If you own a dwelling, you have likely had to deal with your neighbours at some point. Sometimes the boundary of your property and the start of your neighbour’s property isn’t exactly defined. Other times, a neighbour may have a great big tree that blocks your view or something may arise of their side of the fence that cause issues to your side of the fence. If that’s the case, you and your neighbour will need to cooperate to resolve the issues.
I want to construct a fence – Do I have to let my neighbour know?
If you’re planning to start any fencing work, it’s essential to formally notify your neighbour about the works. The current legal framework requires that you and your neighbour share the costs of erecting and or maintain a boundary fence.
If you’re unable to reach agreement as to boundary fence works, then you will be required to serve a notice on your neighbour setting out the proposed works to be performed. Your neighbour will then have to respond to the notice and either agree or oppose what the boundary works. A boundary fence notice can include, but isn’t limited to, the proposed fence’s height, material, colour, cost and position.
If your neighbour disputes the boundary line that you propose for the fence, you may be required to provide a survey to define the boundary line.
But I’ve already begun the fencing works – Can I serve a notice to my neighbour now?
It’s essential to serve a notice to your neighbour before any work begins.
If fencing works have already begun without providing prior notice or your neighbour has not agreed, then your neighbour won’t be liable to pay any costs associated with the fence works.
The only event in which a notice is not required is for urgent fencing works being done on a dividing fence that has been destroyed or damaged, due to the safety and / or security risk caused due to the destroyed or damaged fence.
What can help me get my neighbour to agree to the fencing works?
It can be tough to maintain harmony with neighbours when it comes to works that they may be required to share the costs on. It will be difficult for your neighbour to dispute any proposed fencing works if you follow the correct legal framework and adhere with applicable planning and development policies.
If your proposed fence falls is a complying development, then you and your neighbour may incur further costs as you will be required to obtain planning or construction approval from the local council or a private certifier.
How do I know which policy applies to my proposed fence?
Most fences constructed on a residential land are exempt development. However, the construction of a fence which is not an exempt development will need planning or construction approval. This may occur in certain circumstances, such as the land adjoins heritage property, a conservation area, major roads in a business area or is in a foreshore area with flood-control.
Other than obtaining approvals, do the requirements for the fence change?
For fences to be exempt development, there are specific requirements that the fence needs to be within. For example, an exempt development fence has set maximum height and maximum width, be made with low-reflective materials and have a gate that does not open outwards. There are other requirements for the fence to be considered exempt development, so it is essential to know what the requirements are before commencing any works.
What if my neighbour doesn’t agree with my proposed fencing works?
If an agreement can’t be reached between you and your neighbour, there are alternative dispute resolution options available to resolve the disagreement, such as mediation.
Should the mediation not resolve the dispute, either you or your neighbour can apply to obtain an order from a Court or Tribunal to enforce an agreement, even if your neighbour maintains their disagreement.
I need to redefine my property, how can I do that?
If you need to redefine the boundaries of your property, you will need to get a survey prepared by a surveyor and will need to inform your neighbour of your intention to redefine the property boundaries. Your neighbour can engage a surveyor once you have informed them of your intentions, as long as they do so within a month of you letting them know. If there are significant differences between two different surveys, there are options available to you to apply for a determination with the Registrar General.
What do I do if I want my neighbour to cut their trees?
Neighbours can sometimes have trees that can block your view or have a plants, hedges or trees growing close to your boundary fence that could cause damage to your property.
At first instance you should approach your neighbour and ask them to trim or cut down the plants, hedges or trees that are causing you concern.
It should go without saying that you should not enter your neighbour’s property without their permission or attempt to remove or damage the tree yourself.
My neighbour doesn’t agree on cutting down their tree, where do I go from here?
If you and your neighbour can’t agree on tree-related issues, there are options available to you to resolve the issue. One of these options include applying to the Land and Environment Court NSW for an order that can resolve the dispute.
The Land and Environment Court NSW will consider factors such as the location, height, or value of the trees or whether interfering with the tree requires consent from other authorities and can make orders that prevent a neighbour’s trees from causing any damage to your property, prevent possible injuries to a person, or from obstructing a view from your property. This is particularly relevant if the encroaching plants, hedges, or trees obstruct water views.
At William Roger Stone Lawyers, we feel that it’s important that you are informed and know what may be required of you to help achieve a resolution between you and your neighbour. If you have a dispute with a neighbour or believe there is a possibility of a dispute occurring, contact our team to assist you with any neighbourhood boundary, fence or tree dispute.
Disclaimer: The information contained in this article is provided as general information only. It is not intended to be legal advice and it should not be used or relied on as legal advice.
