The Dividing Fences Act 1961 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. It 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.
A ‘sufficient fence’ is:
• a fence prescribed by a local government local law as the minimum standard of fencing in that locality;
• a fence of any standard agreed upon by adjoining owners provided that it does not fall below the standard prescribed by the relevant local government law;
• a sufficient fence that is ordinarily capable of resisting the trespass of cattle and sheep; or
• a fence determined by a magistrate in a magistrates' court to be a sufficient fence.
Please note: A fence which accords with the last two points above is only a sufficient fence where no local law or agreement is made.
If you erect a dividing fence of a higher standard than a sufficient fence without first obtaining the agreement of the adjoining owner, you may only claim half the cost of erecting and maintaining a sufficient fence as defined above.
The Act does not bind the Crown, so where the adjoining land is owned by the Commonwealth, State or local government and is used for public purposes, the Crown is not required to contribute to the costs of erecting or maintaining the fence.
Any agreement, contract or covenant relating to dividing fences between owners of adjoining land overrides the provisions of the Act.
Erecting a new fence between developed blocks
If you want to erect a dividing fence, a 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.
You may also wish to check your Certificate of Title with Landgate to determine any covenants that relate to dividing fences on your property.
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 (or within three months if no time is specified). 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.
Phone: 1300 720 715
Fax: (08) 9476 1333
For enquiries in relation to height or type of fencing that may be used please refer to the Town's Local Law relating to Fencing.