Purpose:

To provide for the erection, replacement, repair, and maintenance of fences, and for other related purposes.

Objectives:

• To establish a process for giving notice of intention to perform fencing work to adjoining owners.
• To allow for the submission of cross-notices containing objections or counter-proposals regarding proposed fencing work.
• To outline the conditions under which fencing work may proceed, including agreement or court adjudication.
• To provide mechanisms for dealing with situations where the whereabouts of an adjoining owner are unknown or where there is no adjoining owner.
• To enable recovery of contribution towards the cost of fencing work, including cases where a fence divides land from a public road and provides benefit.
• To confer powers upon the Magistrates Court to determine disputes and make orders related to fencing work and associated liabilities.
• To define standards for “adequate fences” relevant to different land uses, including primary production.
• To regulate the recovery of contributions for fencing work between landlords and tenants, and life tenants and remaindermen.
• To set out conditions for urgent repair or restoration of damaged or destroyed dividing fences.
• To establish powers of entry onto land for the purpose of carrying out authorised fencing work.
• To prescribe the manner in which notices under the Act are to be given.
• To clarify the application of the Act to Crown lands and council lands.
• To extinguish prescriptive fencing rights.
• To allow for the clearing of scrub near fences in certain areas.
• To ensure that minor deviations from requirements do not invalidate agreements or orders if carried out substantially in conformity.

Key Provisions:

• Notice of intention to perform fencing work: Requires a proponent to serve formal notice (Form No 1 for erection, Form No 2 for replacement/repair/maintenance) on an adjoining owner, detailing the proposed work, its estimated cost, and the amount sought as contribution.
• Cross-notice: Allows an adjoining owner to object to proposals or make counter-proposals (Form No 3) within thirty days of receiving a notice, with the proponent also having thirty days to object to counter-proposals.
• Performance of fencing work: Stipulates that work may only proceed after the notice period expires without a cross-notice, or after agreement is reached or court adjudication, with contribution generally not recoverable for work performed before entitlement.
• Powers of court: Empowers the Magistrates Court to determine disputes, approve proposals, order contributions, vary agreements or orders, determine costs and proportions, and order payment of compensation or costs.
• Definition of ‘adequate fence’: Specifies standards for a fence, including a lower-cost option for fences dividing primary production land from residential/other purposes (if less than 0.8 hectares) or conformity with local good fencing standards otherwise.
• Application to Crown and councils: The Act applies to Crown land and council land, with specific exemptions for large parcels (over one hectare) or public roads/reserves.
• Power of entry: Authorises entry onto land for carrying out agreed or court-authorised fencing work, subject to a minimum of two days’ written notice (except in emergencies).

Evidence of Compliance Requirements For Agricultural Organisations:

• Notice of intention to perform fencing work (Section 5):
  • Documentation: Serve a formal written notice (Form No 1 for erection, Form No 2 for replacement/repair/maintenance work) upon the adjoining owner.
  • Content Requirements for Form No 1 (erection):
    • State the length and position of the proposed fence.
    • State the nature of the proposed fence.
    • Include an estimate of the cost of erection.
    • Specify the amount the proponent seeks to recover from the adjoining owner.
    • Indicate whether the proponent proposes to pay compensation for loss of occupation if the fence encroaches on the adjoining owner’s land, and if so, the amount.
    • Provide the name and address of any contractor or person by whom the fence is to be erected.
  • Content Requirements for Form No 2 (replacement, repair or maintenance work):
    • State the nature and location of the proposed work.
    • State the cost of the proposed work.
    • Specify the amount the proponent seeks to recover from the adjoining owner.
    • Provide the name and address of any contractor or person by whom the work is to be performed.
  • Action: Service of notice must be effected personally or by registered post (Section 19(2)). The notice must be signed by the person giving it or their solicitor, attorney, or agent (Section 19(1)).
• Cross-notice (Section 6):
  • Time frame: If objecting to proposals, serve a cross-notice within thirty days after the service of the initial notice (Section 6(1)).
  • Documentation: The cross-notice must be in Form No 3 (Section 6(2)).
  • Content Requirements for Form No 3:
    • State to which specific proposals the adjoining owner objects.
    • May contain counter-proposals in relation to the proposed work.
  • Action: If the proponent objects to any counter-proposal in a cross-notice, they must serve written notice of their objection upon the adjoining owner within thirty days after the service of the cross-notice (Section 6(3)).
• Performance of fencing work (Section 8):
  • Time frame: The proponent may proceed with fencing work after 30 days from the date of service of the notice if no cross-notice is served, or after agreement/court adjudication. If the proponent does not proceed within 28 days (or longer period agreed/fixed by court), the adjoining owner may proceed (Section 8(3)). If work is discontinued for more than 28 days, the other party may complete it (Section 8(4)).
• Unknown adjoining owner (Section 9):
  • Action: If identity or whereabouts of adjoining owner is unknown after reasonable inquiry, the proponent may affix a notice of intention (Form No 1) on some prominent part of the adjoining owner’s land. If no cross-notice is served, work can proceed as if agreed (Section 9(1)(a)). Alternatively, apply to the court for a determination (Section 9(1)(b)).
• Standard for contribution for ‘adequate fence’ on primary production land (Section 12(7) & (8)):
  • Measurement Standards: For land of not less than 0.8 hectare used for primary production purposes, an “adequate fence” is defined as a fence that is adequate for the primary production purposes OR adequate for the residential or other purposes of the adjoining land, whichever would cost less. This determines the minimum cost for which an adjoining owner is liable to contribute.
  • Compliance Evidence: The cost of an “adequate fence” as defined.
• Power of entry (Section 18):
  • Action: For ‘authorised fencing work’ (agreed work, court-authorised work, or other Act-authorised work), entry onto land with vehicles/equipment is permitted.
  • Notice requirement: Except in emergencies, at least two days’ written notice of intended entry must be served upon the owner of the land (Section 18(2)).
  • Standard of action: Powers must be exercised as far as reasonably practicable to not cause injury to the land or property of any other person (Section 18(3)).
• Manner of giving notice (Section 19):
  • Documentation: Any notice under the Act must be signed by the person giving the notice or their solicitor, attorney, or agent (Section 19(1)).
  • Action: Service must be effected personally or by registered post (Section 19(2)).
• Record-keeping requirements: Not explicitly specified in the document beyond the requirement to serve and retain copies of formal notices (Forms No 1, 2, 3).
• Inspection or audit requirements: Not explicitly detailed as a compliance requirement for agricultural organisations; however, the court has broad powers to determine matters related to fencing work (Section 12), which may include ordering inspections or reviews as part of dispute resolution.

Metadata Keywords:

Fences Act, South Australia, Fencing law, Property boundaries, Neighbour disputes, Agricultural fencing, Primary production, Land management.

Publication Information:

Publication date: 22.6.2023, Version: 22.6.2023

Agricultural Industry Alignment:

• Agriculture
• Pasturage
• Horticulture
• Viticulture
• Apiculture
• Poultry farming
• Dairy farming
• Forestry
• Rearing of livestock
• Propagation and harvesting of fish or other aquatic organisms

Date Added to database:

This document was parsed and added to the database on 26-07-2025

URL:

https://www.legislation.sa.gov.au/__legislation/lz/c/a/fences%20act%201975/current/1975.44.auth.pdf →