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Fencing Adelaide

Guide 7 of 7 · Row 6 of the count

Guide 7 of 7

The fence that will not wait

The last row of the count is the one with no count on it. Where a dividing fence has been damaged or destroyed and there is an urgent need to repair or restore it, either adjoining owner may do the work without notice to the other and recover a share of the cost afterwards. What that share is, and when it is capped, is the whole of this page.

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 rule in section 16(1)

The section's own opening sets two conditions before any money is recoverable: a dividing fence that is damaged or destroyed, and an urgent need to repair or restore it. Where those are met, either of the adjoining owners may carry out the fencing work without notice to the other, and may recover from the other one of two amounts: half of the cost of the fencing work, or the amount that the other owner would be liable to contribute if the dividing fence were to be replaced, whichever is the lesser.

The Law Handbook's urgent-repairs section carries the same rule in plain words: where a fence has been damaged or destroyed and the repair cannot wait, one owner may go ahead without telling the other, and the sum that owner can recover is the smaller of half the cost and what the neighbour would have owed had the notice procedure been followed.

Notice what the two conditions do not say. The test is the state of the fence and the urgency of the need to repair or restore it, and that is how the Act puts it.

The row beside it

Row 1 of the count is the planned fence, and the difference between the two rows is what this guide exists to show. A planned fence runs on paper before it runs on the ground: a notice in Form 1 or Form 2 is served, thirty days follow, and a neighbour who serves no cross-notice is taken to have agreed to the proposal, including the amount of money each must pay. The urgent repair skips the paper and the wait, which is the point of it, and it gives up the certainty the paper would have bought: the recovery is not whatever the repair cost, but the lesser of the two amounts section 16(1) names.

Row 1, the planned fence

  • a notice in Form 1 or Form 2 is served first
  • thirty days follow, and silence in them is agreement
  • silence binds the neighbour to the amount the notice names
  • the work waits for the count to end, on pain of losing the share

Sections 5, 7 and 8 of the Fences Act 1975 (SA), and the Law Handbook's sharing chapter.

Row 6, the urgent repair

  • no notice, and no wait, before the work
  • either owner may carry it out
  • what is recoverable is capped: half the cost, or the replacement share, whichever is less
  • urgency is the condition, and it is about the fence, not the calendar

Section 16(1) of the Fences Act 1975 (SA).

Damage someone caused

The section has a second route, and it runs against whoever caused the damage rather than against the neighbour. Where a fence is damaged or destroyed as a result of a wrongful act or default on the part of any person, an adjoining owner who has properly incurred cost or expense in repairing or restoring it may recover that cost or expense from that person as a debt, whether the repair was done under the Act or otherwise. And the mirror of it: an adjoining owner cannot recover contribution under the Act for fencing work that consists in repairing damage resulting from that owner's own wrongful act or default. The two subsections divide the field between the person who caused the damage and the neighbour who did not.

What still applies to an urgent repair

The skipped steps are the notice and the wait; the rest of the Act is not switched off. The fence itself is a joint asset of the two properties, and the neighbour remains a joint owner of it even where they never paid for a fence. Entry onto the other side of the boundary still follows the Act's access rule, which allows entry for authorised fencing work on at least two days' written notice, except in an emergency. And if the two owners disagree about the money after the repair is done, the dispute route is the one the count's court exit carries, where an owner can apply for an order for payment of an amount claimed.

What this page does not cover

Section 16 is about notice and money. It is not a method statement: what a repair involves, and who is competent to carry it out, is a separate question, and the answer to it comes from the trade and the site rather than from a fence statute. What this page sets out is who may act, what they may recover, and what the Act caps that recovery at.

Two guides carry the rest of the count from this row. Answering a notice sets out the thirty days this row skips and the agreement it gives up. Starting, and stalling sets out the access rule and the twenty-eight days that follow a planned fence.