Objections to proposals and issues with costs

An objection to a fencing proposal may be to a specific item or it may be a general objection. It is not necessary to give any reasons for the objection [Fences Act 1975 (SA) s 6]. If a person receives either a notice or cross notice and believes the proposal is reasonable but cannot afford to pay, it is a good idea to negotiate payment with the neighbour, rather than objecting to the notice. A court will not reject a reasonable fencing proposal simply because a neighbour cannot afford it. No objection can be made to the work after the time allowed by law.

Going to court

If the neighbours cannot agree about any aspect of the fencing work, either owner can seek an order from the Magistrates Court. Generally, the matter will be heard in the Minor Civil Claims Division of the Magistrates Court, where parties represent themselves unless both agree to have lawyers present [see Magistrates Court Act 1991 (SA) s 38(4)].

A Form 2A Originating Application-Fences Act should be used, with a supporting affidavit. You must attach all notices and correspondence to the forms and the original must be retained if the Affidavit is filed on the CourtSA portal [Uniform Civil Rules 2020 (SA) r 31.10].

What powers does the court have?

Under section 12 of the Fences Act 1975 (SA) the court has extensive powers and can make determinations about:

What is an adequate fence?

Where there is a disagreement about the type of fence to be erected, the court will consider what the standard of good fencing in that particular area is and the purpose for which the adjoining lands are used [Fences Act 1975 (SA) s 12(8)].

If the proposed fence is more substantial than the usual type of fence in the area (for example, a 1.8 metre colorbond fence in an area where a 1.5 metre galvanized iron fence is normal), the court may allow the more substantial fence to be erected and order that the neighbour only pays half of the cost of the adequate fence.

Where residential blocks adjoin rural blocks of more than 0.8 hectares, an adequate fence is the cheaper of the rural and residential fencing options. A court is only likely to stop a particular fence being erected if there is a covenant on the title of the land prohibiting that type of fence. There is no clear guideline as to what type of fence will be permitted when two neighbours each propose equally meritorious fences. In most cases, the court will try to get the neighbours to reach agreement.

Disputes about costs

Although neighbours may agree about the type of fence to be erected they might still disagree about the sharing of the cost. Again, an order as to what each must pay can be obtained from the Magistrates Court. The court will assume that each will get equal benefit from the fence, but if it can be shown that one neighbour will get greater benefit, it can order that person to pay more or even all of the cost. If an owner cannot afford the amount awarded, the court can order payment by instalments. If the adjoining owner cannot be found, the court can make an order in that person's absence [Fences Act 1975 (SA) s 9].