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The Dividing Fences Act 1961 (the Act) combines with local government by-laws to regulate 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:
Note: A fence which accords with 3. or 4. 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..
If you want to erect a dividing fence, a written notice must be provided to the neighbouring owner, which sets out:
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 3 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.
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, either neighbour may erect a dividing fence provided it is a ‘sufficient fence’. The neighbour who did not contribute to the costs of the fence would be required to contribute half of the costs incurred once they had completed a building or substantial structure on their land. If that neighbour objects to paying the costs or disputes the line on which the fence was built, an application for an order may be made through the Magistrates Court.
The Dividing Fences Act 1961 provides for the repair of fences including the realignment and re-erection of a dividing fence, but does not allow for the erection of a new fence which includes the replacement of an existing fence with a fence made of altogether different materials.
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:
See the Dividing Fences Guide for more information.
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