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Fencing Adelaide

Guide 3 of 7 · Rows 1 and 2 of the count

Guide 3 of 7

Thirty days, and no reason needed

A notice served under the Act opens thirty days in which the neighbour may answer with a cross-notice, and an objection does not have to be explained. A cross-notice that carries counter-proposals opens a second count of thirty days, this time for the proponent.

General information about South Australia’s fencing law, not legal advice about your fence.

  1. The notice A notice in Form 1 or Form 2 starts the Act's machinery. Form 1 must state six things (s 5(2)).
  2. Their 30 days The Magistrates Court, to which a fencing dispute may be taken (s 12)Thirty days from service. No objection served in them, and the Act deems agreement (s 7).
  3. Your 30 days, from C C+1C+30 The Magistrates Court, to which a fencing dispute may be taken (s 12)From C, the day a cross-notice is served: the proponent's thirty days to object to a counter-proposal (s 6(3)).
  4. 28 days to start E+1 Twenty-eight days from the day the proponent may proceed, and the last two days of the thirty are drawn empty: miss the twenty-eight, or any longer period the parties agree or the court fixes, and the adjoining owner may start (s 8(3)).
  5. 2 days to enter W At least two days before the work day W: notice in writing before the land is entered, except in an emergency (s 18(2)).
  6. Four monthsa different scale Four months, or another period agreed or ordered. Past it the part of the agreement still to be performed lapses (s 8(5), (6)).
  7. No count Damaged or destroyed, with an urgent need to repair or restore: the work may be done without notice, and no count runs (s 16(1)).

Every row of the count opens a guide. Each row is a section of the Fences Act 1975 (SA), named on the row, and the columns are days, read left to right; a hatched cell is drawn empty on purpose.

  1. 0 The noticeWhat the notice must say Six cells for the six things the form must state (s 5(2))

    Six things on the form: length and position, nature, a cost estimate, the amount sought, any compensation, the contractor (s 5(2)).
    Fences Act 1975 (SA), s 5(2)

  2. 30 Their 30 daysAnswering a notice Thirty lit days, from service to the end of the count (s 8(1)(a))

    Thirty days from the day the notice is served. Silence at the end of them is agreement (s 7).
    Fences Act 1975 (SA), s 8(1)(a)

  3. 30 Your 30 days, from CAnswering a notice Thirty lit days, counted from C, the day a cross-notice is served (s 6(3))

    From C, the day a cross-notice is served: the proponent's thirty days to object to a counter-proposal (s 6(3)).
    Fences Act 1975 (SA), s 6(3)

  4. The Magistrates Court, to which a fencing dispute may be taken (s 12)

    A difference about fencing work may be taken to the Magistrates Court, the court the Act names (s 12).
    Fences Act 1975 (SA), s 12

  5. 28 28 days to startStarting, and stalling Twenty-eight lit days, and two cells drawn empty (s 8(3))

    Twenty-eight days to begin, or any longer period the parties agree or the court fixes, counted from the day the proponent may proceed; two cells are drawn empty beside them (s 8(3)).
    Fences Act 1975 (SA), s 8(3)

  6. 2 2 days to enterStarting, and stalling Two lit cells before the work day W (s 18(2))

    At least two days before the work day W: notice in writing before the land is entered, except in an emergency (s 18(2)).
    Fences Act 1975 (SA), s 18(2)

  7. 4 Four monthsStarting, and stalling Four month bars, on their own scale (s 8(6))

    Four months, unless another period is agreed or ordered, after which the unperformed part of the agreement lapses (s 8(5), (6)).
    Fences Act 1975 (SA), s 8(6)

  8. none No countAfter a storm One marked day, and no count lit beside it (s 16(1))

    Damaged or destroyed, with an urgent need to repair or restore: the work may be done without notice, and no count runs (s 16(1)).
    Fences Act 1975 (SA), s 16(1)

  • CC, the day a cross-notice is served. The adjoining owner may serve it within thirty days after the notice was served (s 6(1)), and the proponent's own thirty days run from C (s 6(3)).
  • EE, the day the proponent becomes entitled to proceed. The twenty-eight days to start are counted from it (s 8(1), (3)).
  • WW, the day the land is entered for the fencing work. The notice in writing is served at least two days before it (s 18(2)).

The thirty days after service

Section 6(1) of the Fences Act 1975 (SA) gives the adjoining owner thirty days after service of the notice to serve a cross-notice, and it is the cross-notice that registers an objection to what the proponent has proposed. The Law Handbook (Legal Services Commission of South Australia) puts the same window in plain words: after serving the notice, the owner waits to see whether a cross-notice arrives and whether it carries counter-proposals, which the chapter describes as what the neighbour wants done to the fence instead.

The same chapter gives the reason the window matters. Unless the neighbour has agreed to the proposal, the full thirty days have to be waited out before the work starts, and an owner who does not wait loses the right to recover costs from the neighbour. The Act states the same forfeit from the other direction: no contribution is recoverable under the Act for fencing work performed before the proponent becomes entitled to proceed.

What the cross-notice carries

The cross-notice has its own form: Form 3 in the Schedule to the Act. Two things are asked of it. It must state which of the proposals the adjoining owner objects to, and it may contain counter-proposals about the fence to be erected, or about the replacement, repair or maintenance work proposed.

The reason box does not exist. An objection may be general or specific, and the Act says in terms that it is not necessary to assign any reason for an objection in a notice under the Act. The Law Handbook says the same thing in one line, and its page adds a practical note beside it: an owner who receives a notice or a cross-notice and thinks the proposal is fair but cannot pay for it is better off negotiating payment with the neighbour than objecting to the notice.

The proponent's own thirty days

A cross-notice with counter-proposals turns the count around. Where the proponent objects to a counter-proposal, section 6(3) gives thirty days after service of the cross-notice to serve notice of that objection in writing on the adjoining owner. The Law Handbook keeps the same shape: where the counter-proposals are not agreed to, there are thirty days to object in writing.

On the count's own grid this is the second row, and it is the reason the row is drawn from C rather than from day zero: C is the day the cross-notice is served, which can fall on any of the thirty days of the first count.

Silence is agreement

Section 7 is the hinge of the whole count. A person to whom a proposal or counter-proposal has been made who does not serve notice of objection in accordance with the Act is deemed to have agreed to it. The Law Handbook spells out what that means at the kitchen table: an owner who serves no written objection within the thirty days is taken to have agreed, and both neighbours are then normally held to the notice's terms, including the amount of money each of them must pay. Its other page adds the hard edge: once the time the law allows has passed, the work can no longer be objected to.

What the count then allows

Once a notice has been served under the Act, section 8(1) says when the proponent may proceed with the fencing work. If no cross-notice is served in the thirty days, that is after they expire. If a cross-notice is served, it is after agreement is reached on the proposals and counter-proposals, or after the differences have been adjudicated by the court. Those are section 8(1)'s two doors: the thirty days ending quietly, or an agreement or a court's decision.

The case the Law Handbook reports

The chapter carries a working example under the name it gives the case, Jackson and Jackson v Takacs, and the facts are spare. The neighbour owed nothing towards the fence, because he had not agreed to pay, and it could not be presumed that he had agreed before the thirty days were up. No cross-notice had been served either. The pair who had built still recovered no money for the fence, and the reason the chapter gives is that they went ahead before the thirty days had passed.

The same chapter's warning sits under it: a procedure not followed correctly leaves the neighbour free of any duty to contribute.

An example, kept in days

One notice, read through the count

This is an example, and it is set in the Act's own arithmetic rather than on a calendar. Day 0 is the day the notice is served on the neighbour.

  1. Days 1 to 30

    The neighbour may serve a cross-notice at any point in these thirty days. C is whichever day that turns out to be, and it may be any one of them.

  2. From C, for 30 days

    If the cross-notice carried counter-proposals and the proponent does not accept them, the proponent has thirty days from C to object in writing.

  3. At the end of the first 30

    If no cross-notice arrived in the first thirty days, the neighbour is deemed to have agreed, and the proponent may proceed with the work.

  4. If a cross-notice arrived

    The work waits for agreement on the proposals and counter-proposals, or for the court to adjudicate the differences.

No calendar dates appear beside those periods, because the Act counts them from the events: service of the notice, and service of the cross-notice. The example follows that counting, and nothing here names a day of a month.

If the money is the problem

Affording a fence is not a defence the sources offer, and the Law Handbook is exact about it: a court will not turn down a reasonable fencing proposal just because a neighbour cannot afford it. What the same page recommends is negotiation on payment rather than an objection to the notice. Where the two owners cannot reach each other at all, the Act's other routes are open: the notice that goes on the land when the owner cannot be found, and the court, which the court guide sets out.

Four guides carry the count on from this point. What the notice must say sets out the two forms and their fields. Who pays, and how much works through the money the notice names. Starting, and stalling covers the twenty-eight days and the four months that follow the count. A dispute in court covers the court the Act names.