Neighbourhood Disputes | Barwon Community Legal Service
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Neighbourhood Disputes

The content on this site is information only and is not legal advice. If you need legal advice please contact us.

Understand your legal rights and obligations in neighbourhood disputes

A conflict with a neighbour can be distressing, especially if you spend a lot of time at home. These issues often concern fencing, noise (especially barking dogs), hazards, harassment, and trees. If there’s a dispute brewing in your neighbourhood, you’ll need to understand your legal rights and obligations, and where to get help.

The most important thing to remember in a neighbourhood dispute

Your neighbour will probably continue being your neighbour for a long time unless one of you chooses to move.

You need to do your best to avoid conflict and preserve the relationship.

It’s great to resolve a dispute, but if you’ve had to resort to legal action or confrontation, your relationship with your neighbour will probably get worse. For this reason, any Court action should be a last resort.

Fence disputes

A fence refers to the dividing fence between two properties. A fence dispute is a disagreement over a fence, for example, because:

  • It’s damaged
  • It needs replacing
  • It needs relocating

A fence dispute can also arise where there’s no fence, and the neighbours disagree about whether to erect one.

In Victoria, fencing issues are regulated by the Fences Act.

The law says that:

  • You should give your neighbour a fencing notice if you want to put up a fence
  • Neighbours should equally share the cost of putting up a fence

However, there are exceptions to these requirements. For example, you and your neighbour may agree to split the cost of the fence in unequal shares.

The law also requires that dividing fences are built to a sufficient standard, taking into account various considerations, including:

  • Use of the land
  • The need for privacy
  • Types of fences used by other properties in the area
  • Planning laws for your area

If you need a new boundary fence, or your existing fence needs repairing, the first step is to contact your neighbour.

If your neighbour agrees to replace or repair the fence, you can also decide to get some fencing quotes. You and your neighbour can choose a quote, agree on the amount you will each pay, and how you’ll pay. Make sure you write down all the details of your agreement, including who will pay, how much, and when payment is due. You may need this information later if there’s an issue with payment.

If you can agree with your neighbour, there’s no need to give them a legal notice to repair or replace the fence.

If your neighbour doesn’t agree to replace or repair the boundary fence, you need to try to find out why. You can politely speak to them (unless they are abusive) or write to them about this. If there’s disagreement about whether the fence is a sufficient standard (or quality), you will need to find out why the neighbour has that opinion. You may be able to discuss the issue and arrive at an agreement.

If you can’t agree, you can try and have a mediation to resolve the issue.

Mediation is a process where an independent person (a mediator) helps you and your neighbour find a way to resolve your disagreement. The Dispute Resolution Centre of Victoria offers a mediation service which is free and confidential.

For more information about mediation, visit the Dispute Resolution Centre of Victoria’s mediation page.

Sometimes, mediation doesn’t work, or a neighbour refuses to participate. If this happens to you, you will need to complete a Fencing Notice and give it to your neighbour, or mail it using Registered Post so that you have a record that it was delivered. You should also keep a note of the time and date that you posted or delivered the notice, in case you need to provide it to a Court.

You’ll have to complete information including:

  • The cost of the fence
  • The contractor
  • What materials are to be used
  • Where the fence will be erected
  • How much money you want your neighbour to contribute

You’ll also need to include fencing quotes with the Fencing Notice.

Your neighbour has 30 days to respond to the Notice, from the day you gave it to them. If they don’t respond, you’re allowed to go ahead and put up the fence. However, if you want any money from your neighbour, you may have to take legal action against them if they’re still not willing to contribute.

If your neighbour responds within the 30 days but refuses to go ahead with the fence, you may need to return to mediation to resolve the issue.

You may not know who owns your neighbour’s land if the house is rented, or if it’s unoccupied or vacant land.

In these circumstances, you must try to track down the owner and serve the Fencing Notice on them. You can try:

  • Speaking to the tenant living in the property
  • Searching local council rates records
  • Searching the Certificate of Title details at Property and Land Titles Victoria
  • Putting an advertisement in your local paper

You need to keep a record of all your attempts to find the property owner, including date, time and method, because you may need to show a Court later that you made all reasonable attempts.

If you can’t find the owner, you can mail the Fencing Notice to the property address, or to any address you’ve found for them. Make sure you use registered post.

Once the 30-day period has expired, you can go ahead and put up your fence if you haven’t heard from the owner. But you need to bear in mind that if you haven’t located the owner, it’s likely that you’ll be paying for the total cost of the fence on your own.

Sometimes, you may have to go to Court to sort out a fencing disagreement. Sometimes, fencing issues go to Court if:

  • Your neighbour refuses to agree to repair or replace the fence and won’t pay for it
  • Your neighbour agreed to repair or replace the fence but now refuses to pay
  • You couldn’t track down the owner of the property

If mediation hasn’t worked, you can apply to the Magistrates’ Court for an order that your neighbour pays their share of the cost of the fence. You need to file a claim form in the Magistrate’s Court to start the legal action. You will then have to serve the claim on your neighbour, who will have 21 days to file a defence to the action.

If your neighbour doesn’t file a defence, you can apply to the Court for a default judgment. This means the Court decides the claim without reference to your neighbour because your neighbour hasn’t filed a defence.

If they do file a defence, the Court will then manage the action, require you to provide documents, or hold some hearings to direct what happens next. It may direct you to attend a settlement conference, which is similar to mediation, to try and resolve the issue.

If that doesn’t work, the Court will schedule a trial. Once it has heard all the evidence in the trial, the Court may make an order in your favour, or it may dismiss your application.

To find out more about how to start your legal claim, and the hearing process, make an appointment with us to discuss what to expect.

Even after filing a legal claim, it’s possible to settle the issue. If your neighbour agrees to pay the money, you need to write down exactly what was agreed and then let the Court know by contacting the Court Registry. The Court will give you instructions about what to do next.

If the Court makes an order in your favour, you’ll need to serve it on your neighbour, preferably by post. If you can’t find your neighbour, or your neighbour doesn’t pay the money in the time required by the order, contact the Court Registry about what to do next.

If you don’t agree to a new fence, you should try to discuss the issue with your neighbour. If that doesn’t work, you may need to go to mediation to attempt to find a solution.

If your neighbour serves a Fencing Notice on you, you have 30 days in which to respond. Your neighbour will then decide whether to go back to mediation or the Magistrates’ Court.

If you receive a Fencing Notice, you can make an appointment with us to discuss what to do next.

If your neighbour wants to put up a higher or more expensive fence, you may object to paying half. You only need to agree to pay half the cost of a sufficient standard fence and your neighbour can pay the balance. To work out what would be a sufficient standard fence, you’ll need advice and new quotes from the fencing contractors who are providing the quotes or from other fencing contractors. Your local council may also be able to give you some guidance.

If your neighbour is insisting on a new fence, even though the current fence is still in good condition and is of an appropriate standard, you may have to go to mediation to resolve the issue. If that doesn’t work and your neighbour makes a claim in Court, you’ll need photos to show to the Court. You’ll also need to put your evidence in a document called an affidavit (this is a way of putting your evidence before the Court without having to give witness testimony).  It would also be a good idea to have an affidavit from a fencing contractor who can say the fence is in good condition.

We can give you information about what to expect in this situation, and how to draft an affidavit.

If your fence needs replacing because of fire, flood or other damage, you can replace it immediately, without having to negotiate with your neighbour. An example of this type of situation is when a fence is needed to keep livestock on a farming property.

You can use an Urgent Fencing Notice if you want your neighbour to contribute to the cost of the new fence.

Wally’s fencing woes

Wally’s house was next to a vacant block of land. The fence between the two properties was falling apart. Sheets of corrugated iron were rusting and falling off the railings. Wally was concerned that the fence was a danger to his grandchildren when they came to visit, especially if snakes found their way into his yard from the long grass next door.

Wally didn’t know who owned the property, so he went to the local council and found the owner’s name and address on the rates register. The property belonged to Maria. Wally wrote to Maria, saying that they needed a new fence and asking her to contribute 50 per cent of the cost. Maria didn’t respond.

Wally then sent Maria a Fencing Notice, with a quote to replace the fence. Maria didn’t respond within 30 days, so Wally accepted the quote and had the new fence erected.

Wally wanted Maria to contribute to the cost of the fence, so he made an appointment with Barwon Community Legal Service (BCLS) to find out how to claim in the Magistrates’ Court.

The BCLS lawyer has talked to Wally about the process, and he will decide what to do next.

Noisy neighbours

Noisy neighbours can create serious issues. Noise disruption can cause poor sleep, anxiety, depression and reduced quality of life. The Victorian Government recognises that neighbour noise can have a severe impact. It has passed laws to regulate noise issues, and what action to take when things get out of hand.

It’s an offence to make unreasonable noise at your home. A home can include a house, townhouse, flat or other types of domestic residence.

Noise may include:

  • Loud parties
  • Barking dogs
  • Noisy machinery or tools
  • Revving car engines
  • Audio equipment such as TVs and stereo systems

Whether the noise is unreasonable depends on a range of things, including:

  • Whether you can hear the neighbour’s noise from your bedrooms or living rooms
  • The volume of the noise
  • Where the noise is coming from
  • How often you hear the noise, and for how long
  • At what times of the day or night you can hear the noise

There are laws about when you can make certain types of noise. For example, the following noisy activities must not occur before 7 am or after 8 pm Monday to Friday, or before 9 am or after 8 pm on weekends:

  • Car engines idling or revving
  • Lawnmowers and edging equipment
  • Electric or pneumatic power tools

Other time restrictions apply to the use of equipment including:

  • Pool filters
  • Musical instruments
  • Air conditioners

For a full list of equipment and time restrictions, see the Environmental Protection Authority’s guide, Annoyed By Noise?

If your neighbours are making too much noise, you need to try speaking to them about the issue. They may not realise that their noise is causing problems for you.

If you can’t sort out the problem, you may need to consider mediation. Mediation is a meeting that you and your neighbour attend. An independent person (a mediator) meets with you separately, listens to both sides of the story and then meets with you together. The mediator works with you and your neighbour to achieve a solution to which everyone agrees.

Contact the Disputes Settlement Centre of Victoria for more information about mediation.

If you still can’t reach a solution, or if your neighbour won’t do anything about reducing their noise, you can contact the Police (especially for night noise such as loud parties) or your local council (for day noise). (The Environment Protection Authority is responsible for making the rules to control residential noise, but the local council and the Police take the complaints and can investigate.)

Police can issue Orders to stop the noise. The Orders last for up to 72 hours.

Councils must investigate noise nuisance complaints, which may include working with your neighbour to reduce the noise permanently.

If your neighbours are renting, special laws require them to avoid unreasonable noise. If your property is part of a body corporate, you can also complain to the body corporate and ask it to deal with the issue.

We can provide you with advice about who to contact for help.

In extreme cases, you may need to consider taking legal action against your neighbours, for example, a nuisance action. However, this option should be avoided if possible, because taking legal action against your neighbour will probably only worsen your relationship with them.

For more information about noise issues, see the Environmental Protection Authority’s guide, Annoyed By Noise?

A barking dog is a council issue, so if you’ve tried speaking to your neighbour and the dog continues to bark, you can complain to your local council. The council can:

  • Investigate
  • Issue a notice to the owner to fix the problem
  • Issue a fine to the owner
  • Take legal action against the owner

For more information, contact your local council.

Neighbours’ trees

Neighbours’ trees can cause problems if they’re interfering with your property. But your neighbour isn’t legally required to take action unless the tree is causing damage or nuisance to your property.

Problems with neighbouring trees or other plants can create headaches for you, typically in four situations:

  • Branches overhanging your property
  • Tree roots growing through to your property
  • Dropping leaves on your property
  • Branches or roots damaging your fence

If overhanging branches are a minor problem, the law allows you to cut them back. Technically, the trimmings belong to your neighbour. You can place them in a neat pile on your neighbour’s property. But you need to be aware that:

  • You’re responsible for any damage you cause to your neighbour’s tree while pruning it
  • You can’t go onto your neighbour’s property to prune the tree unless you have their permission
  • The council won’t do anything about an overhanging tree unless the tree is on council land

However, if branches, roots, leaves or other debris have caused damage to your property, you will need to arrange some quotes to fix the issue and then speak to your neighbour. They may agree to fix the problem at their expense or to notify their insurer.

If they disagree, mediation may help. Mediation involves an independent person (the mediator) meeting with the parties to help them agree to resolve the issue. The Dispute Settlement Centre of Victoria offers a private mediation service for tree disputes. This service is free.

If mediation doesn’t fix the problem, you may need to consider taking legal action. This is a last resort because it can worsen the relationship you have with your neighbour.

For more information about tree and plant issues, see our Tree Kit.

To learn more, visit the Dispute Settlement Centre of Victoria’s Frequently Asked Questions about Trees

Neighbour harassment and damage

Having abusive neighbours, or neighbours who are causing damage to your property, can take a considerable toll. You’re entitled to enjoy your property. But a neighbour issue can be stressful and intimidating.

A neighbour’s abusive or damaging behaviour may include:

  • Threats or intimidation
  • Offensive conduct
  • Assault
  • Trespass
  • Theft
  • Noise and fighting
  • Verbal abuse
  • Vandalism and graffiti

If you feel safe, you can try talking to your neighbours and asking them to fix the problems.

It’s a good idea to write down all issues as soon as they happen. For example, make notes about:

  • What was said
  • Who said it
  • The date
  • The time

Keep all your notes in a safe place – you may need them later.

You should also consider putting security cameras around your property. They can act as a deterrent, and also be another way of collecting evidence.

If the abuse or damage continues, or if you feel unsafe, you should contact the Police immediately. The Police may intervene to sort out the immediate problem.

You should also consider applying to the Magistrates’ Court for a <Personal Safety Intervention Order (PSIO) (link to PSIO new page).> A PSIO is a Court Order that can require your neighbour to stop the behaviour that you are complaining about.  If your neighbour breaches the Order, there are criminal penalties.

Applying for a PSIO should be a last resort because it’s unlikely you’ll ever have a positive relationship with your neighbour if a PSIO is in place.

If your property is damaged, you may wish to sue your neighbours for damages. You can file a claim in the Magistrates’ Court. There’s a six-year time limit from the time of the damage to commence legal action, but if you are going to take this action you should do it as soon as possible.

However, if you feel safe, you may also wish to consider free mediation through a service such as the Dispute Settlement Centre of Victoria.

Hazards and pests

Property hazards can cause a danger to surrounding homes because of increased fire risk, pests, and vandalism. Hazards may include uncut grass and weeds and a build-up of rubbish.

Local councils require property owners to maintain properties to prevent them from becoming unsightly. Unsightly properties can include those with:

  • Long grass
  • Excessive weeds
  • Junk in the yard, including old machinery, waste or building materials

Property owners are also required to ensure their property doesn’t pose a danger to anyone else’s health and safety, or a neighbour’s property.

You can complain to your local council if:

  • Your neighbour’s grass is longer than 30 centimetres
  • The gardens are extremely untidy
  • Building materials, machinery and waste aren’t stored away and out of sight from the street
  • Your neighbour’s yard is otherwise unsightly or posing a danger to others, or to your property

If you make a complaint to your local council, the council will inspect the property. If necessary it will ask the owner to deal with the issue.

If the owner doesn’t fix the problem, the council can issue a compliance notice, requiring the issues to be resolved by a nominated date. If your neighbour doesn’t comply, the council may get a contractor to do the work, and then your neighbour will be invoiced for the cost.

For more information, contact your local council.

We can give you advice about your neighbourhood dispute, or refer you to one of the following services for further legal assistance:

You’re not alone

Neighbourhood disputes can cause an enormous amount of stress, but knowing where to find help can make a difference. Contact us to find out more

Call us today

Last modified on December 2nd, 2020 at 11:42 am

The content on this site is information only and is not legal advice. If you need legal advice please contact us.