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When you’re running a business in South Australia, maintaining clear property boundaries is more than just good neighbourly practice – it’s also a legal requirement. For many business owners, the rules around fencing can be a confusing area, especially if you share a boundary with another commercial property or residence. That’s where the Fences Act SA – officially known as the Dividing Fences Act 1991 – comes in.
Whether you’re setting up new premises, redeveloping a site, or simply maintaining your property, it’s important to understand your obligations under the Fences Act SA. Failing to comply can lead to costly disputes, unnecessary delays, or even legal action. The good news? With the right information and some smart planning, you can manage your fencing obligations confidently and get back to focusing on your core business.
In this guide, we’ll walk through the essentials of the Fences Act SA for business owners, how it compares to rules in other states (like the NSW Fencing Act), key steps for compliance, and the legal documents you’ll need. Let’s make fencing disputes one less thing you need to worry about as you build your business in South Australia.
What Is the Fences Act SA?
The Fences Act SA, also called the Dividing Fences Act 1991 (SA), is the key piece of legislation that sets out rights and responsibilities for owners and occupiers of land with shared boundaries. While it might sound simple – who pays for a dividing fence, who can make changes, what type of fence is required – there are important nuances that every business should know.
This Act covers:
- What counts as a “dividing fence” between two properties
- When (and how) costs for building, repairing, or replacing a fence are shared
- The process for notifying adjoining owners and resolving disagreements
- Legal remedies if an agreement can’t be reached
Keep in mind, while residential properties often trigger the Fences Act SA, commercial property owners must also comply – especially in business parks, industrial estates, or mixed-use zones.
Why Do Fencing Laws Matter for Businesses?
Dividing fences aren’t just about keeping the peace with your neighbours – they’re about protecting your business operations and minimising legal risk. Here’s why fencing compliance under the Dividing Fences Act 1991 is so important:
- Clear Boundaries: Fences establish where your rights and responsibilities start and end, reducing disputes with neighbours.
- Security and Liability: A well-maintained fence can deter unauthorised entry, protect your goods, and even limit your legal liability for accidents.
- Shared Costs: Understanding the Act helps ensure you don’t pay more than your fair share – or get stuck when a neighbour doesn’t cooperate.
- Legal Compliance: Councils, insurers, and regulators often require that fences are built (and maintained) according to the law before issuing approvals or insurance coverage.
Ignoring fencing laws puts your business at risk of disputes, fines, and delays on property improvements. Knowing your obligations is a simple way to keep your business moving forward.
Do I Need to Comply With the Fences Act SA for My Business?
If your business owns or leases a property in South Australia that shares a boundary with another property, it’s almost certain that the Fences Act SA applies to you. This includes:
- Commercial buildings sharing a rear fence with another business
- Retail or hospitality venues bordering residential properties
- Industrial sites with fenced boundaries
- Offices located in mixed-use precincts
- Even car parks or vacant land can be affected
The only exceptions are where fences are required by specific property covenants, strata or community title laws, or certain government-owned sites. If you’re unsure, it’s best to speak with a legal expert for tailored guidance.
Key Steps to Comply With the Fences Act SA
Not sure where to start? Let’s break down the practical compliance steps for South Australian business owners dealing with dividing fences:
1. Identify the Boundary and Existing Fencing
Start by confirming the precise boundary line (using a property survey if needed) and the status of any existing fences – are they in good condition, compliant with local regulations, and recognised as “dividing fences” under the Act?
2. Discuss With Neighbours
If you plan to repair, replace, or build a new fence on a shared boundary, you’ll need to engage with the adjoining property owner. The Act encourages cooperation, so try to discuss proposed changes early.
3. Serve a Notice to Fence
If agreement isn’t reached informally, you are required to issue a written “Notice to Fence” under the Act. This formal notice should include:
- The proposed fencing work (repair, replace, build new)
- The type and standard of fence (in line with local council regs)
- Estimated costs and a fair cost-sharing proposal
- A request for the neighbour’s agreement or suggestions
It’s important to use the proper form and wording – this step is essential if a dispute arises later. Many business owners partner with a contract lawyer to ensure the notice is valid.
4. Negotiate and Make a Written Agreement
If your neighbour agrees (either wholly or partially), documents the terms in a written fencing agreement. This should spell out:
- Who pays what percentage of costs
- The fencing materials and standards agreed upon
- Timing and method of construction/repair
A clear agreement not only complies with the Fences Act SA but also helps avoid misunderstandings and disputes down the track.
5. Resolve Disputes Properly
If you can’t reach agreement, either party can apply to the South Australian Civil and Administrative Tribunal (SACAT) for a decision. SACAT can order contributions, set fence standards, and resolve deadlocks. Legal advice is highly recommended if things reach this stage.
6. Follow Local Council and Zoning Regulations
On top of the Dividing Fences Act, local council regulations and development codes may set higher or additional requirements for fence height, materials, appearance or placement, especially for businesses. Always check council rules (and commercial lease provisions) before starting work.
How Does the SA Fencing Act Compare to Other States?
While the dividing fences act 1991 sets the rules for SA, other states have similar but not identical laws. For example, New South Wales operates under the NSW Fencing Act 1991 (Dividing Fences Act 1991 – NSW), which shares much of the same structure but includes variations in the dispute process and local government involvement.
- SA Law: Focuses on cost-sharing, mandatory notices, and allows SACAT intervention.
- NSW Law: Requires a formal notice of proposed work and also involves the NSW Land and Environment Court as the dispute body.
- Other States: Generally have similar notice and cost-sharing provisions, with unique local rules and definitions. Always check the current law for your state or territory.
If your business operates across borders (for example, with a site in both Adelaide and Sydney), it’s crucial to understand the different legal requirements and adjust your compliance process accordingly.
What Are My Legal Obligations Regarding Fencing?
Under the Fences Act SA, your business generally has the following core obligations:
- Maintain any dividing fence so that it’s “sufficient” – meaning reasonable for the boundary and use of each property
- Contribute up to 50% of costs for necessary repairs or replacements (unless agreed otherwise)
- Issue and respond to formal notices correctly if you propose any changes or repairs
- Avoid damaging or making unapproved changes to existing dividing fences
- Comply with any SACAT ruling in case of a dispute
It’s essential to note these are minimums – council or planning overlays may set higher standards, especially in commercial and industrial zones, or if there are safety considerations (like pool fencing).
Common Fencing Mistakes to Avoid
Getting fencing wrong can lead to unnecessary conflicts, legal claims, or financial exposure. Here are some of the most common mistakes we see businesses make in South Australia:
- Building or replacing a fence without consulting (or notifying) your neighbour
- Failing to follow proper notice procedures – verbal agreements are rarely sufficient
- Using materials or designs that breach council rules or zoning overlays
- Not documenting fencing agreements in writing
- Ignoring maintenance responsibilities and letting fences fall into disrepair
- Proceeding with shared boundaries without confirming the exact boundary location
All of these are avoidable by following the right process and seeking advice when unsure. For a summary of the most frequent small business legal missteps (not just fencing), check out our detailed guide: 10 Small Business Mistakes.
What Legal Documents Will I Need?
Getting your fencing agreements and compliance in writing isn’t just best practice – it can save you from expensive disputes later on. Some of the key legal documents to consider include:
- Fencing Agreement: Outlines terms agreed with your neighbour on replacement, repair, costs, timing, and materials.
- Contract Amendment: If you need to change existing terms with a neighbouring owner due to new developments or renovations.
- Deed of Variation: Legally formalises any variance from the original fencing agreement, particularly if council permissions require a different approach.
- Lease Review: For tenants, ensure fencing rights and obligations are understood and included in commercial lease documents.
- Notice to Fence: The formal written notice required under the Fences Act SA if you need to commence works on a shared fence.
- General Contractual Advice: Especially valuable before committing to expensive repairs or new installations, or if disputes arise.
You might not need every document for every scenario, but having the essentials in place – and professionally drafted to suit your unique situation – can protect your interests and reduce your risk substantially.
Are There Other Laws or Permits I Need to Consider?
Fencing law sits at the intersection of several areas of business compliance. Depending on your business activities, property type, and location, you may also need to consider:
- Commercial Lease Agreements: As a tenant, your lease may specify who is responsible for fencing, and who bears costs. You can learn more in our article Commercial Leases Australia: A Guide for Businesses.
- Australian Consumer Law (ACL): If your property improvement or fencing relates to goods or services offered to consumers (e.g. a car park or garden centre), ACL rules on safety and fair dealing apply. Read more about Australian Consumer Law for Businesses.
- Privacy and Data Protection: Installing CCTV or security measures on fencing? Ensure your business complies with privacy obligations. Learn about CCTV Laws In Australia.
- Workplace Health & Safety (WHS): Properly maintained fencing helps meet your duty of care. Check out A Guide to Workplace Health and Safety.
- Intellectual Property Protection: Unique fence designs, brand features, or signage may be considered intellectual property (IP) – see Intellectual Property Explained.
It can be easy to overlook these additional obligations, but they’re just as important for a legally compliant, future-proof business.
What If I’m Buying or Leasing a Business Property?
If you’re buying or leasing a new business premises, don’t assume fencing issues are already handled. It’s essential to:
- Review the property file for any existing fencing disputes or agreements
- Check with the local council for any fencing notices or orders
- Confirm rights and obligations in the lease agreement or sale contract
- Inspect the boundary and fence condition as part of your due diligence
For more on this, our Checklist For Selling Your Business Australia and guides on Buying A Business Asset Sale are helpful starting points if purchasing property or business assets that include shared boundaries.
Key Takeaways
- The Fences Act SA (Dividing Fences Act 1991) sets out your core rights and duties for fences on shared commercial boundaries in South Australia.
- Business owners must consult with neighbours, serve proper notices, and share costs fairly – failing to do so risks costly disputes or fines.
- Written fencing agreements, compliance with council rules, and understanding your local obligations are all critical for business protection.
- Your lease or property purchase may carry additional fencing requirements – always include fencing in your due diligence.
- Having the right legal documents ensures clear communication, shared costs, and dispute resolution, safeguarding your business as it grows.
- For businesses with sites in other states, be aware of differences (such as in the NSW Fencing Act) and adjust your approach accordingly.
- Seeking legal advice upfront can help you avoid common mistakes and keep your business fully compliant with South Australian fencing law.
If you would like a consultation on fencing compliance or any property-related legal matters for your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat. We’re here to help you focus on what you do best – building your business!
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