PROBLEMS WITH NEIGHBOURS
When you have a dispute with your neighbour, the last thing you should do is rush to court. The most effective way of working out a solution is usually to talk and try to come to an arrangement that suits you both. After all, you could be living near each other for a long time to come, so it’s probably in both your interests to stay on reasonable terms.
If the problem persists, you should always speak to your lawyer about your rights as well as any potential ways of solving the dispute.
For instance, instead of going through the court system your solicitor may recommend that you go through mediation as a way of reaching a workable agreement while keeping costs down. A mediator will not make a strict ruling about who is right or wrong, or impose any penalties. They will simply try to settle the dispute by having you agree to a solution you both can live with. You can find out more about mediation from your solicitor.
Find out more:
Get in touch with a solicitor
When and how to complain
Can I stop my neighbour’s noise?
Noise is probably the most common source of contention between neighbours. If you are being disturbed, usually the best thing to do is to ask your neighbour to reduce their noise or to avoid making noise at certain times of the day. If that does not work, the next steps you should take depend on the circumstances.
If you are being disturbed by a party late at night you can call the police, who have the power to ask your neighbours to stop.
Your local council and the Environment Protection Authority (EPA) both have rules about when people can make noise, especially when it comes to power tools, building work and operating machinery. You can read more about these rules and the procedure for enforcing them on your local council’s and the EPA’s website.
If your neighbour keeps making noise even after you have asked them to stop, you may be able to bring proceedings in a Local Court or, in some circumstances, the NSW Civil and Administrative Tribunal.
Another alternative may be to take your dispute to a Community Justice Centre, where a mediator will help you resolve your dispute less formally.
What can I do about overhanging branches?
You should never take it upon yourself to cut branches that hang over your property without first speaking to your neighbour, local council or solicitor. That is because councils may have Tree Preservation Orders in place. What is covered by these orders varies from council to council and sometimes they will allow you to lop a portion of the tree, but not the whole tree. You can be fined if you breach a Tree Preservation Order.
Under the Trees (Disputes Between Neighbours) Act 2006 (NSW), you can apply to the Land and Environment Court for an order to “remedy, restrain or prevent damage to property on the land, or prevent injury to any person” relating to a tree in a neighbouring residential area.
Can my neighbour or their pets come onto my land?
A neighbour can generally only enter your land if you have told them they can, or if they have a right of way or other right of access to your land (called an easement). Usually, a right of way or easement will be shown in your land title documents.
People do not have any right to enter your land to retrieve something, unless you have told them they can. However, if they have entered your land previously and you have not complained, a court may consider that you have given your permission. Similarly, their pets can not come onto your property either. If, for instance, a neighbour’s dog comes onto your land, you have the right to call the dog catcher.
If you have previously told a neighbour they can enter your land (or did not object when they previously entered), you can withdraw your permission whenever you like. Once you do, they have to leave immediately, otherwise they are trespassing.
If someone trespasses on your land, or if their pet does, you have the right to sue them for any damage. That said, sometimes your neighbour can ask for a court order that lets them or their tradespeople enter your land for a limited time so that they can carry out a specific task, such as mending a fence or painting their house if it is close to the boundary.
Is my neighbour allowed to burn off?
These days, people are usually only allowed to burn off if they are cooking or if they are doing it for agricultural or recreational purposes. That said, some local councils allow burning off if there’s no regular garbage collection.
If your neighbour is burning off without permission, you can report it to your local council or to the fire brigade. If the burning off is illegal or there is a fire prevention order in place, the council may choose to prosecute your neighbour.
A person can complain of nuisance if damage is caused by a substantial and unreasonable interference with the private right to use and enjoy one’s land. For it to constitute a nuisance, the relevant activity must not be trivial or unreasonable. Examples of nuisances may include noisy animals, loud air-conditioners and interference with drainage.
If your neighbour is causing a nuisance, you should initially talk to them about the problem and ask them politely to stop or remove the nuisance. If this is not successful, you can apply to the Supreme Court of NSW for an order against your neighbour to stop the nuisance. You may also be able to ask for damages (compensation). This process may be complex and expensive, so you should consult a lawyer before taking any action.
A nuisance complaint cannot be made about a tree or trees covered by the Trees (Disputes Between Neighbours) Act 2006 (NSW).
How can a solicitor help?
Neighbourhood disputes are common. Your solicitor can advise you on how to make sure your dispute is resolved in the best possible way. They can:
- Advise you on your rights, answer any legal questions you have, and help you negotiate an outcome that suits you
- Advise you about the right way to resolve a dispute and what courses of action are available
- Write letters of complaint for you, or help you complete the forms you will need to submit to a government agency.
Do I need a dividing fence?
You do not need a dividing fence if neither you nor your neighbour wants one. If one of you would like a fence and the other would not, it is usually best to get quotes for a fence to be built and then to sort it out amicably.
Where you do not agree, the Local Court or the NSW Civil and Administrative Tribunal have the power to make an order about whether a fence should be erected. However, because of the cost and stress involved it’s often better to try mediation before you go to court or the tribunal.
If mediation is not successful, the person who wants the fence can serve a Fencing Notice on their neighbour. If you do serve a Fencing Notice and you and your neighbour still can not agree, then you can then apply to the court or tribunal for a determination.
Where a fence needs to be built, it is generally up to neighbours to split the cost. A dividing fence does not have to be the best money can buy; it only needs to be sufficient. If your neighbour wants more than this, they will usually need to pay the difference themselves.
Who should pay for fence repairs?
The general rule is that any repairs to a fence should be split 50/50. However, where the fence has been damaged because one of you was careless or reckless, then the person responsible for the damage usually incurs the cost of repairing it.
If you can not agree, then a court or land board can make an order about who should pay.
Can my neighbour look over my fence?
In NSW, there is no legal right to privacy. So if a neighbour can see into your backyard, they are allowed to look at or listen to what is going on.
Besides asking your neighbour to stop, one thing you may be able to do is to try to block their view by building a higher fence or planting shrubs or trees around the perimeter of your land. (Keep in mind that if a hedge or plant is bigger than you need and blocks your neighbour’s sunlight or view, a court can order you to remove it.)
If they are looking inside your place, you might also want to invest in heavier curtains.
If your neighbour’s behaviour starts to border on harassment or intimidation, you should contact the police and try to obtain an Apprehended Violence Order.
Find out more:
• When and how to complain
• Problems with neighbours