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A common neighbourhood dispute is frequently about who pays for fixing a fence or, where one neighbour wants a new fence, paying to replace a fence. The Dividing Fences Act 1961 (WA) sets out who is liable for costs and what you do if your neighbour does not pay.
Where neighbouring (adjoining) properties are not separated by a sufficient fence, each neighbour is liable to contribute equally to the construction of a dividing fence.[1] A sufficient fence is any fence prescribed by a local law as a sufficient fence or agreed to be sufficient or, if there is no local law, any substantial fence that is ordinarily capable of
resisting the trespass of cattle and sheep.
If your neighbour has not agreed to pay their share of the expense, you may issue a notice specifying the boundary to be fenced, the proposal for the fence and the kind of fence proposed to be constructed.[2]
If your neighbour does not agree to the need for the fence, where it is to be constructed or the kind to be constructed, you may apply to the Court for relevant orders within 21 days of giving the notice.[3] If your neighbour does not comply with the Court order or an agreement made in response to the notice with 3 months, you may construct the fence as agreed or ordered.[4]
If the fence has already been constructed, the person who paid can give noticed requiring the neighbour to pay their share. That other neighbour may then give notice disputing the need for the fence, claiming it is not desirable or the amount in the claim, in which case the person who paid will have to apply for an order from the Court.[5]
[1] Dividing Fences Act 1961 Section 7 [2] Dividing Fences Act 1961 Section 8 [3] Dividing Fences Act 1961 Section 9(1) [4] Dividing Fences Act 1961 Section 10 [5] Dividing Fences Act 1961 Section 13