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Fencing Adelaide

Guide 1 of 7 · Row 0 of the count

Guide 1 of 7

Six things the notice must say

The count starts with a form, and the form is not left to taste. A notice to erect a new fence must be Form 1, and it must state six things, each of which the Act names. A notice for work on a fence that already stands is Form 2, with four things to state.

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)).

A form, not a letter

The Act gives an owner who proposes to erect a fence dividing their land from an adjoining owner's land a notice of intention that may be served on that neighbour. It gives the same starting point to an owner who proposes replacement, repair or maintenance work on a fence that divides the two properties.

The Law Handbook (Legal Services Commission of South Australia) describes the process in plainer words: a form called a notice of intention is filled in with the details of the proposed work, and it is served on the neighbour, which is to say delivered to them legally, for a response. The same chapter names the two forms: the Notice of Intention to Erect a Fence, and, for work on a fence that is already there, the notice of intention for replacement, repair or maintenance work.

None of this is needed where the neighbours agree. The Law Handbook says that an agreement on the work and the cost takes the pair outside the Act's procedure altogether, though it adds that the agreement should be put in writing and signed by both of them. Where they do not agree, the same page says the notice procedure is the route that must be used, and that, for a boundary fence an owner wants erected, repaired or replaced, it is the only legal method where the neighbour will not agree to contribute.

Form 1: a new fence, six things

The Act's own words: the notice must be in Form 1 in the Schedule to the Act and must state the following, under section 5(2).

  • (a)

    the length and position of the proposed fence

  • (b)

    the nature of the proposed fence

  • (c)

    an estimate of the cost of the erection of the proposed fence

  • (d)

    the amount that the proponent seeks to recover from the adjoining owner towards the cost of the proposed fence

  • (e)

    where the proposed line of the fence encroaches into the land of the adjoining owner, whether the proponent proposes to pay compensation to the adjoining owner for loss of occupation, and, if so, the amount of that compensation

  • (f)

    the name and address of any contractor or other person by whom the proposed fence is to be erected

Those six fields are the Act's, quoted here from section 5(2). The first of them, the length and position of the fence, matters beyond the form itself.

Form 2: work on a fence that is there

Where the owner proposes to replace, repair or maintain a fence rather than build one, the notice is Form 2, and section 5(4) gives it four fields.

  • (a)

    the nature and location of the proposed work

  • (b)

    the cost of the proposed work

  • (c)

    the amount that the proponent seeks to recover from the adjoining owner towards the cost of the proposed work

  • (d)

    the name and address of any contractor or other person by whom the proposed work is to be performed

The two forms, field by field

Read side by side, the two forms overlap on two points and divide on the rest. Both ask for the amount the proponent wants back from the neighbour, Form 1 at (d) and Form 2 at (c), and both name the contractor, Form 1 at (f) and Form 2 at (d).

The length and the position of the fence belong to Form 1 alone, and so does the encroachment field: whether the proposed line crosses into the neighbour's land, whether compensation for the loss of occupation is offered, and how much. The cost field is asked differently in each: Form 1 wants an estimate of what the erection will cost, and Form 2 wants the cost of the proposed work.

Form 1 names the nature of the fence; Form 2 names the nature and location of the work.

Form 1, the six fields

  • length and position of the fence
  • nature of the fence
  • an estimate of the cost of erecting it
  • the amount sought from the neighbour
  • encroachment and any compensation for loss of occupation
  • the contractor's name and address

Fields quoted from section 5(2) of the Fences Act 1975 (SA).

Form 2, the four fields

  • nature and location of the work
  • the cost of the work
  • the amount sought from the neighbour
  • the contractor's name and address

Fields quoted from section 5(4) of the Fences Act 1975 (SA).

Signed, and served

A notice under the Act must be signed by the person giving it, or by their solicitor, attorney or agent. Service is personal or by registered post.

The Law Handbook adds a practical warning about procedure: if the procedure is not followed correctly, the neighbour does not have to contribute, and it points to the case it reports as Jackson and Jackson v Takacs. That case, and the thirty days behind it, are set out in Answering a notice.

When the owner cannot be found

Section 9 meets the case where the adjoining owner cannot be identified or found after reasonable inquiry. The proponent may put a Form 1 notice on a prominent part of the neighbour's land, and if no cross-notice is served in response, proceed as if the neighbour had agreed to the proposal. The alternative in the same subsection is an application to the court, which may approve the proposal with or without changes and order the neighbour to pay an amount towards the cost.

The Law Handbook describes the same step from the owner's side: the notice is placed in a prominent spot on the land, and the work waits thirty days so that a cross-notice has its chance. If the neighbour is found later, the Act lets the proponent sue for the contribution or enforce the court's order, and the court may order whatever contribution it considers just in the circumstances.

A notice that complies in substance

The Act is not fussy about its own paper: a notice or cross-notice that complies in substance with the Act is deemed to comply even if it is not in the form the Act requires.

What a notice does not settle

A notice is not a permission to touch what is already there. The Law Handbook says that a neighbour has a right to object to a fence being put up where none has stood before, and that removing or altering a fence that exists calls for the neighbour's permission or, failing that, a court order. Its reason is ownership: a fence is a joint asset between the two properties, and the neighbour remains a joint owner of it even if they never paid for it. The chapter cites the case of Matthews v Christie [2001] SADC 9 for the same point.

The Act's own access rule, with its two days' written notice, is set out in the guide on starting and stalling.

Two links carry the rest of the count from here: Answering a notice, for the thirty days that follow service, and Who pays, and how much, for the money the notice names and the silence that agrees to it.