Changes to the Fences Act

Property Law: 18 March 2019

The Fences Act 1968 has been substantially amended by the Fences Amendment Act 2014 which commenced on 22 September 2014.

The amending Act has maintained the general principle that owners are liable to contribute in equal proportions to a "sufficientdividing fence.

The new Act provides more comprehensive and detailed procedures relating to:

• Sharing of costs between neighbours for the construction and repair of dividing fences;
• notifying the adjoining owner;
• liability of long term tenants to fence the property;
• failure of adjoining owners to agree, respond or be located;
• recovery of financial contributions;
• urgent fencing works;
• boundary surveys;
• resolution of disputes and adverse possession claims;
• right to access adjoining land to undertake fencing works;
• situations involving Owners Corporations.

Changes in Liability for Dividing Fences

The Fences Amendment Act 2014 shifts the liability from occupiers of land to owners of land in recognition that the fences are an improvement to the land.  Owners Corporations are deemed to be owners in respect of fences between common property and other land.  Municipal councils and others who own or manage public parks or reserves are exempted from contributing to dividing fences. 

Long term tenants remain liable to contribute to fencing works with some changes.

Contribution between Owners

The Act clarifies that owners must contribute in equal proportions to a "sufficient dividing fenceand sets out a number of factors including the existing fence, the purposes for which the owners use or intend to use the land, reasonable privacy concerns and types of the fences used in the local area.  Where one owner wants a higher standard than "sufficientthat owner must pay the difference in 

Fencing Notices

A prescribed form of notice is now required to be given to the adjoining owner before undertaking fencing works unless there has been prior mutual agreement.  There are some exceptions if the works are urgent or the adjoining owner cannot be located.

Urgent Fencing Works

An owner may undertake urgent fencing works without giving notice if it is impractical to do so but if an owner wishes to seek a financial contribution from the adjoining owner for urgent works, an urgent fencing notice must be given specifying costs, amount being claimed and the reason for the urgency.

Magistrates' Court Powers

Greater powers have been given to the Magistrates' Court to make orders including orders in relation to the time within which fencing works are to be carried out, the person to carry out the works, the line of the common boundary and orders that a party must cease or discontinue conduct that might unreasonably damage a fence.

Boundary Disputes

A more detailed process has been established to ensure that only one surveyor needs to be engaged in respect of a dispute and to resolve disputes about payment of the costs of the survey which are generally to be paid equally by the owners.

Adverse Possession

The Law allows a person to claim title to someone else's land if they have continuously occupied that land for more than 15 years without the owner's permission.  It has now been clarified that the Magistrates' Court has power to hear adverse possession claims that arise in the context of fencing disputes.

Placement of Rails and Framing

General rules have been set out about the side on which rails and framing should be placed.  Generally this will be the same side as the previous dividing fence, if any, or on the side least subject to weathering unless otherwise agreed.

Aitken Partners can advise on the application and enforcement of the Fences Amendment Act 2014.