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Fencing Adelaide

Guide 4 of 7 · Row 0 and row 1 of the count

Guide 4 of 7

Half of an adequate fence

The Act does not make a neighbour pay half of the fence you would like; it makes them pay half of the fence the Act calls adequate, with the local standard doing the sizing. Where the notice names an amount and nothing is said back in thirty days, the neighbour is normally bound to that amount.

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 starting point: nothing is owed until something makes it owed

The Law Handbook's sharing chapter opens with the default: a neighbour owes nothing towards fencing work unless they agreed to pay, the Act's procedure was followed, or urgent repairs are needed. So, unless the neighbours agree or the repair is urgent, the money question turns on the notice question, which is why this guide's grid lights row 1 as well as row 0.

The notice names the money

Two of Form 1's six fields are the cost and the share sought. Field (c) is an estimate of the cost of erecting the proposed fence, and field (d) is the amount the proponent wants to recover from the adjoining owner towards that cost. Silence then does the work: the Law Handbook says an owner who serves no written objection in the thirty days is deemed to have agreed, and both neighbours are normally held to the notice's terms, including the amount of money each must pay.

Form 2, for work on a fence that already stands, carries the same pair in its own fields: the cost of the proposed work at (b), and the amount sought at (c).

Equal benefit, unless the proof says otherwise

Section 12(6) of the Act is the rule behind the fifty-fifty habit. A dispute about the proportions in which the cost is to be borne is decided according to the benefit each adjoining owner derives from the work, and in the absence of proof to the contrary the Act presumes that the two derive equal benefit. The Law Handbook says the same in its own register: there is no strict formula the courts use, and as a general rule each neighbour is assumed to receive an equal benefit from the fence and so to contribute equally to the cost.

Equal is a presumption, not a ceiling. The Law Handbook's disputes chapter says the court will assume equal benefit but may order one side to pay more, or even the whole cost, where it can be shown that neighbour gets the greater benefit.

What "adequate" means here

Section 12(8) defines the fence the contribution is measured against. In the ordinary case, item (a) says an adequate fence is one conforming with the general standards of good fencing in the locality where the work is done, and adequate for the purposes of the owner from whom the contribution is sought. Item (b) adds that a fence can still be adequate where it is discontinuous, if vegetation, a watercourse, a ditch or another geographical configuration serves as the fence or part of it. The Law Handbook's account of the same test is that the court considers what counts as good fencing in that area and what the adjoining lands are used for.

Choosing better than adequate

Section 12(7) is the provision for a fence better than adequate. Where the work is the erection of an adequate fence, or of a fence of better quality than adequate, or the conversion of an existing fence into one of those, and the adjoining owners have not agreed otherwise, the contribution the neighbour owes is one-half of the minimum cost of erecting an adequate fence, or of converting the existing fence into one. In the Law Handbook's words, the owner who wants the more expensive option pays the difference between the two.

The taller fence, worked through section 12(7)

The Law Handbook gives an example on its disputes page: a fence that is more substantial than the usual fence in the area, such as a 1.8 metre Colorbond fence where 1.5 metre galvanised iron is the normal fence, may still be allowed by the court, with the neighbour ordered to pay half of the cost of the adequate fence only.

Read with section 12(7), the division in that example does not depend on any price being named: the neighbour's share is one-half of the minimum cost of erecting the adequate fence, and everything above that line sits with the owner who wants it. Nobody in the example has to know the price of either fence to see who carries which part.

Rural land next door

Section 12(8)(aa) makes the comparison for a fence dividing land of not less than 0.8 hectare in area used for primary production from land used for residential or other purposes: the adequate fence is the fence adequate for the primary production purposes or the fence adequate for the residential or other purposes, whichever would cost less. The Law Handbook describes this as the cheaper of the rural and residential options, though it puts the threshold as more than 0.8 hectares, where the Act says not less than 0.8 hectare. The Act defines primary production purposes to take in agriculture, pasturage, horticulture, viticulture, apiculture, poultry farming, dairy farming, forestry, and any other activity of cultivating soils, gathering crops, rearing livestock, or propagating and harvesting fish or other aquatic organisms.

What the cost includes

The Act defines the cost of fencing work in section 4, and its definition is generous in three directions. It includes the cost of any survey that is reasonably required for the purposes of the fencing work, the cost of any work reasonably required to facilitate the fencing work, and, where an adjoining owner has done, or proposes to do, any of the work personally, it includes a reasonable allowance for that owner's labour. A survey therefore shares in the money question, and so does a weekend spent on the fence by the owner who built it.

The landlord, the tenant, and the years left on the lease

Subject to any agreement between the landlord and the tenant, section 14 lets a landlord recover, as a debt, contribution towards a fencing liability incurred during a tenancy, for fences dividing the land the tenant occupies from adjoining owners' land. The contribution is then determined on the Act's own principles, which are written to the length of the tenancy left. Where less than three years remained at the time of the work, the tenant pays nothing. With at least three years but less than six remaining, the tenant's contribution is one-quarter of the landlord's liability. With at least six but less than twelve years remaining, it is one-half. And with at least twelve years remaining, the landlord may recover a sum sufficient to satisfy the whole of the liability from the tenant.

Section 14(4) makes it a defence to the landlord's action that all three of these hold: that the fencing work was not required as a result of any act or default of the tenant, that the tenant was not given an adequate opportunity to make representations about the proposals and counter-proposals before they became binding, or was given the chance and objected in writing a reasonable time before that, and that the tenant was not bound by an order of a court to contribute before the work began.

Write it down, and do not let it stall

The Law Handbook's advice to two neighbours who agree is to put the agreement in writing and sign it, even though an agreement takes them outside the Act's procedure. The same chapter says that where the person who started the proposal does not begin the work, or stops it, for more than twenty-eight days, the adjoining owner may proceed with it and recover what the original agreement made payable.

Two related guides carry the next questions. Starting, and stalling sets out that twenty-eight days and the four months beside it. After a storm sets out the urgent case, where the recoverable amount is the lesser of half the cost and what the neighbour would have owed under the notice procedure. And where the two sides cannot agree at all, A dispute in court sets out what the Magistrates Court can order.