What side of the fence should the railings be on?
There is no rule as to which side of a fence the railings should be. If neighbours cannot agree on which side the railings should go, they should consider a type of fence without visible railings.
Are there any rules about where a fence has to be erected?
Normally, a dividing fence should be erected on the boundary. It can be erected elsewhere [Fences Act 1975 (SA) s 17], but this might lead to problems, particularly if the neighbour does not agree. If one owner erects a fence inside a boundary the neighbour may be tempted to make use of the land thereby creating possible future problems. However, legal ownership of the land will remain unchanged in virtually all cases [Fences Act 1975 (SA) s 17 and Real Property Act 1886 (SA) pt 7A]. Also, regardless of where the fence is located it is still the legal responsibility of both neighbours.
If there is a dispute about where a fence should go or is currently located, then usually the only way to determine this is to get a survey done to confirm the correct boundaries of your property with the adjoining properties. If the survey can be established as having been necessary for the fencing work proposed you can seek a contribution from your neighbour, see Costs in relation to fencing work.
In the case of existing fences that are not located on the proper boundary the court does have the power to order the removal of the fence, but this can be quite expensive. However, in the event that the fencing line is only a minimal variation from the proper boundary the court is unlikely to order the relocation of the fence. A court can order compensation be paid to a person for the loss of occupation of their land as a result of the erection of a fence not on the boundary, and this will usually be the remedy preferred by the court.
Brick and pillar fences
A fence should normally be built on the boundary line, however a brick and pillar fence, because of the extra space it covers, should be built on the proposer's property, unless the owners have agreed on some other position.
Who owns the fence?
A fence is a joint asset of both adjoining owners – regardless of who paid for it. Both parties can use it to grow vines or attach trellises, provided this does not damage the fence.
Damage or removal of a fence
If a fence is damaged or destroyed because of the wrongful act or negligence of one owner, that person is liable for the cost of repairs [Fences Act 1975 (SA) s 16(2)]. In this case, the adjoining owner can have the fence repaired and claim the cost as a debt in the Magistrates Court.
If a fence is removed (even if only temporarily) by a neighbour without the consent of the adjoining owner, or without following the procedure under the Fences Act, they may be liable to compensate the other owner. It is therefore a good idea to obtain the agreement of the adjoining owner beforehand.
How high can a fence be without requiring council approval?
Brick (masonry) fences over one metre high and all other fences over 2.1 metres high (except post and wire fences) will generally require development approval from the local council. Fences adjacent to road intersections and fences around swimming pools generally require approval as well [see Development Regulations 2008 (SA)].
Serving a notice where adjoining block is a vacant block of land
You may have difficulty telling who is the owner of the land if it is in the process of being sold. If a contract of sale has been signed, it is best to serve both the seller and the purchaser. Alternatively, it may be better to postpone serving the notice until the new owner takes possession of the property. A purchaser will not be registered as the owner until the title is legally changed into their name.
Under section 7(1) of the Land and Business (Sale and Conveyancing) Act 1994 (SA) a seller has an obligation to advise the purchaser of any notices issued under the Fences Act 1975 (SA) including any cross-notices on the Form 1 (Statement under section 7).
I want to serve a fence notice on my neighbour but I don’t know who owns the land?
If you do not know who owns the land, contact your local council or the Lands Title Office to find out who they are. If, after making reasonable enquiries, you cannot identify or find the other owner, your Form 1 or Form 2 notice must be prominently displayed on their land. If no objection or cross-notice is received after 30 days, you may proceed with the fencing work. When the other owner or the new owner later becomes known, you can require payment and take legal action if they fail to pay. In court you will have to prove that you made reasonable enquiries to find them and that the notice was prominently displayed.
As a general rule a landlord cannot recover the costs of fencing under a residential tenancy agreement except where the work was required as a result of an act or fault of the tenant.
Where an emergency has occurred and the situation is so urgent that notice cannot practicably be given (for example, where a storm-damaged fence allows animals to escape) an owner may carry out necessary repairs without giving notice to their neighbour and still recover part of the cost. However, even in such cases it is recommended that whatever notice can be provided be given. Fencing of a type similar to what was already there should be used when organising repairs or replacements.
Trellises and screens
Both neighbours may attach screens or trellises to a fence, provided they do not damage it. Freestanding screens or similar structures remain the property of one neighbour and are not considered fences. As a general rule, development approval is not required for a trellis or screen.
Walls on the boundary
A wall to a building that is located on the boundary is not a fence, even though it may serve as one. A boundary wall remains the sole property of the building owner and any dispute about it cannot be dealt with under the Fences Act procedure.
See also our booklet Fences and the Law available from our Publications page.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.