Dividing Fences


The regulation of the erection and maintenance of dividing fences in WA is a combination of The Dividing fences Act 1961 and local government by-laws. It provides a process for sharing costs between neighbours, determining boundaries and a system for courts to deal with disputes over dividing fences, however it does not apply to fence height restrictions, retaining walls or encroachments.
We can determine a dividing fence as a 'sufficient fence' that separates the land of different owners, wether on the common boundary of adjoining lands or in a line other than the common boundary.

A ‘sufficient fence’ is:

  1. a fence prescribed by a local government local law;
  2. a fence of any standard agreed upon by adjoining owners provided that it does not fall below the standard prescribed by the relevant local government law;
  3. a substantial fence that is ordinarily capable of resisting the trespass of cattle and sheep; or
  4. a fence determined by a magistrate in a magistrates' court to be a sufficient fence.

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.

Any agreement, contract or covenant relating to dividing fences between owners of adjoining land overrides the provisions of the Act..  
 
Erecting a new fence between developed blocks of Land.

If you want to erect a dividing fence, a written notice must be provided to the neighbouring owner, which sets out:

The kind of fence proposed to be constructed.

The boundary to be fenced;

A proposal for fencing

It is also advisable to check your Certificate of Title with Landgate to determine any covenants that relate to dividing fences on your property.

You can make an application to the magistrates court if after 21 days you and the owners of the adjoining land cannot reach an agreement. The courts will consider the type of fence typically constructed in the area, local laws and 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.

Erecting a new fence where one or both blocks are vacant

Where one or both blocks are vacant, its advisable 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.