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Legal Aid Commission of Tasmania Telephone Advice Service
1300 366 611
Boundary Fences Self Help Kit - 24kb PDF file contains further notes and copies of notices
Putting up or repairing a boundary fence between neighbouring properties is a common neighbourhood issue. Nevertheless, if done in the proper way, any problems that the neighbours may encounter can be sorted out.
The Boundary Fences Act 1908 ('the Act') sets out the law in Tasmania relating to erecting and repairing boundary fences. If neighbouring properties are not divided by a 'sufficient or rabbit-proof' fence, or the fence needs repairing, the neighbours are legally required to erect or repair the fence.
The provisions of the Act will not apply to you if your property boundary adjoins unoccupied Crown land, a public reserve, land owned by the Forestry Corporation, or any unsold land adjoining land already owned by one person (e.g. land in a subdivision which has not yet been sold separately) [s.71B Conveyancing and Law of Property Act 1884]. Nor does it apply if you are simply renting the property. It is the owner of the property who is responsible for erecting or repairing a boundary fence, not the tenant.
The Act refers to erecting or repairing a 'sufficient or rabbit-proof' fence. Where the fence is in a city or town, or next to another home, then it means a fence that the neighbours have agreed on. In rural areas, a sufficient fence is a fence that can keep cattle or sheep in or out.
A boundary fence must be erected along the boundary line. Where the boundary is uncertain because it is a river, creek, lake, pond, or is rocky land, the neighbours can agree on the line the fence should take.
Council approval is not normally necessary for erecting a new fence unless the fence is over 2 metres high.
Both neighbours are responsible for the cost of erecting or repairing a boundary fence. If you want your neighbour to help out with the cost, you must serve on them a notice to erect or repair a fence. To serve such a notice you can give it to your neighbour by handing it to him or her, or send it in the mail. If you put up a fence or repair one without serving the proper notice on your neighbour, or without any verbal or written agreement having been made between you, your neighbour cannot be forced to help out with the cost.
The forms to use for giving your neighbour notice to erect a fence (Form 1) or to repair a fence (Form 2) are found in Schedule 1 of the Boundary Fences Regulations 2008.
If your neighbour does not agree with your proposals for erecting or repairing the boundary fence, including the type of fence to be erected, they can object. To do this they must put their objection in writing, stating what they do not agree with, and serve it on you within 21 days of having received your original notice. If after 30 days of serving your notice, you have not received an objection from your neighbour, you may go ahead and erect or repair the fence and then recover half the cost from them. If an objection has been made and you cannot resolve the dispute, you should both meet with a mediator or a fencing arbitrator to resolve the issue.
If there is no possible way to erect or repair the fence from your own side of the boundary, then you, or tradesmen or labourers you have engaged, may go onto your neighbour's land to do this. Entry must be at reasonable times whilst the work is being completed. If your neighbour's land is a crop, garden, orchard, plantation or shrubbery then you must get their permission first. If you damage your neighbour's property while doing the work, either on purpose or accidentally, then you will have to pay compensation to your neighbour for the damage caused.
Provided you have served a notice on your neighbour, in the correct form, you are able to recover half the cost of erecting or repairing a boundary fence from that neighbour up to 2 years from the date the fence was completed, together with interest.