Dividing fences in SA when you build: the Fences Act

Why does building a house involve the dividing fence?

The Law Handbook’s page on building work lists fences among the related legal requirements, and says: “Fencing is often not considered when building a new home or renovating. However, it is important to understand the legal processes involved in replacing a fence”. Consumer and Business Services’ January 2025 consumer guide says to “Consider the cost of fencing when working out a budget for building a new home.”

Under section 4 of the Fences Act 1975 (SA), “fencing work means the erection of a new dividing fence, or replacement, repair or maintenance work in relation to an existing dividing fence”, and a dividing fence is “a fence dividing contiguous land of adjoining owners”.

The Handbook also states: “There is no general legal obligation to fence land or to repair an existing fence”, and that the Act “provides a procedure for resolving fencing disputes and obtaining contributions from neighbours who benefit from a fence.”

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Is consent needed to remove a boundary fence for building work?

The Law Handbook says that even an owner prepared to pay for a new fence “should still get the permission of your neighbour to remove any existing fence. This is because once a fence is erected, it is jointly owned by both neighbours and should not be damaged or removed without the consent of the other”, citing Matthews v Christie [2001] SADC 9. Its cost-sharing page adds that an owner intending to remove or alter an existing fence “should have your neighbour’s permission or, failing that, a court order.”

A building wall is treated differently. The Handbook states: “A wall to a building that is located on the boundary is not a fence, even though it may serve as one. A boundary wall remains the sole property of the building owner and any dispute about it cannot be dealt with under the Fences Act procedure.”

Entering the neighbour’s land is a separate question. Section 18 of the Act allows entry for authorised fencing work but, except in an emergency, only after written notice of the intended entry has been served “at least two days before the land is entered”.

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What is a fence notice in SA?

Where neighbours agree on the work and the cost, the Handbook says they “do not have to follow the procedure under the Fences Act 1975 (SA)”, but that it is wise to make a written agreement signed by both. Where they do not agree, it calls the notice procedure “the only legal method if you want to erect, repair or replace a boundary fence and you want your neighbour to contribute to the cost but they do not agree.”

For a new fence, section 5(2) requires a notice in Form No 1 stating the length and position of the proposed fence; its nature; an estimate of its cost; the amount sought from the adjoining owner; where the fence line encroaches into the adjoining owner’s land, whether compensation for loss of occupation is proposed and how much; and the name and address of any contractor or other person who will erect it.

For replacement, repair or maintenance of an existing fence, section 5(4) requires a notice in Form No 2 stating the nature and location of the work, its cost, the amount sought from the adjoining owner, and the name and address of any contractor or other person who will do it.

Section 19 requires a notice to be signed and served “personally or by registered post”. The Fences and the Law booklet says leaving it in a mailbox, putting it under the door or sending it by ordinary post “does not count, even if your neighbour actually gets it.”

How long does a neighbour have to respond to a fencing notice?

Thirty days. Under section 6(1), an adjoining owner who objects to any of the proposals “may, within thirty days after the service of the notice, serve a cross-notice upon the proponent”, in Form No 3. Section 6(4) says it is not necessary to give a reason for an objection. Where the cross-notice contains counter-proposals, the proponent has thirty days to serve a written objection to them (section 6(3)).

Section 7 provides that a person who does not object in accordance with the Act “shall be deemed to have agreed to the proposal or counter-proposal.”

Under section 8(1), the proponent may proceed after thirty days if no cross-notice is served, or, if one is, after agreement or a court decision. Section 8(2) provides that no contribution is recoverable for work done before that point, except as otherwise provided in the Act. The Handbook describes Jackson and Jackson v Takacs, where owners who built without waiting the thirty days “were not able to recover any money for the fence”.

Section 16(1), which applies “Subject to this section”, is one exception: where a dividing fence is damaged or destroyed and there is an urgent need to repair it, either owner may do the work without notice and recover the lesser of half the cost or the amount the other would contribute if the fence were replaced. Section 16(3) excludes recovery for fencing work that repairs damage resulting from the claimant’s own wrongful act or default.

How is the cost of a dividing fence shared?

The Handbook states that a neighbour “has no legal obligation to contribute to the cost of fencing work unless they have agreed to pay or the Fences Act 1975 (SA) procedure has been followed, or urgent repairs are required.”

Where the court decides a dispute, section 12(6) presumes, “in the absence of proof to the contrary”, that adjoining owners derive equal benefit from the fencing work. Section 12(7) addresses erecting an adequate or better fence, or converting an existing fence into one. Without agreement, the contribution is “one-half of the minimum cost of erecting an adequate fence, or converting the existing fence into an adequate fence”.

Outside the primary production case in section 12(8)(aa), section 12(8)(a) provides that an adequate fence is one that “conforms with general standards of good fencing existing in the locality” and is adequate for the purposes of the owner from whom contribution is sought. The Handbook says an owner who wants “a better than adequate” fence, where the neighbour is happy with an adequate one, “will have to pay the difference in cost between the two options.”

Under section 4, cost can include “the cost of any survey that is reasonably required”, any work reasonably required to facilitate the fencing work, and a reasonable allowance for an owner’s own labour.

What happens if the neighbour objects to the fence?

The Fences and the Law booklet lists four options where the procedure does not produce agreement: negotiate with the adjoining owner, contact a community mediation service, apply to the local Magistrates Court for a decision, or not proceed with the fencing work.

The Handbook says either owner can seek an order from the Magistrates Court and that, generally, the matter is heard in the Minor Civil Claims Division, “where parties represent themselves unless both agree to have lawyers present”.

Section 12(2) gives the court a wide set of powers, including decisions on whether a fence is erected, its nature and line, who does the work and when, entry onto land, removal of a fence not on the proper boundary, and the cost and the proportions in which it is borne.

On objections based on cost, the Handbook says: “A court will not reject a reasonable fencing proposal simply because a neighbour cannot afford it.” It also says the court can order payment by instalments. For free legal advice, the Handbook gives the Legal Services Commission’s number, 1300 366 424.

Does a new fence need council approval, and where does it go?

The Handbook states that “Brick (masonry) fences over one metre high and all other fences over 2.1 metres high (except post and wire fences) will generally require development approval from the local council”, and that fences near road intersections and around swimming pools generally need approval too. It adds: “Some areas have special regulations, so check with your council before starting any work.” Consumer and Business Services’ January 2025 guide states that council approval “is usually needed to build a masonry fence higher than one metre, or any other type of fence higher than two metres, measured from the lower side.” The council confirms what applies at a particular address.

On position, the Handbook says that “Normally, a dividing fence should be erected on the boundary”, and that “Generally, if a fence is not on the proper boundary, it does not change the ownership rights to the land.”

A retaining wall is also treated separately. The booklet states that while a retaining wall can serve as the footing for a fence, “the wall itself is not considered to be a fence and is covered by different laws.”

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