Last updated: January 2020
My fence was damaged in the bushfires. Who pays for repairing or replacing my fence?
If your fence was damaged or destroyed because of a bushfire, you and your neighbour may be able to make a claim against the person who caused the bushfire.
If you do not know the identity of the person who caused the bushfire, you and your neighbour should consider whether fencing works should be undertaken yourselves and make an insurance claim.
You should speak with your neighbour and come to an agreement, aiming to agree on:
- the need to repair or replace the fence
- the type of fence you wish to have (including details like height, material and colour)
- the budget for repairing or replacing the fence
- the amount each of you will pay
- the contractor or company you should use to repair or replace the fence
- when the fence should be repaired or replaced
- who will be responsible for organising the replacement or repairs
- the placement of the rails and framing
- where the fence is to be located (this will usually be the same place the old fence was located).
A fencing work agreement template is available on Fences and the Law booklet published by the Legal Services Commission.
What to do if you and your neighbour agree
Record your agreement about each of the above points a template for an agreement can be found on Fences and the Law booklet published by the Legal Services Commission.
Contacting Community Mediation
If you and your neighbour cannot agree on an issue relating to the repair or replacement of your fence, you can contact the Uniting Communities Mediation Centre 83421800 firstname.lastname@example.org for advice on resolving the situation.
Serving a fencing notice
Whilst it is desirable to approach your neighbour in the first instance if you do not feel comfortable approaching your neighbour, or if you cannot agree on any issue relating to the repair or replacement of your fence, you may serve your neighbour with a notice pursuant to the Fences Act 1975 regarding the proposed fence.
For example, you may serve notice if your fence has been completely destroyed by a bushfire, or damaged by a bushfire but still able to be repaired.
Template for the forms can be found on Fences and the Law booklet published by the Legal Services Commission
Fault of your neighbour
If your fence was destroyed or damaged due to the fault of your neighbour, they may have to pay the entire cost of rebuilding the fence or the cost of repairing the damaged part of it. If you think your neighbour has been negligent, you should get legal advice.
Forms of fencing notice
A fencing notice is a formal document under the Fences Act 1975 that sets out a proposal for construction or repair of a dividing fence can be found on Fences and the Law booklet published by the Legal Services Commission. You should attach a copy of the quote you have received from the fencing contractor.
Unable to locate your neighbour
You must make reasonable inquiries to locate the adjoining owner, including asking any tenant of the adjoining property and the local council. Land Services SA offer a search function (fees apply)
General principle – owners are liable to contribute in equal proportions
Generally, a magistrate may order neighbours to pay equal amounts to repair or construct a dividing fence. If an owner wants a higher standard, like a more expensive fence, the person who wants this will usually pay the difference in costs between a 'sufficient dividing fence' and the higher standard.
A number of factors are taken into consideration when determining what a sufficient dividing fence is for the properties.
In determining whether a dividing fence is a sufficient dividing fence, regard must be had to a number of factors, including but not limited to:
- the existing dividing fence (if any)
- the purposes for which the neighbours use or intend the lands to be used
- the reasonable privacy concerns
- the types of dividing fences used in the locality
- any policy or code relating to dividing fences adopted by the council.
My fence shares a boundary with government or council land. Who pays?
Particular types of Crown land are exempted from contributions under the Fences Act.
You may need to get further legal advice or information about whether the Crown is required to make a contribution.
Are fences included under my insurance policy?
This will depend on the terms of your policy.
If you have lost your insurance policy documents, you should contact your insurance company. If you cannot recall the name of your insurer, contact the Insurance Council of Australia on 1300 728 228.
My fence and/or fire control lines were damaged or destroyed due to the firefighting effort. Who pays for the repairs?
If the fire started on public or Crown land, the South Australian Government may assist you with:
- the rehabilitation of fire control lines
- the cost of restoring fences on private land, which were damaged by machinery or cut to allow access.
I am worried about unsafe trees and my fencing. What can I do?
Before removing any part of a tree you should firstly consider safety risks and contact your local council to check you do not require special permission.
If the tree is located on your neighbour’s property you should raise your concerns with your neighbour.
If you are unable to reach a resolution with your neighbour, you can cut branches and tree roots which cross the fence line onto your property. For further information Trees and the Law booklet published by the Legal Services Commission and community mediation 83421800 or email@example.com