What things should I consider before building or replacing a dividing fence?
These matters can become complicated and it is often best to get legal advice.
Dividing Fences: A Guide is available at the Department of Commerce- Building Commission web site. The guide includes information about the process of agreeing to, and sharing the costs of dividing fences and provides answers to some frequently asked questions.
You may also be able to get information and advice from the Building Commission on 1300 489 099 or its website, or your local government.
Your local government can advise on minimum fencing requirements under local laws.
I need to get some help with my rights concerning retaining walls. What should I do?
The law about retaining walls is complex. You should get legal advice. Legal Aid WA does not give advice in this area.
The party who changes the lie of the land either by excavation or building up is responsible for building a retaining wall. The wall is built to make sure there is no risk of earth movement. If both neighbours alter the lie of the land each neighbour will be responsible for the construction and maintenance of the retaining wall to the extent of their own alteration.
Always check with the local government about building requirements before constructing a retaining wall.
There are local government laws that require an owner and occupier to maintain the wall.
In some cases your local government will send out a building inspector who may be able to resolve the matter.
What if my neighbour is building near my boundary?
Your local government has the responsibility for approving buildings and structures. You should contact it if you have any query about planning and building such as building setbacks from your boundary, building heights, privacy and overlooking, and overshadowing. Under the Planning and Development Act 2005 (WA), local government has the responsibility for making sure that all residential buildings comply with the 'Residential design codes'.
What if I want to build near my boundary?
You should check with your local government before starting any building, extension or renovation to your property. This includes 'out buildings' such as garages, carports or garden sheds.
What can I do about my neighbour's overhanging branches and/or invading tree roots?
If you have a problem with overhanging branches or invading tree roots talk to your neighbour and try to resolve the complaint first.
Can I cut down an overhanging branch or a tree root that has come on to my property?
If a branch or root comes onto your side of the fence, you are allowed to:
- Cut off the branch to the point it overhangs your property.
- Dig up the root and remove it up to the boundary or fence line of your land.
- not cut the branch or dig up the root on your neighbour's side or enter your neighbour's property without their agreement
- not poison the neighbour's tree or any roots that are on your property
- take care not to cause unnecessary damage to the tree
Do I have to let my neighbour know?
You do not have to let your neighbour know you intend to cut things back from your property, but it is a good idea to let them know there is a problem and what you are going to do.
Do I need any one else's permission?
Some local governments have tree preservation orders in place. These orders may prohibit the pruning and removal of specified trees. Check with your local government.
What should I do with the cuttings?
Any root, branch, flower or fruit growing on a branch that you cut back still belongs to the tree's owner and should be returned to your neighbour. With the owner's permission, you could throw it out.
Be careful about how they are returned. You are responsible for any damage or littering that might happen. It is sensible to let your neighbour know what you are going to do.
How do I get payment for removal of branches or roots or any damage caused by my neighbour's tree?
Repairing damage caused by a neighbour's tree can be costly. Roots can damage foundations, block drains or raise brick paving. Overhanging branches can drop leaves into your gutters or prevent your own trees and crops from growing.
If you need to have repairs done or have to get a specialist in to remove the roots or branches, write a letter to your neighbour
- setting out what the damage is
- giving them copies of quotes for getting the work done and
- asking them to pay to fix the problem so it does not happen again
You should keep a copy of the letter.
Once your neighbour knows of the problem (or should have become aware of it) they have a responsibility to fix the problem so it does not keep going or worsen.
If there is a cost involved in fixing the problem, you should reach an agreement with your neighbour about who will pay before you start the job.
What if we cannot reach an agreement about who should pay for the removal or damage?
There are mediation services available that can help neighbours reach an agreement when there is a dispute.
Legal action against neighbours can lead to bad relationships that cannot be repaired. Where possible, think about negotiating an agreement, or going to a dispute resolution service instead of taking court action.
For more information go to Dispute resolution or check your local telephone directory.
If you cannot reach an agreement, you may have to apply to court for an order that your neighbour has to have the branches or roots removed.
Before taking any steps that may become costly or starting any legal action, get legal advice.
My neighbour's tree has fruit that overhangs in my property. Who owns the fruit?
The fruit belongs to the owner of the tree.
Where can I get more information?
- The Department of the Attorney General's Magistrates Court of WA website for information on dividing fences, including relevant forms if a dispute has to go to the Magistrates Court and the costs of court proceedings
- Contact the Department of Commerce - Building Commission on 1300 489 099 for information on dividing fences, building legislation and regulations and building codes and standards
- Go to the online Local Government Directory for how to contact your local government
- Landgate provides information on issues such as defining and surveying boundaries
Last reviewed: 12/01/2011