Resolving Fencing Disputes

Fencing Dispute

It was with good cause that Robert Frost doubted the phrase ‘good fences make good neighbours’,[1] especially when they’re built without a neighbour’s consent.  Disputes between neighbours about the height, colour and materials used for a border fence, not to mention costs, are a frequent source of disputes between Territorians.  When a neighbour takes matters into their own hands by unilaterally erecting a fence, their enclosed counterparts are often left wondering what, if anything, they can do about it.

In the ACT, aside from (yet to be tested) false imprisonment claims against encroaching fences under the Magna Carta 1297 (ACT),[2] 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 ACT Planning and Land Authority (ACTPLA) and / or the Construction Occupations Registrar.  Depending on the circumstances, common law remedies may also be available, including ‘self-help’ removal of encroaching fences.

Unapproved structures
Unless a fence and any associated retaining walls fall within relevant exemptions,[3] they will require development approval from ACTPLA and building approval from a certifier.  Generally speaking:

  • Fences require development approval if they are more than 2.3 metres high, are forward of the building line or adjacent to open space; and require building approval if they are more than 1.8 metres high; and
  • Retaining walls require development approval if they are more than 0.4 metres high, and are either forward of the building line or within 1.5 metres of a side or rear boundary; and require building approval if they are more than 1.2 metres high.

In keeping with Canberra’s early ‘garden city’ design principles, which encouraged leafy, un-enclosed front gardens, fences forward of a building line (along with certain other boundary treatments) must comply with the Residential Boundary Fences General Code in the Territory PlanLease and development conditions for particular blocks and precinct codes may also include rules in relation to fences.

If a fence or retaining wall lacks relevant approvals, complaints can be made to ACTPLA or to the Construction Occupations Registrar for the unapproved structures to be removed.[4]  Where a neighbour makes a development application for a border fence or retaining wall, an affected party can also lodge a representation, which will be taken into account by ACTPLA in considering the development application.

Actions under the Common Boundaries Act
Regardless of whether a fence has relevant approvals, a disgruntled neighbour can take their complaints to the ACAT, under the Common Boundaries Act.  The Tribunal 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,[5] with reference to factors such as customary neighbourhood practices, privacy and planning requirements.  The Tribunal 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.[6]

However, the ACAT does not have jurisdiction (at least 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.[7]

Generally speaking, ACAT must apportion costs equally, especially if a ‘basic fence’ is to be erected, being a 1.5 metre high timber-paling fence.  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.  Generally fences constructed on a boundary line will be owned by both neighbours as tenants in common (in proportion to their level of contribution) while fences constructed wholly within one parcel will usually belong to the owner of that block, in accordance with the law of fixtures.

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 ‘needs to be repaired or replaced without delay to protect people … or to prevent the escape of animals’[8] then a fence may be repaired or replaced without notice to the neighbour, and an application made to the ACAT for a determination apportioning costs.

Other actions and encroachments
As the Tribunal 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’.[9]  To the extent that a fence or retaining wall causes physical injury to a 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.[10]  However, where a ‘spite fence’ is erected to block a neighbour’s view, it will generally not be actionable in nuisance (there is no common law right to an uninterrupted view) unless the fence was unlawfully constructed (e.g. without necessary approvals).[11]

Alternatively, actions in trespass (for an encroaching fence) or negligence (e.g. subsidence from a poorly constructed retaining wall) may be available.[12]  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).[13]

If a fence or retaining wall has not been constructed on the boundary line (a matter that can be confirmed by a qualified surveyor) the encroached neighbour may have right to ‘abate’ (i.e. remove) the encroachment, as long as they do not trespass on the adjoining land.  However, such ‘self-help’ remedies are generally frowned upon, and normally a court or tribunal order would be sought to remove the encroachment first.

That fence wasn’t there before!  What should I do?
If you wake up to find yourself enclosed without consultation, you should first contact your neighbour to attempt to resolve the dispute. Consideration should also be given to whether the fence encroaches onto your land, and whether it has relevant building and planning approvals.  If it is an unapproved structure, complaints to the regulatory authorities can be made.  If that fails to resolve the dispute, after sufficient notice is given, an application may be able made to the ACAT for formal mediation or determination of the boundary dispute.

Legal advice should always be sought on the most appropriate remedy for particular cases.  Meyer Vandenberg can provide advice and advocacy on the most effective solution for your dispute.

For more information contact the Building and Construction Team:
Alisa Taylor               Partner                        Building and Construction
(02) 6279 4388           Alisa.Taylor@MVLawyers.com.au

John Nikolic              Associate                     Building and Construction
(02) 6279 4317           John.Nikolic@MVLawyers.com.au

 

[1] Robert Frost, ‘Mending Wall’, 1914.

[2] Which declares that no-one ‘shall be … disseised … of his liberties’ or ‘imprisoned … but by … the law of the land’.

[3] For more detail, see: https://www.planning.act.gov.au/topics/design-and-build/da_assessment/exempt_work/process/courtyard_and_freestanding_walls;  and https://www.planning.act.gov.au/topics/design-and-build/da_assessment/exempt_work/process/retaining_walls.

[4] The complaints form is available at: https://www.accesscanberra.act.gov.au/app/answers/detail/a_id/3331.

[5] Cherian & Anor v Roy [2017] ACAT 106, at [19(b)].

[6] Zhang & Yuan v Koh [2010] ACAT 6, at [18].

[7] Kontikis & Anor v Schreiner & Ors (1989) 16 NSWLR 706; though see Zhang & Yuan v Koh [2010] ACAT 6 at [24].

[8] Common Boundaries Act, section 6.

[9] Cherian & Anor v Roy [2017] ACAT 106, at [20].

[10] For claims up to $25,000.

[11] Owen v O’Connor [1963] SR (NSW) 1051.

[12] For example, see: Sinclair & Sinclair v Sijak [2015] ACAT 671.

[13] Cherian & Anor v Roy [2017] ACAT 106, at [21]-[22].