A guide from City Surveyors Adelaide: the Fences Act in South Australia, and why the survey comes before the notice.
If you want to build or replace a fence with a neighbour in South Australia, the Fences Act 1975 sets the steps.
You serve a written notice on your neighbour.
They have 30 days to object.
Then the work can go ahead.
There are three forms.
Form 1 is the notice for a new fence.
Form 2 is for replacing, repairing or maintaining an existing fence.
And Form 3 is the cross-notice your neighbour serves if they object.
They do not have to give reasons.
If they do not object within 30 days, the law treats them as having agreed.
Here is the key point.
The notice has to state the length and position of the proposed fence.
So the notice is a written proposal about where the fence goes.
If that position is a guess based on the old fence, you are asking your neighbour to agree to something neither of you has checked.
A dividing fence belongs on the legal boundary, and many existing fences are not on it.
The old fence does not change the boundary or who owns the land.
And the SA Government says a boundary's position can only be determined by a licensed surveyor.
That is why the survey comes first.
Pegs at each end of the boundary give both neighbours the same line.
You describe the fence from the pegs, and the fencing contractor builds to them.
If a fence goes up in the wrong place, the Magistrates Court can decide the line and order a fence that is off the boundary to be removed.
Fixing it before the notice is far cheaper.
Who pays?
The Act counts the cost of any survey reasonably required for the fence as part of the cost of the fencing work.
If neighbours disagree on the split, it is decided by the benefit each gets, and equal benefit is presumed.
If one owner wants a better fence than an adequate one for the area,
the neighbour's share can be capped at half the minimum cost of an adequate fence.
And unless your neighbour agrees in writing, do not start before the 30 days are up, or you may lose the right to ask them to contribute.
Two more points.
Survey pegs are protected by the Survey Act, although the Act allows a non-permanent peg to be disturbed while building the fence on the line it marks.
And if your fence will sit on a concrete plinth or retaining wall, the Supreme Court has treated a fence,
plinth and wall together as a structure, which can be an encroachment if it crosses the boundary.
In that case, knowing the exact boundary matters most of all.
Most ordinary fences up to 2.1 metres high do not need development approval, but heritage places,
masonry fences over 1 metre, some corner fences and fences in some overlays are different, so check with your council if you are unsure.
Our guide for a standard residential survey is 800 to 3,500 dollars, depending on the type of survey and the size and complexity of the land.
Planning a new boundary fence?
Send City Surveyors Adelaide your address and a short note about the job, and we will tell you which survey you need and quote it for free.
Or call (08) 7110 0760.
This is general information about South Australian law, not legal advice.