Western Australia -- dividing fence -- legislation Hello all,
I've tried to read about this but I am still not 100% sure. Here's to the story:
Our neighbor block is about 1m higher than ours.
There's an existing fence, been there for many years (>30). There's also a double-brick retaining wall, not sure if that's important.
The existing fence is on our side and is between 1.6m to 1.8m high, so only 60-80cm on the neighbor side.
Obviously there are privacy concerns for us, furthermore the neighbor locates items near the fence that are not visually appealing, and at 60cm are pretty much in our line of sight.
Not looking to replace the existing fence, more looking at putting a fence next to the existing fence.
This would mean building a fence that is at least 2.5m high our side, and 1.5m high on the neighbor side.
At this height it should be enough to block line of sight into items on neighbor side, and we should have enough privacy (patio roof will also act as a screen).
I have been through the fencing act (WA) but could not find anything relating to maximum fence height, is that correct?
Is this even considered a dividing fence since there's already an existing [however insufficient] dividing fence?
Neighbor not inclined to participate, and I am also happy to bear the cost alone, that way I can put the fence I want, so not looking to force neighbor into sharing the cost. Any issues with that?
Thanks!
Dont know about the legal specifics of your questions however if your building another fence from scratch, wouldnt you just replace the other one?
Why, the neighbor could pull down the old fence and extend his property (un-officially) to the new fence and after "x" years claim adverse possession.
Your council is best port of call as there can be some local variations (but probably not in your instance).
I would think max height is 1.8m measured on the neighbour's side.
So even higher, and more private than you want.
The double brick retainer is a consideration if you want to build on top of it. A fence extension would give some wind sheer force I think.
You could probably insist the neighbour contributes to the cost since they would be liable for a 1.8m high fence.
But if you are happy to go it alone, why not.
Building on the low side of the existing retainer is probably easier from an engineering point of view.
Talk to your council and see what permissions, if any, you need to build 2.5m or 2.8m high.
... and be sure of the precise location of the boundary line
I agree with this (assuming things like the retaining wall are not impacted). If you are happy to bear the cost then one fence is better than two - and doesn't impinge on your usable space - and shouldn't adversely impact your neighbour. If you build a second fence then what happens in a couple of years when the old fence needs replacing?Originally Posted by Bart1080
Thank you all for your replies.
As for the council, I will give them a call to see if they can help, but this has been indirectly discussed in the past and the reply was something in the lines of "we try not to control dividing fences".
On the council website it also says that walls/fences behind the street setback area are regulated by The Dividing Fences Act 1961 and issues relating to dividing fences can be resolved a civil matter.
They do have a guide as to what a sufficient fence is. but it's quite ambiguous and makes repeat references to the Act.
This is why I am interested in understanding the Act/legislation as much as I can.
try to think about it in a common sense way (like a judge would in a court setting)
just because the act says your boundary fence can be 1.8m tall, I would STRONGLY think that means you can't come back 1m and just erect a wall to rival china's claiming its your property and you'll do what you want (pretty sure they're called spite fences). Also be aware guides and acts are pretty much left ambigous pure for the reason that no two circumstances are alike.
Remember if you don't sin, then Jesus died for nothing
My council website says if the fence is higher than 1.8m you need a building permit.
Or if it is masonry higher than 0.75m
Retaining walls higher than 500mm also require permission.
I always find it better to front their desk rather than ring.
From my reading of the Act and various links for regulations in WA it appears that local councils may set a minimum height for dividing fences, over 1.8m you need a permit, over 1.8m is also agreement by both parties.
Assuming the retaining wall is on their property then the fence is already the maximum 1.8m allowed before you need: 1/. Agreement between both parties for a taller fence 2/. A building permit.
Or, look into the regulations regarding building up land at the property boundary and the privacy issues.
https://www.joondalup.wa.gov.au/kb/r...requirements-2
It is important to ensure that privacy is maintained when adding fill to a property. In most instances a 1.8m dividing fence on top of a retaining wall is appropriate to prevent overlooking on an adjoining property. Where a retaining wall is not built next to a property boundary and is higher than 0.5m, an additional privacy screen of 1.6m may be required.
- Retaining wall is within 1.0m – 1.5m of an adjoining property boundary (not being a street boundary) and has a height of more than 0.5m from natural ground level. This applies to retaining walls associated with fill only
- Retaining walls and fill with a height of more than 0.5m from natural ground level that are within 7.5m of a property boundary and no screening is provided to prevent overlooking to an adjoining property.
Last edited by droog; 4th Jan 2023 at 12:56 PM. Reason: Additional info
Spent a bit more time last night reading the act, my take on this so far:
- Minimum 1.8m is from natural ground level, which is around street height where both blocks start the same, so 1.8m minimum should be on the neighbor side
- Retaining is not considered to be part of the fence, so 1.8m should not include the retaining wall
Basically this hints that our entire existing fence (across the entire boundary line with this neighbor) should not be considered a sufficient fence.
Talked to council about this as well. They said they are happy to help in regards to building requirements but they cannot help with issues relating to costs etc as these are civil matters. This is a start, I will update as soon as I know more.
So your block has been excavated but the retaining wall is on your neighbours property ?
I don't really know what was done because the house is from ~1970, but ...
The main road is sloping, and it's a hilly terrain, so I would assume they had to excavate (that's why we all almost share the ground level at the front).
This was quite common for the area and the building practice at that time.
All the blocks in this area are like that with some height differences between one block and another.
For example our block is 60cm higher than our neighbor on the other side.
I can't say for certain if the retaining is on their side, or on our side, or exactly on the boundary line.
Here's a riffraff description of the elevation:
On the first 8 meters after the setback there's a low wall (~50cm high, single brick) that acts as the fence, and also does some minimum retaining.
Following those 8m our block drops lower in height and the dividing wall becomes double brick and is a about 1m high.
Next to double brick wall they stuck some fibre-something-cement sheets as a fence (probably asbestos) that only extends 60cm over the retaining wall.
This goes for about 10m.
Then the neighbor block drops significantly in height and we are roughly on the same level, this is where the retaining wall ends.
The fibre-something-cement sheet fence continues all the way to the back of the block.
Towards the end it's only 1.4m high on our side.
Again all measurements are very "estimative" but it gives an idea on the block elevation.
Sounds like you need to determine the boundary line.
If the boundary is on top of the retaining wall then the discussion should be about building a 1.8m fence on top of the wall.
If the boundary is at the lower level then the discussion is regarding the over height fill and privacy issue as per post #9
Getting the right facts and delivering them in your argument for rectification will go a long way, they are two very different scenarios.
You are entitled to a 1.8m privacy fence, and that is 1.8m based on your neighbour's elevation (not yours) taken at any point along the boundary (some councils might say you can't do it in front of the house setback, which is why I said at the outset rules can vary with councils).
Doesn't matter about what the original predevelopment elevations were, or the current up and downness.
Something like this above the existing retaining wall might work as the new fence posts will take some of the sheer force off the existing retaining.
As posted in this thread:
replacing fence.... using it as a retaining wall (renovateforum.com)
Talk to your neighbour and see if they are happy with you building a new fence on top of the existing retainer.
You can then decide if you want to get the council and/or engineers involved, or just do it.
I doubt anything could be mounted on the existing retaining wall:
You can see in the photo above the retaining is made of double-brick wall. I am not an expert, and perhaps this could be done, but I would be very hesitant to core drill through this, or even mount anything on this retaining wall. If it cracks, that's going to be a massive job to fix.
Either way I think for me that's missing the point. It's a question of implementation, and there are more ambiguous questions that I am not clear about before we get to implementation.
If I build a fence next to the existing fence (shown in the photo above) within the boundaries of my block, then:
1. Would the new fence then become the de-facto dividing fence?
2. Can the neighbor later on claim that it was not done in agreement/consultation and therefore does not comply with the act as the act calls for agreement?
3. Can the neighbor argue that since the old fence has not been removed then they are entitled to a 1.8m to replace the old fence?
The act is not very specific about any of that.
In another part of the block the same neighbor decided to put a colorbond fence next to the existing fence. The "old" fence is 1.6m so definitely not sufficient.
We were not consulted in regards to the type of fence, the pattern of the fence, the colour of the panels, or anything else. Furthermore, visually we we have since then "enjoying" two type of fences.
Does that give me the right now to claim the fence is insufficient? Or does it make the new fence the de-facto dividing fence?
If it is now the de-facto fence, can I remove the old fence so I can now enjoy the new fence?
Who should pay for the removal? Just me or must he contribute?
Or should I claim that what they did was wrong to begin with (as we were not consulted) and therefore the new fence should be removed and a new fence should be put in place properly?
Again, this is where the act is not specific.
Although that was not my original question, it 1) makes me think about validity of what they previously did, 2) I don't want to repeat his mistakes so wanting to make sure I understand the Act before I act.
PS1 - we are not on good terms with our neighbor so I don't expect them to be happy to help with anything
PS2 - I did offer to replace the entire fence line/boundary and share the cost only if it will be done properly (remove asbestos fence, remove brick fence, new retaining etc) however they are not inclined to spend the money
Please post a photo of your side of the fence
Below is an image with some commentary.
To the left, where I am looking to put a new fence.
To the right, old fence and new fence overlay.
Seems a lot of effort for not much gain....
I'd probably run some light coloured shade cloth from the roof beam and/or fascia to a light frame at the fence, ending a few centimetres below the top, to remove the overlooking issue
Not doing that.
Have already been through a few permutation of screening, including shade cloth, timber lattice (you can see the mark on the post), and plants.
I would rather spend the money and have a permanent solution that I can control from my end.
the cost in removing that asbestos fence aint going to be anywhere near cheap and not being on good terms with your neighbours is going to make that VERY hard.
I would goto council and just apply a DA that you want a 2m or 2.4m fence with the specific reason that you want it on your land but mainly so you don't have to disturb the existing asbestos fence with removal.
I think you'd be pushing @@@@ up hill trying to argue that a 1.6m colourbond fence is "insufficient". with the easiest reply to your don't like the colour would be to paint it on your side to match in.
another option.... Just put your own fence in, alot of times with council its "easier to ask for forgiveness then permission" and the only person who will complain is your neighbour. If council come knocking just sight all the reasons above
unruly neighbor
don't want to disturb asbestos (safety safety safety)
its on my land at my cost.
also another option rather then core drilling the bricks would be to have some large U brackets made up that straddle the wall and bolt in from the sides and then weld the fence uprights to it.
Remember if you don't sin, then Jesus died for nothing
Shade cloth was out of your control?
I did not put the fence, and it is not on my property, so is it mine to paint over?
That would be ideal on my part, the only thing is that I would like is to get a council sign off before I build anything.
What side of the photo were you referring to?Shade cloth was out of your control?
I used a white shade cloth on the left side and it was still see through and I could see people moving. You could put a really dark one but it's ugly as.
If you were referring to the right side of the photo then for $500 I can get bamboo panels that will cover 10m. It will require less support, be more solid, and would look x10 better.
With a light coloured shade cloth, and the neighbour's view being into the relative darkness under your roof, they probably wouldn't be able to see you, except at night when lights are on under your roof. But I guess you are also trying to avoid seeing them from your side.I used a white shade cloth on the left side and it was still see through and I could see people moving.
Good luck
I doubt anything could be mounted on the existing retaining wallNo, maybe you missed the point?Either way I think for me that's missing the point.
Have a look at the photo I posted again. The new fence sits on top of the retaining wall. The posts that support the new fence go down the side of the wall into the ground (how far? a good way in technical speak). Maybe the posts are attached to the wall as well (not hard to do for masonry), but the bulk of the post support is below ground.
Frankly, whether the existing retaining wall is on the exact boundary is a moot point. You and your neighbour accept the existing boundary. I can almost guarantee if you get a surveyor out the new boundary will be different to the old, even if just because the newer equipment gives a different result to the older gear. It may be only 100mm different, but I have never seen a resurvey come up with the same results as old subdivisions.
The new fence posts would be on your side so easy in that respect. You don't have to worry about the asbestos fence on his side, it can stay (possibly not asbestos, what was known as Super 6 fencing and asbestos got phased out of that - only way to know for sure is to test it).
You're right. I saw that but still kinda miss the point.
Perhaps not exactly like for like because in our case the retaining is higher so potentially more leverage on the posts (side wind, someone leaning on the fence), but I'm sure something can be added to add extra support if needed.
That's good option that would potentially help bring the neighbor to play along. Thanks for highlighting that again.
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