The Dividing Fences Act 1961 (the Act) combines with local government by-laws to regulate the erection and maintenance of dividing fences in Western Australia. The Act provides a process for sharing costs between neighbours, the determination of boundaries and a mechanism for courts to deal with disputes over dividing fences. The Town does not administer the Act as it is independent civil legislation. The Act does not apply to retaining walls, fence height restrictions or encroachments.
A dividing fence is a ‘sufficient fence’ that separates the land of different owners, whether on the common boundary of adjoining lands or in a line other than the common boundary.
Any agreement, contract or covenant relating to dividing fences between owners of adjoining land overrides the provisions of the Act.
If you want to erect, repair, alter or remove a dividing fence, written notice must be provided to the neighbouring owner, which sets out:
- the boundary to be fenced;
- a proposal for fencing; and
- the kind of fence proposed to be constructed.
If owners of adjoining land are unable to reach an agreement after 21 days, either owner may make an application to the Magistrates Court. In making its order, the court will consider the type of fence typically constructed in the area, how the lands are used and any local laws prescribing the type of fence for your area.
Where the owners agree or a court orders the erection of a fence, the owners must fulfil their obligations within the specified time. If an owner does not fulfil their obligations within this time, the other owner may complete the work and recover half the costs from the owner in default by issuing a summons in the Magistrates Court.
You may also wish to check your Certificate of Title with Landgate to determine any covenants that relate to dividing fences on your property.
Do I Need Approval From the Town?
Development (Planning) approval is not required for dividing fences behind the street setback area as defined in the Residential Design Codes.
A building permit from the Town is required prior to the construction of a dividing fence where:
- Regardless of materials used, the fence height is greater than 1.8m high;
- If masonry is used and the height of the fence is greater than 500mm; and
- Where a BA20 or BA20A is required to carry out the work.
Please see the Building Forms & Documents page for a building permit application form and checklist.
- Dividing Fences Act Guide & FAQ – Department of Mines, Industry Regulation & Safety (the Building Commission)
- Legal Aid Information Sheet – Assistance and advice on dividing fence matters
- Citizens Advice Bureau Dividing Fences Fact Sheet – CAB can assist in mediating neighbour disputes
- Town of Mosman Park Fencing Local Law – Information on Sufficient Fences
- A Guide to Residential Fencing – Town’s Information Sheet
- Dividing Fences Act 1961 – Civil Legislation