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In South Australia, the Fences Act 1975 (the Act) covers the construction of dividing fences, the repair of existing fences and financial contributions between adjoining owners.
There is an obligation on the owners of adjoining residential land that is not divided by an adequate fence to provide an adequate fence. This can be achieved by:
Only the owners of the properties, or occupiers who have the consent of the owner, have rights and obligations under the Act.
If the builder intends to install a new fence on a property, the Act requires the owner (proponent) to serve the adjoining owner with a Form No.1 Notice of Intention to Erect a Fence. If it is a replacement fence, then the proponent must serve the adjoining owner with a Form No. 2 Notice of Intention to Perform Replacement, Repair or Maintenance Work.
The mandatory elements of a notice is that it:
Within 30 days of receiving a notice to fence, the adjoining owner may serve a Form No. 3 Cross-Notice containing an objection to the proposal or a counter-proposal.
Within a further 30 days, the proponent may object by written notice to the counter-proposal.
If either of the parties fails to serve a counter-proposal notice or objection to a counter-proposal within 30 days of being served, then they are taken to have agreed to the proposal or counter-proposal.
Alternatively, a party may agree to a proposal or counter-proposal by written acceptance.
Either party may proceed with the works upon the expiration of the 30-day period from notice to fence or the notice of counter-proposal where no objection has been received within that time. There can be no request for contribution unless the appropriate notices have been given.
A person, including a building or contactor, may enter adjoining land for the purpose of carrying out fencing work in accordance with the Act.
They must give the owner of the land at least two days’ notice before entering the property, except in the event of an emergency. The notice must be in writing and delivered in person or by registered post.
A party may perform the work as set out in the notice if the other party:
If neither party progresses the work within the agreed time period, or if there is no agreed time period then a period of 4 months, the agreement to fence shall lapse.
The cost of repairing the fence is as agreed between the parties or where no agreement can be reached, as ordered by the Magistrates Court.
However, if the damage was caused by an adjoining owner, they are solely liable for the cost to repair the fence. The notice to repair should detail the reason for the damage.
The Act requires the proponent to serve the adjoining owner with a Form No. 2 Notice of Intention to Perform Replacement, Repair or Maintenance Work.
If the adjoining owner was responsible for the damage, the owner must state the cost of the proposed repair works and the amount they are seeking to recover from the adjoining owner towards the costs of the proposed works. The adjoining owner may reject this with a Form No. 3 Cross-Notice within 30 days.
If the parties cannot agree on a fencing matter, a party may make an application to the Magistrates Court to determine:
Further information about this process is available on the Courts SA website.
South Australia’s Courts Department also provides a mediation service, which assists the parties to:
Typically the costs of mediation are shared between the parties.
The Magistrates Court has further information on mediation.
The SA Government has further information available on fences and the law, including Forms 1, 2 and 3.
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