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Fencing Adelaide

Guide 6 of 7 · Rows 3 to 5 of the count

Guide 6 of 7

After day thirty: when you can start building the fence

The count's first two rows decide whether the work may begin at all; the rows below them decide how long the proponent has before the adjoining owner may start, how the far side of the boundary is entered, and how long the whole agreement holds.

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 two ways to be entitled to proceed

Section 8(1) of the Fences Act 1975 (SA) ties the right to begin to the notice. Where a notice has been served in accordance with the Act, the proponent may proceed with the fencing work in one of two cases: after the thirty days from the date of service have expired, if no cross-notice was served in that period; or, where a cross-notice was served, after agreement has been reached on the proposals and counter-proposals, or after the differences have been adjudicated on by the court. Except as otherwise provided in the Act, section 8(2) leaves no contribution recoverable for work performed before one of them opens.

The Law Handbook states the practical version: unless the neighbour has agreed to the proposal, the full thirty days have to pass before the work starts, and an owner who starts earlier loses the right to recover costs from the neighbour. It pairs the point with the warning that a procedure not properly followed leaves the neighbour with no duty to contribute.

When next door may start the work

The third row of the count is the one with two cells drawn empty beside it. Section 8(3) gives the proponent twenty-eight days after the day the entitlement in subsection (1) arises to proceed with the work, or such longer period as the parties agree or the court fixes; if the proponent does not, the adjoining owner may proceed with the fencing work. The Law Handbook states the same window as the answer to what happens when the work is not commenced or not completed: after the person who made the proposal fails to start, or stops for more than twenty-eight days, the adjoining owner can go ahead and recover what the original agreement made payable.

Section 8(4) covers the work that has already begun. Where either party discontinues the fencing work for more than twenty-eight days before it is finished, the other party may take it over and complete it.

The four months

The fifth row is ruled in months because the Act changes scale there. Where neither the proponent nor the adjoining owner proceeds with the work for longer than the prescribed period, or the work is discontinued for such a period, the agreement lapses as to the part of the work that remains to be performed. Section 8(6) fixes the prescribed period: whatever the two owners agreed, or the court ordered, and where there is neither, four months. The Law Handbook adds the plain reading: with no agreed or ordered time frame, the work is to be completed within four months.

Lapsing is not the same as losing everything. What the Act lapses is the agreement, and only as to the part of the work that then remains to be performed, which is why the four months are drawn on their own scale rather than folded into the days.

Two days before the far side of the fence

The Act's entry power is section 18. Subject to the subsection below it and to any agreement or court order, a person may, for the purpose of carrying out authorised fencing work, enter on the land at any reasonable time with the vehicles or equipment reasonably needed for the work, and do anything reasonably required for it. The limit is written into subsection (2): except in an emergency, the power is not exercised unless, at least two days before the land is entered, written notice of the intended entry has been served on the owner of the land. Subsection (3) adds the manner: the powers are to be exercised as far as reasonably practicable without injury to the land or property of any other person.

Section 18(4) defines the work that carries the entry power. Authorised fencing work means one of three things:

  • (a)

    fencing work in respect of which agreement has been reached under the Act

  • (b)

    fencing work authorised in accordance with the order of a court

  • (c)

    fencing work otherwise authorised by the Act

Two metres of scrub

Section 22 has its own measurement. A person who proposes to perform fencing work on land may clear all scrub up to a width of two metres on each side of the fence, or of the line of the proposed fence, and the cost of clearing that scrub is treated as part of the cost of the fencing work. The same section lets the Governor declare by regulation that it does not apply to land, or a kind of land, specified in the regulation.

A fence that sits off the boundary

One more edge worth knowing before the work starts: a fence built away from the true boundary buys no land. Where a dividing fence is erected otherwise than on the boundary of contiguous land, whether under an agreement or a court order, neither adjoining owner is taken, by occupying the land enclosed by the fence, to be in adverse possession of the other's land so as to acquire title to it against the other's title or interest.

The chain, kept in days

One run of the clocks, as an example

This is an example, and it is written in the Act's own way of counting, from the events rather than from a calendar.

  1. Day 0

    The notice is served: Form 1 for a new fence or Form 2 for work on one already standing.

  2. Day 30

    The count's first thirty days end. With no cross-notice served in them, the proponent is entitled to proceed from this point, which is what the row above calls E.

  3. E, plus 28

    Twenty-eight days from that entitlement, unless a longer period is agreed or fixed by the court. Past the last of them, the adjoining owner may start the work instead.

  4. W minus 2

    At least two days before the work day, W, written notice of the intended entry is served on the owner of the land, unless the case is an emergency.

  5. Four months

    The prescribed period, where nothing else is agreed or ordered. If neither owner proceeds, or the work stops for longer, the agreement lapses as to what remains.

Where a cross-notice is served, the same chain simply begins later: the entitlement comes after agreement or after the court's decision, and the twenty-eight days run from there. No calendar date is given for any of these steps, because the Act counts each of them from service, from the entitlement, or from the work day itself.

Two guides carry the neighbouring questions. Answering a notice sets out the thirty days that end at E. Who pays, and how much works through the money the notice names, and what happens to it when the work stalls.