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Problems with neighbours?

What should be my first step when I have a problem with my neighbour?

In general, you should attempt to resolve any dispute with a neighbour by talking and trying to reach a solution satisfactory to each of you. After all, you may be living alongside one another for years to come and it is in both your interests to be on reasonable terms.

Taking disputes with neighbours to court can be expensive for both you and your neighbour and the outcome may leave the parties bitterly antagonistic to each other. In your own interests, do not take any action over a problem before talking the matter over with your neighbour, or, if necessary, obtaining legal advice about your rights and possible remedies.

As an alternative to going to court you can take a dispute to a Community Justice Centre. At these Centres, trained mediators help people in dispute to come to a settlement. Mediators do not decide who is right or wrong, nor do they have the power to award costs or impose penalties. Community Justice Centres and Community Legal Centres may advise you to see a solicitor before mediating so that you are aware of your legal rights before negotiating a settlement to a dispute.

My neighbour peers over the fence – do I have a right to privacy?

Legally there is no right to privacy and nothing you can do about a neighbour who looks into your property or listens to what is going on there. Apart from asking the neighbour not to look into your house, you could take action such as building a higher fence, planting screening trees or shrubs, or hanging heavier curtains. If the behaviour becomes more serious as to be intimidating or harassing, you may need to seek a Personal Protection Order.

What can I do about overhanging branches?

Cutting back the branches and roots of your neighbour’s tree that protrude on to your property would usually require the consent of your local council under its Tree Preservation Order.

Orders generally cover trees above a certain size and may include large bushes, but regulations vary widely between different councils. You should check with your local council about their specific regulations before proceeding with any cutting back. Remember, if there is a preservation order and you breach it, you could be prosecuted and fined.

If a neighbour’s tree causes damage on your property, for instance by its roots lifting a driveway or a dead branch falling and knocking tiles off your roof, you may be able to sue for compensation. A court can make an order to remedy, restrain or prevent damage caused by a tree.

Can my neighbour come on to my land?

Only under certain circumstances, for instance if the neighbour has a right of way. Usually, any right of way will be described on your and your neighbour’s land title documents and cannot be ended or varied except by both of you agreeing to do so.

You can allow any person to come on to your land for a particular purpose and can withdraw the permission at any time. Once you have withdrawn permission, the person must leave immediately; if the person does not, he or she becomes a trespasser.

Without your permission, your neighbour has no right to come on to your land to retrieve something that has crossed the boundary, for instance a tree branch, a ball or an animal. Anyone who comes on to your land without your permission is a trespasser and you can sue a trespasser for any damage caused. However, a court can make an order to authorise access to a neighbour’s land for certain purposes, such as painting your house if is very close to the boundary.

How can I stop my neighbour’s noise?

The first thing to do is ask your neighbour to stop or reduce the noise or to make it only at certain times of day. If this approach fails, depending on the cause of the noise, there are various steps you can take. For example, if you are being disturbed by a party late at night, you may complain to the police who can give a noise abatement direction to the noise makers.

There are regulations that restrict the use of certain noisy items, such as lawn mowers, power tools and air conditioners, to certain times on certain days. You should approach the local council or the Environment Protection Authority if you are troubled by noise from such items.

Do I have to have a dividing fence?

There is no requirement to have a fence if you and your neighbour don’t want one. However, if, for instance, you want a fence and your neighbour doesn’t, you should get a quote for one to be built and discuss it with the neighbour.

If you don’t reach agreement, you can give the neighbour a written notice specifying the fencing work proposed. If after serving the notice you and your neighbour still cannot agree, either of you may ask the Local Court or land board to make an order about the fencing work required. If a fence is to be built, you and your neighbour usually, though not always, will have to share the cost.

Who pays for repairs to a fence?

Usually, you and your neighbour will share equally the cost of repairs to any fence between your properties. However, if the fence was damaged because either of you was careless (for instance, by a fire or by trees or structures in poor condition) then the responsible party must pay for repairs. If agreement cannot be reached about who is responsible for the repair work, a court or land board can be asked to make an order before the work is carried out.

Can I stop my neighbour burning off?

Burning off any material is prohibited under the Clean Air Act, except for cooking, recreational, agricultural and firefighting purposes.

There are also exceptions for certain local council areas in which garbage is not collected regularly. If your neighbour is burning off, you may report this to your local council or the fire brigade. If the burning off is illegal or within an area subject to a fire prevention order, the council may choose to have the matter prosecuted in a local court.

My neighbour’s dog comes into my garden – is that allowed?

Not without your permission. If you don’t give permission, or you give permission and later withdraw it, a dog on your land may be considered a trespasser and you should consider calling the local council to arrange for the dog to be removed by the dogcatcher. However, if no damage has been done, it is probably best to return the animal to your neighbour or ask the neighbour to retrieve it.
If the animal has caused damage, you can request the neighbour to compensate you. Trespass by other animals, including cattle, horses, sheep and goats, may be dealt with in the same way as that by dogs.

How can a solicitor help me?

Your solicitor can:

• Advise you of your rights in a dispute with neighbours. Once the legal questions are answered, you and your neighbour may be able to see your problem in a different light.
• Advise you of the courses of action available to you in a particular dispute. 
• Assist you with writing letters or completing forms that may be required when approaching government agencies.