# Forum Home Renovation Landscaping, Gardening & Outdoors  Another dividing fence issue.

## Tubby2

Jeez I dunno, These people that have nice neighbors that all agree on a fence. I wish!  
Looking for law/acts/regulations/???? on fence issues. I've searched these forums and all the related links but cant find concrete evidence. 
Can I just build what ever Fence I want on my property (50mm in from boundary) and pay for the whole lot without giving a rats about what my neighbor wants?  
I drew a little mud map to help with my explanation. 
I have excavated my backyard to a depth of 800mm and retained it.
My neighbor has backfilled his yard to a depth of 1000mm and retained it. He now wants to put the fence on top of his retaining wall which would be about 3.6m above our yard level effectively blocking out  a bucket load of sunlight because our backyard faces a northerly direction. 
When we bought the block of land I noted the 1m easment on my neighbors side being for stormwater drain and assumed that nothing would be built on it. My neighbor has been approved by council to build a retaining wall on the easment although the original landscape drawings that were sent to asking if we had any objections showed the retaining wall 1m in from the boundary. 
Anyway as I said above I want to know whether I can just go ahead a build a fence where I want  50mm-100mm in from the boundary on my side and pay for it myself. 
I've heard/read people saying they did it or just go ahead and do what you want but I'm looking for council/statute info. I'm in Baulkham Hill Shire Council in Sydney but from what I understand the Dividing fences act is nationwide where councils add a few extra things in. 
Cheers 
Opps, Sorry. I just looked at the pic and realised that I didnt lable it enough.
The diagonal line is the Natural ground level before excavation.
I have showed where we have cut out and the neighbours have filled.

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## Tubby2

I did find this little nugget of info on a WA info sheet 
********************* _Fences Constructed Adjacent to a Dividing Fence_
Situations may arise where a property owner wishes to construct a
fence on his/her own land adjacent to an existing dividing fence.
The Act does not prevent this second fence from being erected,
however, it is recommended that you contact your local government
to find out whether it has any restrictions on structures of this type. Note: Your adjoining owner may still claim a half contribution for the
existing dividing fence, even where you erect a second fence on your
property adjacent to it. ********************************
I suppose the risk I run is that the neighbour could go ahead a build a fence on the boundary and ask for half of the cost.
I'm hoping that if I build a fence on my side then firstly my neighbour will not bother about building a fence on the boudary and just make do 
or
is unable to build a fence on the boundary because the gap between my fence and his retaining wall will be about 200mm.

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## Tubby2

And another piece of info from the same WA FAQ's sheet 
*********************************
You do not need an agreement if you want to erect the fence entirely
at your own expense, and forego any right to contribution under the
Act. The fence you erect must still be a sufficient fence (see
question 1.2 for what constitutes a sufficient fence).
If you decide to erect a fence at your own expense, it is recommended
that you give the adjoining owner the details of the proposal as a
courtesy, and to enable them to make arrangements to protect their
property or animals, etc. during the construction process. 
A decision to erect a fence entirely at your own cost does not give you the right
to enter the adjoining owners property without their permission
during the erection of the fence.
*************************************

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## snowyskiesau

Here's the relevant act for NSW. [Dividing Fences Act 1991] 
A few years back, my next door neighbour decided the fence needed replacing and being unable to contact my landlord, went ahead and had the new fence built. When he finally was able to contact the landlord, he found out that the landlord was not liable to pay for half as he had not been consulted.  
Didn't make for a happy neighbour.

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## Pheonix

Google: Dividing Fences Act :might bring you some results. :2thumbsup:

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## Tubby2

> Google: Dividing Fences Act :might bring you some results.

  I've ben googling all morning, I'm getting dizzy 
And another piece of info from Baulkham Hills Shire council FAQ's 
**************
Side and rear boundary fencing shall be a maximum of 1.8 metres. 
The height of the fence is to be determined from the level of either the adjacent footpath (made or unmade), or that of the
natural ground level within the premises, whichever is the greater.
************ 
I'm finding a lot of info that indicates that the fence really shouldn't be built on top of my neighbors retaining wall but nothing really saying I am to build a fence where I want if I'm willing to pay the full amount. 
Theres heaps of info on what happens when there is no agreement with regards to mediators and court proceedings but I am assuming that is much to do about dividing costs as it is about the physical fence.

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## Sturdee

In Victoria the fencing act states what type of fence is acceptable and that it must be on the boundary between the properties.  
Within residential land this is normally a 1.8m timber paling fence. Prior written approval from the other party must be obtained or a Magistrate Court's fencing order be obtained, else the other party doesn't have to pay for the cost. Anything taller or different must be with agreement of the adjoining owner. 
To build any other structure, being a secondary internal fence, close to the fence line requires Council approval, being a planning permit and a building permit. At that stage you can lodge an objection to the issue of such permit.  
So firstly discuss it with your neighbour and if that fails talk to your local council. Ofcourse it could be different in NSW. 
Peter.

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## dazzler

Did you pair discuss any of this while you were excavating away  :Confused:

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## manoftalent

"Side and rear boundary fencing shall be a maximum of 1.8 metres. 
The height of the fence is to be determined from the level of either the adjacent footpath (made or unmade), or that of the
natural ground level within the premises, whichever is the greater." 
 what you need to find out is the acctual level @ ground zero between the two properties and take into account the height of the retaining wall when measuring for a fence  
-----------his land height 
street level======= ( 1.8 mtres should be measured from here )  
your land height --------  
he may end up with a one mtr fence .....and you a 2.8 mtr fence ....either way if its not tall enough he is going to be peering into your back yard....

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## Tubby2

> So firstly discuss it with your neighbour and if that fails talk to your local council. Ofcourse it could be different in NSW.

  I did, he wants a fence ontop of his retaining wall. So I'd be staring at a 3.6m high fence in  my backyard.   

> Did you pair discuss any of this while you were excavating away

  Yup!    

> what you need to find out is the actual level @ ground zero between the two properties and take into account the height of the retaining wall when measuring for a fence ......
> he may end up with a one mtr fence .....and you a 2.8 mtr fence ....either way if its not tall enough he is going to be peering into your back yard....

  Its pretty easy to find natural ground level as there is a footpath running the length of both our properties. 
I'm ok with a 2.6m high fence. My retained 800mm and the 1800mm fence, its a bit high but I'll live with it. What I really dont want is the fence ontop of his retaining wall which will make the fence 3.6m high when standing in my backyard. 
I dont really have a problem with the neighbours peering into my backyard as they have a single storey house with all the entertaining area to the side of the house a nothing but windows to the rear. So unless they wander down near the bouadary they will never see over. 
Where I'm at, at the moment is I cant be bothered talking to him anymore about it, we will not reach an agreemeant. I'm happy to pay the whole lot if I get what I want. I wondering if theres anything stoping me getting someone in to build the fence tomorrow without any further consultation with the neighbours.   

> Prior written approval from the other party must be obtained or a Magistrate Court's fencing order be obtained, else the other party doesn't have to pay for the cost. Anything taller or different must be with agreement of the adjoining owner.

  I have read this in several places and I take it to mean that I only need agreemeant to build the fence with the neighbour if I plan to get him to pay half.   

> To build any other structure, being a secondary internal fence, close to the fence line requires Council approval, being a planning permit and a building permit. At that stage you can lodge an objection to the issue of such permit.

  Havent read about this but the risk is he goes ahead and builds a fence himself ontop of his retaining wall at his own cost seeing as that it's a secondary fence on his side of the boundary. Which I still end up with his fence 1m taller the mine and about 200mm behind it. 
So, If I'm willing to pay the whole lot and I'm not concerned about 'getting on' with the neighbours in the future (infact they are pretty annoying so it would only be a benefit if they didnt talk to us anymore) can I build a fence on the boundry at my expense without further consultation? 
I think I may end up going into council next week and having a chat to them. 
Cheers

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## dan76n

I suggest you speak to council. I would even try and organise someone to come out to your house and have a look at what your talking about. I wouldnt go putting a fence up on your property at your own expense in the risk your neighbour may do the same on his side.

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## Sturdee

> So, If I'm willing to pay the whole lot and I'm not concerned about 'getting on' with the neighbours in the future can I build a fence on the boundry at my expense without further consultation?

  Yes, provided it is a standard fence, but it would be better to approach the magistrate court for an order to fence as then the law is right behind you. Go and see the Clerk of Courts at your local Magistrate Court.   

> Havent read about this but the risk is he goes ahead and builds a fence himself ontop of his retaining wall at his own cost seeing as that it's a secondary fence on his side of the boundary. Which I still end up with his fence 1m taller the mine and about 200mm behind it.

  As previously said for that he needs council permits at which stage you can object to the issue on the grounds that it materially affects your amenities and also there are height regulations to consider. 
So go and see your local Clerk of Courts and the Council, both would be helpfull in situations like this, else go and see you local councillor.  
Peter.

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## bsrlee

Parents had a fence problem with a D***h**d neighbour a few years ago. They were referred to a 'Neighbourhood Justice Centre' by the Clerk of the Court - basically an 'after hours' Local Court. The decision ended up being a fence that was half way between the existing fence height & what the dingbat neighbour was demanding. Dad had mis-measured the side fence so he ended up with a fence that was a foot (300mm) or so higher than it need have been. 
So if you can live with a 1.8m fence based on the original ground level you should not have any problem as the adjudicator will NOT allow a fence over the maximum. Take a photo of any existing fence, measure it 'accurately' at its lowest point to the ground & take that with you to any hearing. 
I'd also be taking a copy of the developement application to the local council and making a formal complaint that the retaining wall was not built in accordance with the application & demand that the council take action to make D.H. demolish & rebuild in accordance with the plan. If the Council don't want to know - I think your local council has a reputation for actually doing something - then a letter to the Ombudsman or ICAC about possible kickbacks might get some action. Also might not make you popular, but do you want to live in a dungeon?

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## Tubby2

Well a quick trip to council answered my question. 
I spoke to a building inspector who said that in the end... I do not need my neighbours permission or approval to build a fence within council regulations. 
So a 1800mm timber lapped and capped fence on the boundary on natural ground lavel is fine. 
I thanked him and he wished me luck in getting money out of my neighbours for a fence they dont want. 
Thanks all

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