Fencing rules and remedies
Fencing rules and remedies: what’s the law?
The following information has been provided by the Legal Services Commission SA.
For further information or concerns, contact Council.
Read Fences and the law booklet
10 common legal questions about fences
1) Which side of the fence should railings be?
There is no law saying which side of the fence the railings should be. If neither neighbour is willing to have the railings on their side, consider a style of fence that conceals the railings, such as 'good neighbour' fencing.
2) If legal action forces me to have a fence, what kind of fence will it be?
The courts decide what kind of fence is needed by looking at what is an 'adequate fence'. This means a fence that is typical of good fencing in your area and is adequate for the purposes of the neighbour who is being asked to pay (usually half the cost). In rural areas, post and wire fencing might be adequate, but in residential areas a steel fence (e.g. Colorbond) is usually considered sufficient.
3) Do I have to seek my neighbour’s agreement if I decide to pay the full cost – or if I undertake all the work – on my own?
Yes. Even if you pay the whole cost of a fence you should still get their permission. A court may order a person who removes a fence without permission to restore the original fence or alter the new fence if it does not suit the neighbour.
4) Do I have to have a fence?
There is no general law requiring a fence between neighbours; most people simply agree to have one. However, the courts generally consider it reasonable to have a fence and to keep it in good condition.
5) What if my neighbour damages the fence (e.g. his car, dog, tree or garden beds cause damage)?
Either neighbour may use the fence to support a trellis, grow a creeper or provide shelter for plants etc - provided they do not damage the fence. If your fence requires repair or replacement because of things your neighbour has done, your neighbour should pay for this fencing work. If they refuse to pay, you can arrange for the work to be done using the legal procedures outlined in the Fences Act.
6) Does the fence have to be on the boundary – and what if my neighbour wants to put a chunky masonry fence on my land?
Fences should be on the boundary, but in practice many fences are not precisely on the boundary. This does not change who really owns the land and need not matter if both neighbours accept it. Generally, a fence should straddle the boundary line, but a masonry fence, which might be wider, should usually be on the land of the person who wants it, with the outer face on the boundary.
7) If my neighbour puts up a new fence or changes an existing fence without my consent (and they pay for it all themselves), what can I do if I don’t like it?
First, speak to the neighbour to see if your concerns about the fence can be addressed. If that fails, consider mediation. If that doesn’t work, you can give your neighbour a Fences Act notice which allows you to propose changes to the fence. Your neighbour can then respond to your proposal. If you cannot reach a solution after exchanging legal notices, you must make an application to the Magistrates Court for an order to change the fence.
8) What are the powers of entry onto a neighbour’s property for the purpose of building or fixing a fence?
You cannot go onto your neighbour’s land without legal authority. The simplest way is to ask their permission. But 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 by giving two days’ written notice.
9) Do I need council approval for a fence?
As a general rule, you need council approval to build a fence higher than 2.1 metres, a masonry fence higher than one metre, or a fence over one metre in height within six metres of a road intersection. Some areas have special regulations, so check with your council before starting any work. In West Torrens, there are also rules around flood prone areas and brush fences - check with us on 8416 6333.
10) And finally, how do I get my neighbour to pay for the fencing work?
If you and your neighbour don’t agree on the fencing costs, you must use the Fences Act notice procedure. It is the only legal avenue for resolving the dispute if your neighbour refuses to contribute to the cost of building, repairing or replacing a boundary fence. The process involves completing a form (called a notice) with details of the work you propose and handing it to your neighbour (or sending it by Registered Post). Your neighbour does not have to contribute financially if you do not follow the process correctly. For further information about this legal process, call the Legal Services Commission Helpline on 1300 366 424.