Fencing Disputes

Over the years we have been contacted from time to time by clients who are having a dispute with their neighbours in relation to the boundary fences. Sometimes the issue relates to the state of the fence, it’s location or the construction of a new type of fence. One issue to bear in mind of course is that the neighbours will remain next door, potentially for an extended period, so that if at all possible the parties need to reach agreement without a lawyer being involved. If your fence is in the state of disrepair having a chat over a cup of coffee is the best way to proceed. I would then recommend that at least two fencing contractors be asked to provide quotations.

Normally a new fence would be constructed on the existing fence line with the palings on the same side. Fencing contractors would expect unencumbered access, so if the garden is overgrown on one side this needs to be removed or that cost would be borne by the neighbour whose garden is involved. The rights of owners are detailed in the Fences Act. Where a fence is in a state of disrepair but the adjoining neighbour refuses to take act then a Notice to Fence can be served, and if all else fails proceedings may be issued in the Magistrates Court as a last resort. Legal fees would then be claimed against the neighbour.

A neighbour can only be forced to replace a fence with the same type of fence. If one neighbour seeks to replace a paling fence with a brick fence for example then in the absence of agreement that neighbour can only seek to claim a share of the cost of replacement with a paling fence. Similarly, if you want to attach trellis to create a higher fence then you cannot force a neighbour to contribute.

Sometimes a dispute can arise if one party claims that the fence is not located on the boundary line. If necessary a check survey could be obtained, again at the cost of both parties. This would be a last resort unless a significant amount of land is involved. This could lead to a claim for ownership by adverse possession which is a separate issue.

TONY BOWLEN DIRECTOR 
Bowlen Dunstan & Associates Pty Ltd
38 Beetham Parade Rosanna VIC 3084
PH (03) 9459 5755

www.bowlendunstan.com.au