour if you agree that the work is required but you cannot afford to pay for it at this time consider using a mediation service if you cannot agree on these terms.

Not caring about the state of the fence or thinking a fence is not needed are other reasons that are not acceptable in court.

If you receive a counter proposal, you can make a counter-counter proposal if you think it will help resolve the matter, remember the same 30 days rule applies. If the cross-notice contains an objection only and no counter proposal you do not have to reply – the notice procedure is finished without agreement or right to proceed.

If you receive a Form 1, 2 or 3 and do not object within 30 days, you will be legally bound to contribute to the proposal described on the form. This is true even if you have told your neighbour that you do not agree, or you are sure that they already know this. Serving a Form 3 or a written objection is the only legally effective way of saying that you disagree.

No agreement

The contractor or supplier is to be paid in full by the person who orders the fence and then it is their responsibility to collect the contribution from the neighbour.
If the procedure does not result in agreement, then you can:

  1. Negotiate with the other owner to see if you can find a fence or cost arrangement that you both accept.
  2. Contact a Community Mediation Service for help to settle the dispute, or
  3. Apply to your local Magistrates Court for a decision, or
  4. Not proceed with the fencing work.

Taking the case to court

Either neighbour can apply to the local Magistrates Court, if no resolution can be reached, or to any other Magistrates Court if the other person agrees.
A building expert may be asked for a report by the magistrate who may even visit the site. He or she will decide what should happen and can make a wide variety of orders to end the dispute. They will also normally order the loser to pay the winner’s costs.

Failure to proceed

If an agreement is reached or a court order is made, these works must be started within 28 days, the other owner may do it and require you to pay your share. Also if work is stopped for more than 28 days similarly the other owner may complete it. The work must be completed within the time agreed upon or set by the court or within four months.

Power of entry

You cannot go onto your neighbour’s land without legal authority. The simplest way is to ask their permission. However, if they say no, and you have followed the procedure under the Fences Act or have a court order, you can obtain a legal right to enter their land with the vehicles or equipment needed for the work, by giving 2 days written notice. (Less notice may be permissible in an emergency). Again, you must serve the notice either by handing it to them in person or by registered post.

You can only go on the land to the extent necessary for the work. Take care not to do any harm or go beyond what is reasonably necessary, or legal action for trespass or negligence could result.

Click Fences & the law-Part 1 if you missed reading the first part of this article.

Article written by: Trades Check

Trades Check is Australia's #1 website to find local licensed tradesmen & tradeswomen near you.
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