Australian Civil Liberties Union

Your Rights 2005

Chapter 2


Dividing fences: Encroaching trees. Excavations. Nuisance and Noise.Animals.Persons Entering Your Property. Defamation.


The law lays down certain requirements in relation to various matters such as dividing fences, overhanging branches, excavations, nuisance, trespassers, animals and defamation which can cause conflicts with your neighbours. It is almost invariably better to discuss any problems with your neighbour over such matters before taking any action. Although most minor disputes are best settled without recourse to law it is important to know your rights and obligations.

Dividing Fences. Payment for the erection or repair of dividing fences often causes disputes between neighbours. An owner wishing to compel a neighbour to help with the construction of a dividing fence can serve on him a notice setting out the boundary to be fenced, containing a specific proposal to fence the boundary and setting out the kind of fence to be constructed.

If agreement cannot be reached the matter can be referred to a Magistrate’s Court or a Mediation Centre. The Court may resolve the issue raised by the notice by making an order covering the time for construction of the fence, the proportion of the cost to be contributed by each party and any compensation to be paid due to re-alignment of the fence. The Court is not bound to order the cheapest fence available and may take into consideration the other fences in the locality and the way the land is used.

If your neighbour does not obey the Court’s order, you may build the fence and recover half the cost. If the existing fence is adequate, you cannot force your neighbour to contribute to the cost of a new fence. You may serve notice on your neighbour requiring him to assist in repairing a dividing fence. If your neighbour does not comply within one month, you can repair the fence and recover half the cost.

Encroaching Trees. A land owner owns not just the surface of the land but the air above and the soil beneath. If the adjoining owner’s trees intrude on to your land you may cut off the overhanging branches or cut off roots which come across the boundary. If you do cut off encroaching branches or roots, they still belong to your neighbour and can be placed on his property. You need not give your neighbour any notice unless you propose to enter his land.As with any other dispute with your neighbour, it is much better to try to resolve the issue by negotiation than direct action.

Excavations. You may excavate your land up your boundary even though this leaves the adjoining house on the edge of the excavation. However, your neighbour can claim lateral support. This means that if his land caves in or subsides in any way as a result of your excavation you will be liable for all resulting damage. But there is no right of action until the damage actually occurs.

Most excavations near boundaries are for foundations of buildings or swimming pools and the consent of the local council is needed. Such consent is usually subject to a condition that provision is made for the support of adjacent buildings by use of retaining walls.

Nuisance and Noise. Most people at some stage are annoyed by their neighbours’ barking dogs, noisy parties or electrically operated equipment. Various types of objectionable conduct, such as conduct likely to cause a hazard to health including the escape of smoke or sewerage, is prohibited by law. Also the hours during which building operations may be conducted are prescribed by law. If you are worried by a builder working at an unreasonably late or early hour you could report the matter to the authorities and, provided your complaint is justified, steps will be taken to ensure the builder adheres to the prescribed hours.

You may be able to take out an injunction and obtain damages if your neighbour interferes with the use and enjoyment of your land by excessive noise, smells, smoke or vibrations. However, you will not be able to take action if the nuisance caused is only trivial.

A fair amount of tolerance and give and take is expected from members of a community. A vendetta or feud mentality between neighbours can be unpleasant and even dangerous. If you obtain an injunction your neighbour could be sent to jail if he ignores it. You may also be able to obtain damages if you can prove actual loss. If your neighbour is disturbing you late at night or in the early morning by excessive noise through use of radios, cars, television, air-conditioners, motor mowers or other mechanical equipment, you should point out, in a pleasant way, the inconvenience being caused to you. If your neighbour does not change his conduct, you can report the matter to the police or to the noise control authority in your State, and your neighbour could be prosecuted.

If your neighbour does anything on his property such as lighting a fire which is potentially dangerous and your property is damaged, he would be liable for any resulting damage. He would also be liable for damage caused by water escaping from a drain or swimming pool, but not for damage caused by the natural flow of rain water.

Animals. The law provides for the registration of dogs and authorizes the destruction of unregistered dogs or those attacking people or animals. Dogs are required to wear a collar and identifying disc and may be impounded if they are unaccompanied in a public place. You would be liable for any injury to a neighbour caused by your dog whether you were aware of its propensity to cause damage or not. You would also be liable for damage caused by naturally ferocious animals. You would, however, not be liable for damage caused by naturally harmless animals (excluding dogs) such as horses and cats unless you knew or should have known that the particular animal was dangerous.

A land owner is generally not liable for damage caused to a motorist by reason of an animal such as a cow or horse wandering on to the road even if the animal escaped on to the road due to inadequate fencing. But under new legislation for example inVictoria the land owner could be liable.

Persons Entering Your Property. Some public officials do not need your consent to enter your house. Thus police can come on to your property and can enter your house if they have a warrant (see chapter 8). Gas and electricity officials,Telecom officials, health and building inspectors and firemen can enter your house without your consent, and other public officials can enter in an emergency. Public officials should only visit you premises in reasonable hours, should carry appropriate identification, and should not use force to enter your house unless they have a specific warrant. If you are in doubt whether a public official can enter your premises, you should query his right to enter and lodge a protest if you think he has exceeded his powers. However, it would be unwise to offer physical resistance. You should lodge a complaint with the Federal or State Ombudsman if a public official acts unreasonably or exceeds his authority.

A trespasser is a person entering your property without your consent. Trespass itself is not a criminal offence, but a trespasser could be charged with being unlawfully on premises. You may use reasonable force to remove a person on your property without your consent. If you use excessive force to remove a trespasser you could be prosecuted.

Consent to enter your property may be implied. Thus in the absence of any warning notice, there is implied consent to people to come on to your property for social, commercial or canvassing purposes. If you ask a person who has entered onto your property to leave and he refuses, he then becomes a trespasser. You can sue a trespasser for damages if you incur any loss, and could obtain an injunction against a persistent trespasser. However, most disputes about people on your property can be resolved amicably if you keep your head and be polite and calm.

A trespasser comes on to your land at his own risk and you are under no obligation to make the property safe for him.You would not be liable if he fell into a hole you had left unfenced or unlit, but you could be liable for injury caused by booby traps or live electric wires designed to kill or maim intruders, or by ferocious dogs. In some cases you  could be liable for injury caused to a child trespasser allured on to your land.

If a person enters your property with your express or implied consent, you may be liable for any injury he sustains due to any hidden traps or dangers, or due to any defect or hazard on your property of which you are aware. People entering your property with a common business interest, such as a tradesman delivering goods (an invitee) are entitled to be protected by reasonable precautions against unusual dangers of which you are aware or of which you ought reasonably to have been aware.

People on your property with permission, but without a contract or common business purpose (licencees) such as casual visitors or guests, are only entitled to be warned of unusual dangers of which you are actually aware.

If you own property which has hidden dangers, it may be advisable to take out public risk insurance, or display prominent notices that people enter at their own risk. In any event, you should make your property as safe as possible. (Recent legislation in Victoria makes some alterations in occupiers liability.)

Defamation. It is quite common for neighbours to verbally abuse each other from time to time. If you or your friends are abused by your neighbour or his friends, you should refrain from being abusive and be either pleasant in response or offer no response.

Keep your cool. If you can see some reason for the outburst by your neighbour, you should discuss the point at issue in a reasonable way.

If your neighbour is persistently abusive or is threatening, the police could charge your neighbour with offensive behaviour or seek an order that he refrain from conduct likely to cause a breach of the peace. If untrue statements are made about you which cause you damage, you may be entitled to damages for slander. However, such actions are expensive and are not recommended. Sometimes you will just have to put up with an unpleasant neighbour.

Mediation Centres have recently been set up in N.S.W. and Vic. to help neighbours resolve their disputes by informal mediation. (See Chapter 1.)



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Australian Civil Liberties Union