As a resident in the ACT, we all share boundaries, and fences, with neighbours. Laws about fences are found in the Planning and Development Regulation 2008 (ACT), Common Boundaries Act 1981 (ACT), Building (General) Regulation 2008 (ACT) and the Territory Plan. Fences can be expensive and can be a source of disputes between neighbours. This factsheet provides basic information on the fencing requirements in the ACT, and what you can do if a conflict arises.
What should I consider when building a fence?
When building a fence between properties, there are a number of things you will need to take into consideration, including the type of fence you will build, its height, the materials it will be made out of, and whether you need development approval.
Do I need development approval?
A freestanding wall or fence between neighbours in an urban area does not need development approval (that is, it is exempt from the requirement for development approval) if:
- a fence panel or wall is no higher than 2.3m above natural ground level;
- a fence support post or wall is no higher than 2.5m above natural ground level;
- no part of the fence or wall is between a front boundary and a building line for the block;
- no part of the fence or wall diverts or concentrates the flow of surface water onto other land or in a way that causes ponding.
See section 1.51, Schedule 1 of the Planning and Development Regulation.
Note: Different exemption rules apply depending on what surrounds your property. See section 1.85, Schedule 1 of the Planning and Development Regulation 2008 for exempt developments on rural blocks.
Different rules also apply to fences between privately owned property and unleased territory land such as parks, reserves, public access areas, street frontage, laneways and other landscaped buffer zones. These fences are built and maintained at your own cost. There may be rules about the sorts of materials you can use to build these fences. If you live on a parcel of land that borders Territory land, the Environment, Planning and Sustainable Development Directorate may require you to erect a fence on the boundary or any part of it at your own expense (section 23 of the Common Boundaries Act).
You do not need development approval to repair an existing fence.
Lodging a development application
If the type of fence you wish to build is not exempt under the Planning and Development Regulation 2008, you will need to lodge a development application. If the application is successful, the costs will subject to the arrangements with you have made with your neighbour.
Does my fence need building approval?
Can I build a fence facing the street?
In residential zones, fences or boundary walls facing the street are not allowed under the Residential Boundary Fences General Code (Item 2.1) in the Territory Plan, though there are exceptions to this rule. Exceptions are set out in the code and include (but are not limited to):
- As previously approved as part of an Estate Development Plan (Item 2.1)
- Corner Blocks (Items 2.2, 2.3 and 2.4);
- Battle-axe blocks and blocks with frontages to open space (Item 2.5);
- Fences beside major roads where allowed in the Lease or previously approved (Item 2.6);
- Diplomatic residences and chancelleries (Item 2.7).
See the Residential Boundary Fences General Code for more details on front fences.
Who pays for a fence on a common boundary?
According to the Common Boundaries Act 1981, private property owners who share side or rear fences are each responsible for half the cost and maintenance of a basic urban fence. For a fence to be a basic urban fence, it must:
- Be a timber paling fence;
- Be 1.5m in height above finished ground level;
- Have reinforced spade-end precast concrete posts spaced at 2.4m;
- Have a 75mm x 50mm hardwood rail at the top and bottom of the fence that is fixed to the posts; and
- Have 100mm x 12mm hardwood palings nailed to the rails (section 2).
If you want a fence that is not a basic urban fence, you and your neighbour will have to agree to the design and cost before the fence is erected. These costs will also include the expense of removing the existing fence (section 2C) and any costs of surveyors (section 2D).
I can’t reach an agreement with my neighbour about a fence – what next?
If you and your neighbour cannot reach an agreement about a fence on a common boundary, you can try mediation. Mediation is a discussion facilitated by an independent person who has been trained in resolving conflict. The Conflict Resolution Service (www.crs.org.au) provides free or lowcost mediation and is recommended by the ACT government – especially for disputes involving common boundaries and fences.
ACT Civil and Administrative Tribunal (ACAT)
The ACT Civil and Administrative Tribunal (ACAT) is an independent body with exclusive jurisdiction to hear and determine common boundary disputes in the ACT. If you cannot resolve a dispute about a common fence through discussions with your neighbour or by mediation, ACAT may be able to hear the dispute. For most situations, the most significant source of law governing fence disputes heard in ACAT is the Common Boundaries Act 1981.
You cannot apply to the ACAT for a determination about the fence until you have attempted to resolve the dispute by writing to your neighbour about what you are asking them to do. If you are seeking agreement with your neighbour to share the costs of constructing a new fence, or to sharing the costs of repair or replacement of a fence, including a fence that needed to be fixed urgently, you will need to show that you have written to your neighbour and given them an opportunity to respond. A sample Notice to Discuss Fence letter is provided on the ACAT website.
There are different types of fencing disputes that can be heard by the ACAT:
- New fence determination (section 4): Where there is no existing fence and you and your neighbour cannot agree on building a fence.
- Repair determination (section 5): Where you and your neighbour cannot agree about repairing a fence. NOTE: You must give your neighbour a notice to discuss fence (see above).
- Application for a repair cost determination (section 6): Where you or your neighbour have already repaired the fence but you cannot agree how much each of you should pay.
- Application for an unleased land determination (section 7). Where you have started building a fence next to land which was not a parcel of land when you started building the fence but has since become a parcel of land. A parcel of land is land held under a lease from the Territory or a sublease (section 2A).
- Application for variation of a determination (section 14). Where ACAT has already made a determination and you want to change it.
You can make an application to ACAT to resolve a dispute by filling in the Fence Dispute Application Form on the ACAT website. These applications attract a fee. See the ACAT website for more information and for the current application fees.
|Notice to Discuss Fence|
If you want a new fence or repair determination in ACAT, you must give your neighbour a Notice to Discuss Fence before you apply to ACAT. A Notice to Discuss Fence is a letter asking your neighbour to discuss reaching an agreement. ACAT has a useful Notice to Discuss Fence template online.
Here are the general steps taken in ACAT, if you lodge a dispute application.
Step 1 – ACAT Receives Your Application
After you lodge your application, the Registrar will decide what steps to take. You may be referred to a conference or mediation. You and your neighbour will receive written notice of the steps and the date, time and location of the next conference or hearing.
Step 2 – Conference
The Registrar may conduct a pre-hearing conference. The purpose of the conference is to understand what issues are in dispute, make sure that you have tried to resolve the dispute and assess how long a hearing would take. A large number of common boundary disputes are dealt with through the tribunals Conference and mediation determination process. There is a guide on ACAT’s website about what to expect. If this is unsuccessful, you will proceed to a hearing. If you reach an agreement, the terms of the agreement can be lodged with ACAT. If you do not reach an agreement, you may go to a hearing.
Step 3 – Hearing
You will receive written notice advising the date, time and location of the hearing. At the hearing, you will be asked if you have any further information or evidence to that already presented in the application or the response.
For information about going to ACAT, please see the ACAT website on www.acat.act.gov.au.
Where can I find out more information?
You can find out more information through the following:
- Access Canberra (in particular, see Fencing disputes between neighbours and Residential fence information for the ACT);
- Conflict Resolution Service;
- The Legal Aid Helpline (1300 654 314);
- The EDO at www.edo.org.au;
- Your local EDO Canberra office on (02) 6243 3460.
Disclaimer: The law described in this fact sheet is current at January 2019. This fact sheet has been designed to give readers plain English background information in planning and environmental law in the ACT. It is brief, for general information purposes only and does not replace the need for professional legal advice in individual cases. To request free initial legal advice, please contact us on (02) 6243 3460. While every effort has been made to ensure the information is accurate, the EDO ACT does not accept any responsibility for any loss or damage resulting from any error in this fact sheet, or reliance or use of this work. Duplication and reproduction of the information is permitted with acknowledgment of the EDO ACT. This fact sheet was produced with the assistance of funds made available by the ACT Government through the Justice and Community Services Directorate.