The Dividing Fences Act 1961 (the Act) combines with local government by-laws to regulate the erection and maintenance of dividing fences in Western Australia. The Act provides a process for sharing costs between neighbours, the determination of boundaries and a mechanism for courts to deal with disputes over dividing fences. It does not apply to retaining walls, fence height restrictions or encroachments.
A dividing fence is a ‘sufficient fence’ that separates the land of different owners, whether on the common boundary of adjoining lands or in a line other than the common boundary.
A ‘sufficient fence’ is:
- a fence prescribed by a local government local law as the minimum standard of fencing in that locality;
- a fence of any standard agreed upon by adjoining owners provided that it does not fall below the standard prescribed by the relevant local government law;
- a sufficient fence that is ordinarily capable of resisting the trespass of cattle and sheep; or
- a fence determined by a magistrate in a magistrates’ court to be a sufficient fence.
Please note: A fence which accords with the last two points above is only a sufficient fence where no local law or agreement is made.
If you erect a dividing fence of a higher standard than a sufficient fence without first obtaining the agreement of the adjoining owner, you may only claim half the cost of erecting and maintaining a sufficient fence as defined above.
The Act does not bind the Crown, so where the adjoining land is owned by the Commonwealth, State or local government and is used for public purposes, the Crown is not required to contribute to the costs of erecting or maintaining the fence.
Any agreement, contract or covenant relating to dividing fences between owners of adjoining land overrides the provisions of the Act.
Erecting a new fence between developed blocks
If you want to erect a dividing fence, a written notice must be provided to the neighbouring owner, which sets out:
- the boundary to be fenced;
- a proposal for fencing; and
- the kind of fence proposed to be constructed.
You may also wish to check your Certificate of Title with Landgate to determine any covenants that relate to dividing fences on your property.
If owners of adjoining land are unable to reach an agreement after 21 days, either owner may make an application to the Magistrates Court. In making its order, the court will consider the type of fence typically constructed in the area, how the lands are used and any local laws prescribing the type of fence for your area.
Where the owners agree or a court orders the erection of a fence, the owners must fulfil their obligations within the specified time (or within three months if no time is specified). If an owner does not fulfil their obligations within this time, the other owner may complete the work and recover half the costs from the owner in default by issuing a summons in the Magistrates Court.
Erecting a new fence where one or both blocks are vacant
Where one or both blocks are vacant, you should attempt to negotiate a written agreement with the owner of the adjoining block and the fence should be erected according to the terms of the agreement.
If you are unable to come to an agreement with the owner of the vacant land, you may still erect a sufficient fence. The owner of the vacant land would be required to contribute half of the cost incurred in erecting the sufficient fence once they had completed a building or substantial structure on their land. If the neighbour objects to paying the costs or disputes the line on which the fence was built, they can apply for an order may be made through the Magistrates Court.
Repairing a dividing fence
The Dividing Fences Act 1961 provides for the repair of fences including the realignment and re-erection of a dividing fence. It does not allow for the replacement of a damaged fence where the materials used differ from what was there originally unless that material is no longer available. In this case the materials used should be like-for-like unless an agreement between the parties is reached to use a different type of material.
When a dividing fence is in need of repair, the owners of the adjoining land are each liable to pay half the costs of those repairs even where one or both of the blocks are vacant.
Exceptions to this include situations where:
- the dividing fence was built partly by one owner and partly by the other. In this case each owner is responsible to repair the part of the fence they had built;
- the dividing fence is damaged by a storm, fire, flood, lightning or other natural act. In this case either owner may repair the fence without notice and recover half the costs of the repair from the other owner; or
- the dividing fence is damaged by fire or a falling tree or branch as a result of one owner’s actions. In this case the owner whose neglect caused the damage must repair the fence.
For further information of dividing fences, click the link below;
Deviding Fences: a guide
Written by Department of Commerce, Subtracted from https://www.commerce.wa.gov.au