It seems simple enough. You want to erect a fence to give you privacy and keep the kids and pets safe when they’re playing in the backyard. You pitch the idea of a common-boundary fence to your neighbour and immediately run into problems. Your neighbour doesn’t want one and they certainly don’t want to contribute to paying for one.
What does one do?
John Nikolic, Associate at Meyer Vandenberg, a specialist property and construction law firm here in Canberra, knows a thing or two about navigating boundary disputes in the ACT. John says the old adage by poet Robert Frost (1914)—that good fences make good neighbours—is only true when all parties agree on the type of fence, its colour, type, location, cost and who is going to handle the work to get it approved through the legal system.
“People can become very passionate about fences and disputes can be costly, time-consuming and stressful to resolve,” says John who has worked in construction as a lawyer for 10 years and who is the Chair of the Master Builders ACT Professional Sector Council.
‘’Whatever you do, don’t just plough ahead and erect a fence,’’ says John. ‘’Following the right steps in the right order can help progress matters smoothly. If you skip a step or two you could easily run into trouble and even find yourself in a nasty legal dispute with your neighbour, government authorities or both. The ACT Government requires all necessary planning and approvals to be in place before a fence or retaining wall is built.’’
The first step is to contact your neighbour with your idea to see if you can reach an agreement. Record your conversation in an email sent to your neighbour to ensure all parties are on the same page. ‘’This is important even if both parties agree,’’ says John. ‘’Such records can become important if a dispute eventuates.’’
The second step is to conduct your research, so you know what your legal responsibilities are and what approvals are essential. In some cases, this includes development approval from ACTPLA, the ACT Planning and Land Authority, and building approval from a certifier.
Generally speaking, fences require development approval if they’re more than 2.3 metres high, are forward of the building line or adjacent to open space. They require building approval if they’re more than 1.8 metres high. There are also special guidelines for retaining walls.
‘’Fences out the front of a house can be tricky,’’ says John. ‘’In keeping with the turn-of-the 20th Century Garden City Movement which inspired Canberra’s early design (including leafy, un-enclosed front gardens) fences forward of the building must comply with the Residential Boundary Fences General Code in the Territory Plan.’’
The third step is to decide with your neighbour who will take the lead on the work involved in getting approvals. John says that for fences on boundary lines, the neighbour seeking approval should seek a letter of authorisation from the other neighbour.
So what happens when you wake up one morning to discover that your neighbour has unilaterally whacked up a monstrous fence without your knowledge? And the fence substantially affects the value of your property and/or your reasonable enjoyment of your property (for example, blocking out all your sun)?
John says the affected party should immediately contact the neighbour who erected the fence and attempt to resolve the dispute. If this doesn’t work, the affected party can lodge a complaint to ACAT, under the Common Boundaries Act, to see if they can get the matter mediated and resolved satisfactorily. One thing to remember is that the applicant must provide their neighbour with one month’s notice of their fencing dispute before taking the matter to ACAT.
The Tribunal has broad powers to determine disputes in relation to the erection of new fences and the repair or replacement of existing fences, including as to the materials, location and cost of the fence. ACAT will attempt to mediate an agreement between the parties, before proceeding to a hearing and making a binding determination.
‘’We often deal with property border wars,’’ says John, ‘’and these are often about fences and associated demarcation structures. Disputes often arise when people can’t agree or when one neighbour erects a fence without consultation. This isn’t a wise approach since they may even have to take the fence down if it lacks necessary approvals.’’
Engaging the services of a lawyer may become necessary in a fencing dispute. In this case make sure you head to a law firm that specialises in such property matters, like Meyer Vandenberg Lawyers.
You can contact John Nikolic, Associate at Meyer Vandenberg, or Alisa Taylor, Partner at Meyer Vandenberg on (02) 6279 4444.
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